Toward a Prosecutor for the European Union, Volume 1: A comparative Analysis 9781474202152, 9781849463140

Citation preview

List of Contributors Silvia Allegrezza, Lecturer in Criminal Procedure at the University of Bologna, Italy. Lorena Bachmaier, Professor at the Complutense University of Madrid, Spain. Martin Böse, Professor of Criminal Law and International and European Criminal Law at the University of Bonn, Germany. Stefan Braum, Professor of Criminal Law and Dean of the Faculty of Law, Economics and Finance at the University of Luxembourg. Pedro Caeiro, Assistant Professor of Criminal Law and Criminal Procedure at the University of Coimbra, Portugal. Miguel João Costa, Legal Adviser for criminal procedure at the Law Reform Bureau of the Government of Macao and Lecturer at the University of Macao. Valentina Covolo, PhD student in Criminal Law at the University of Luxembourg. Claudiu Dumitrescu, Chief Prosecutor in the National Anticorruption Directorate of Bucharest, Romania. Zlata Ðurd-evic´, Professor and Head of the Department of Criminal Procedure, Faculty of Law, University of Zagreb, Croatia. Birgit Feldtmann, Associate Professor and International Coordinator in the Department of Law at the University of Southern Denmark. Stefano Filletti, Lecturer at the University of Malta, visiting lecturer at the International Maritime Law Institute, senior partner at Filletti & Filletti Advocates and member of the Malta Chamber of Advocates. Jaan Ginter, Professor and Dean of the Faculty of Law of the University of Tartu, Estonia. Primož Gorkicˇ, Assistant Professor at the University of Ljubljana, Slovenia. Lorna Harris, CBE, retired Head of the International Co-operation Unit and Civil Recovery Unit in the Crown Office and Procurator Fiscal Service. Miklós Hollán, Research fellow at the Hungarian Academy of Sciences, Institute of Law of Budapest. Tricia Howse, Barrister and Former Assistant Director of the Serious Fraud Office. Robert Kert, Assistant Professor of Criminal Law and Criminal Procedure at the University of Vienna, Austria. Heleen Koggink, LL M student at Utrecht University, the Netherlands. Sebastian Knop Reventlow, Assistant Prosecutor, Nordjyllands Politi under the Danish Ministry of Justice.

xlviii List of Contributors Justyna Lacny, Head of Department of European Law of the Polish Academy of Sciences, Warsaw, Poland. Saskia Lavrijssen, Doctor and Senior lecturer in Economic Public Law at the Europa Institute of the University of Utrecht, the Netherlands, and deputy judge at the Dutch Trade and Industry Appeals Tribunal. Anca Augusta Laza˘ r, trainee magistrate at the National Institute of Magistracy of Bucharest, Romania. Augustin Laza˘ r, Professor at the University of Alba Iulia and Deputy Prosecutor General at the Prosecutor’s Office attached to the Alba Iulia Court of Appeal, Romania. Andrea Lehner, Teacher and Research Associate at the Department of Criminal Law and Criminology at the University of Vienna, Austria. Katalin Ligeti, Assistant Professor in European and International Criminal Law at the University of Luxembourg. Stefano Marcolini, Associate Professor of Criminal Procedural law, European and International Law regarding Criminal Matters at the University of Insubria, Italy. Remigijus Merkevicˇius, Associate Professor at the Vilnius University, Lithuania. Marta Muñoz de Morales, Doctor of Law at the Institute of European and International Criminal Law at the University of Castilla La Mancha, Spain. Tomas Nauta, LL M student at Utrecht University, the Netherlands. Angela Nicolae, Chief prosecutor within the Prosecutor’s Office attached to the High Court of Cassation and Justice of Bucharest, Romania. Adán Nieto Martín, Professor in Criminal Law and Vice-director of the European and International Criminal Law Institute at the University of Castilla la Mancha. Celina Nowak, Assistant Professor in the Institute of Legal Studies at the Polish Academy of Sciences and the Kozminski University, Warsaw, Poland. Lech Paprzycki, President of the Criminal Chamber of the Supreme Court of Poland and Professor of the Kozminski University. Idlir Peçi, Assistant Professor in Criminal Law and Procedure at Willem Pompe Institute for Criminal Law and Criminology, University of Utrecht, Netherlands. Martin Petschko, Researcher at the University of Luxembourg. Francesca Ruggieri, Professor of Criminal Law and Procedure, Mediation in Criminal Matters and Comparative Criminal Law at the University of Como, Secretary of the Centre of European Criminal Law and Italian Avvocato of the Court of Cassation. Andrea Ryan, Lecturer at the University of Limerick, Ireland. Marc Schiltz, Premier Substitut au Parquet de Luxembourg. Jennifer Shaw, Associate with Filletti & Filletti advocates.

List of Contributors xlix Rosaria Sicurella, Professor of Criminal Law at the University of Catania, Italy. Gintaras Švedas, Professor of Criminal Law at the Vilnius University, Lithuania. Sławomir Steinborn, Associate Professor of Criminal Procedure at the University of Gdansk. Stanisław Tosza, PhD student of Criminal Law at the University of Luxembourg. Juliette Tricot, Lecturer in Criminal Law and Criminal Procedure at the University Paris 1 Panthéon-Sorbonne, Researcher in the Collège de France. Marianne Wade, Senior Lecturer of Criminology and Criminal Law at the Birmingham Law School, Director of the LLB Law with Business programme and Director of the Institute of Judicial Administration. Thomas Weigend, Professor, Head of the Institute for Foreign and International Criminal Law, University of Cologne. Anne Weyembergh, Professor at the Université Libre de Bruxelles and Coordinator of the European Criminal Law Academic Network. Christoffer Wong, Professor of Criminal Law at Lund University, Sweden. Eleonora Zielin´ska, Professor at the University of Warsaw, head of the Law Clinic Centre.

Introduction KATALIN LIGETI

T

HE CONCEPT OF a European Public Prosecutor originated in the Corpus Juris drafted some 17 years ago.1 In 1995, a group largely consisting of academics under the chairmanship of Professor Mireille Delmas-Marty proposed a scheme to tackle the problem of non-investigation and non-prosecution of crimes against the financial interests of the EU. The Corpus Juris contained essentially three things: first, a single set of offence definitions, applicable throughout all Member States, second, a common set of procedural rules for the investigation and prosecution of these offences, and, last but not least, the European Public Prosecutor to conduct investigations and prosecutions. Looking back at the Corpus Juris with the historical distance of today confirms once more how imaginative and ambitious the vision of the authors was. It took more than 15 years to have a legal basis for the European Public Prosecutor’s Office in the EU Treaty. This is remarkable because policy developments that took place after the Corpus Juris at EU level demonstrate that the Member States—though rather indifferent to the idea of an EPPO—had to recognise at the same time that coordinated steps were necessary in respect of EU fraud and the lengthy and cumbersome procedures of international cooperation in criminal matters. The solution proposed as an alternative to the vertical model of criminal justice integration suggested by the Corpus Juris, was to apply a more horizontal model based on mutual recognition.2 Today we look back on more than 10 years of practical experience with mutual recognition in the criminal justice field. The principle of mutual recognition did certainly bring a change of paradigm in judicial cooperation. However, it did not solve the particular problem of EU fraud and other offences committed to the detriment of the EU budget. That the present Treaty, in Article 86 TFEU, provides for the EPPO is a recognition of the fact that the problems that the Corpus Juris was intended to solve are real and need to be faced. Article 86 TFEU is certainly one of the most delicate provisions of the Lisbon Treaty. It is sensitive from both a political and a legal point of view: the establishment of the EPPO—both because of its strong symbolic value and because of the potential powers it may have—clearly challenges Member States’ sovereignty and the powers, institutional

1 M Delmas-Marty, JAE Vervaele (eds), The Implementation of the Corpus Juris in the Member States, volumes 1–4, (Antwerp, Intersentia, 2000). 2 Presidency Conclusions, Tampere European Council, 15 and 16 October, 1999, points 33–37.

2 Introduction organisation and realistic aspirations of existing EU criminal justice bodies. From a legal point of view, its implementation raises a number of questions that need to be answered.3 A key issue will be the definition of the material scope of competence of the EPPO. According to Article 86(1) TFEU, the purpose of the EPPO will be ‘to combat crimes affecting the financial interests of the Union’. At the same time, however, Article 86(4) TFEU provides for extending the competence of the EPPO—by unanimous decision of the Council—‘to include serious crimes having a cross-border dimension’. The interpretation of Article 86(1) and (4) TFEU raises many legal and technical issues that will influence the room for manoeuvre available to the Member States. First, which crimes fall within the ambit of crimes ‘affecting the financial interests of the Union’? Only those that actually or potentially harm the financial interests of the EU, like fraud, for example? Or also other behaviour that indirectly affects the allocation and management of EU funds both at the European and national level, which are, however, much more linked to the proper, impartial and transparent functioning of the EU’s public administration, eg corruption?4 Furthermore, is it sound to limit the competence of the EPPO to the protection of the financial interests of the EU, a phenomenon which only indirectly touches on the lives of EU citizens compared to general cross-border criminality, for example? What is the exact relationship of Article 86(1) and (4) TFEU? Is it possible to establish the EPPO through enhanced cooperation of at least nine Member States with an enlarged competence to prosecute serious cross-border crime?5 And most importantly, does the creation of the EPPO require harmonised definition of offences falling in the competence of the EPPO? A second group of questions related to the implementation of Article 86 TFEU concerns the procedural aspects of such European office. According to Article 86(3) Member States will have to decide upon the general rules applicable to the EPPO, the conditions governing the performance of its functions, the rules of procedure applicable to its activities (investigation, prosecution, bringing to judgment), the rules of procedure governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by the EPPO in the performance of its functions. Article 86(3) TFEU leaves completely open the procedural framework of the EPPO. Should the EPPO operate on the basis of a harmonised set of European rules of criminal procedure spelling out investigative measures, prosecutorial powers, rules of evidence and procedural safeguards? Or should it rather apply the national criminal procedural laws of the Member States and rely on

3 Initial reactions were discussed at the conference ‘Quelles perspectives pour un ministère public européen: Protéger les intérêts financiers et fondamentaux de l’Union’ organised by the Cour de Cassation on 11–12 February 2010 (publication by Dalloz, Paris 2010) and the information session organised by Eurojust on 28 April 2010. Issues discussed included, inter alia, the development of the EPPO in compliance with the Area of Freedom, Security and Justice, the effects of a possible enhanced cooperation, the meaning of the establishment of the EPPO ‘from Eurojust’, the EPPO’s capacity for investigation and role of Europol and OLAF, relations between the EPPO and national authorities, the meaning of ‘crimes affecting the financial interests of the EU’, powers of investigation of the EPPO, and harmonisation of specific rules of procedure. 4 In that context it is certainly instructive to refer to the Preamble of the First Protocol to the PIF Convention, which explicitly stated that European financial interests can be affected not only by fraud, but equally by other criminal conduct such as criminal behaviour of European or national officials when managing EU funds, for example. Protocol drawn up on the basis of Art K3 of the Treaty on European Union to the Convention on the protection of the European Communities’ financial interests [1996] OJ C313––/2. 5 It is hard to imagine that the Council would agree to extend the material scope of the EPPO by unanimous decision to cover cross-border crime, on the one hand, and disagree at the same time on the establishment of the EPPO per se, on the other. In the author’s view, the EPPO’s competence cannot be extended on the basis of Art 86(4) TFEU if the EPPO is set up by enhanced cooperation.

Introduction 3 mutual recognition? Which powers should the EPPO have at all? And how can the judicial control of the acts of the EPPO be best secured? Should it be the national judge or rather a European judge authorising and reviewing the acts of the EPPO?6 Finally the institutional aspects of the EPPO need to be answered, too. What is clear from Article 86 TFEU is that the EPPO will be a supranational body within the Area of Freedom, Security and Justice and must, therefore, comply with the objectives of that area, namely ‘respect for fundamental rights and the different legal systems and traditions of the Member States’.7 Furthermore, Article 86 TFEU stipulates that the EPPO shall be established from Eurojust and not from OLAF. Within these confines, the institutional framework of the EPPO, however, is left open. Indeed, much of the debate that evolved around Article 86 TFEU after the entry into force of the Lisbon Treaty focused on the institutional aspects of the EPPO and on how to establish an EPPO from Eurojust.8 One may envisage at least three main scenarios here. One possibility would be to have a collegiate EPPO—resembling Eurojust—where the EPPO would be a body composed of prosecutors appointed by each Member State, taking majority decisions on initiating investigations and prosecutions and on resolving conflicts of jurisdiction. Each EPPO member could have the power to give binding instructions to national authorities to initiate investigations.9 Alternatively, the EPPO could be a supranational body consisting of a central office assisted by deputy prosecutors in each Member State. Under this arrangement, the deputy prosecutors would operate as satellite offices of the central EPPO in the respective Member States, with the chief prosecutor (central office) giving instructions to the deputy prosecutors to investigate and prosecute cases.10 One may also imagine a fully supranational body, where the EPPO would be a hierarchically organised service consisting of a chief prosecutor and several specialised deputy prosecutors competent to act throughout the whole EU, directly

6 It is astonishing that Art 86 TFEU is silent on the judge of freedoms. See critics on the neglected status of the judge of freedoms during the 2002 public consultation procedure on the EPP in Follow-up report on the Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM (2003) 128 final, 19 March 2003. 7 Art 67 of the Treaty on the Functioning of the European Union, [2010] OJ C83/47. 8 In 2010, Eurojust organised an information session and a strategic seminar. The information session was held in The Hague on 28 April 2010, and resulted in an informal document containing the conclusions. The strategic seminar was organised jointly with the Belgian Presidency on 20–22 September 2010 in Bruges, Doc 17625/10, REV 1, Brussels, 9 December, 2010. 9 This model has been referred to as the ‘Eurojust Plus’ model. Under this model the national members of Eurojust would have binding powers to order the start of investigations by their national authorities and to issue decisions to resolve conflicts of jurisdiction. It is open to question whether it would be possible to implement such reform of Eurojust on the basis of Art 85 TFEU. According to Art 85(1)(a) and (c) TFEU, the future regulation dealing with the powers of Eurojust ‘may include the power to initiate investigations … particularly … relating to offences against the financial interests of the Union.’ At the same time, Art 85(2) stipulates that ‘formal acts of judicial procedure shall be carried out by the competent national officials’. The meaning of Art 85(1)(a) read together with Art 85(2) is far from clear: does it mean that Eurojust—via its national members?—can order the commencement of investigations by the national authorities in the Member States? Or rather that the national members of Eurojust—as competent national officials—can commence investigations to be followed up by the national authorities in the Member States? The extent of binding powers attributed to Eurojust in the future depends not only on the interpretation of ‘to initiate’, but also on the scope of meaning of ‘investigations’. See A Weyembergh, ‘The Development of Eurojust: Potential and Limitations of Article 85 of the TFEU’ (2011) 2 New Journal of European Criminal Law 75–99. 10 See on this option JAE Vervaele, European Enforcement Agencies in the Area of Freedom, Security and Justice: the Eurojust European Public Prosecutor binomial, Proceedings of the 5th European Jurist Forum, Budapest 2009, 117–38.

4 Introduction bringing suspects to judgment before national courts. And certainly several sub-options and combinations of these models are also possible. In fact, issues of substantive competence, procedural law and institutional framework are intertwined. It is hard to imagine on the one hand a collegiate-type EPPO working on the basis of harmonised substantive and procedural provisions. On the other hand, it would make little sense to have a fully supranational EPPO working on the basis of national offence definitions and national procedural law. However, the model where the EPPO would be supported by national satellite offices in the Member States would be open to the use of both national and harmonised substantive and procedural criminal laws. Article 86 TFEU leaves it entirely to future regulation on the EPPO to define all aspects of the future office. This openness represents a challenge for the implementation. The Member States have to find the answers to the above questions at a political level. The current financial crisis will certainly strongly influence the attitude of the Member States. In June 2012 the EU Council resolved to strengthen the economic and monetary union in order to ensure growth and stability in the EU.11 In this context—as Vice President Viviane Reding recently emphasised12—the EPPO is an essential building block. It may help consolidating the economic and monetary union by strengthening taxpayers’ confidence in the functioning of the EU institutions and to protect the fundamental values on which the EU is based. According to the 2010 Commission report on the protection of the Union’s financial interests, suspected fraud amounts to approximately 600 million euros annually on the revenue and expenditure side.13 It can be assumed that this is only the tip of the iceberg. According to the experience of OLAF, offences against the financial interests of the EU increasingly have a cross-border dimension. Therefore, national practitioners who investigate these offences often do not see the whole picture, but only the national part of the case. If mutual legal assistance is sought by national practitioners, this is generally done in order to investigate and prosecute only the national part of the offence. Furthermore, even if national authorities detect an offence against the financial interests of the EU, they often limit their investigation to the national aspects of the case, ignoring its European dimension. They may feel that the European dimension hampers such cases, due to cumbersome and lengthy international cooperation.14 Though Eurojust may help to coordinate national prosecutions in the affected Member States, Eurojust implies by its nature the fragmentation of prosecution. The Lisbon Treaty provides for a set of tools to effectively counter offences against the financial interests of the EU. Under Articles 310(6), 325, 85 and 86 TFEU, the EU will have the competence to adopt criminal law provisions to protect the financial interests of the EU. As a first step, the Commission presented in July 2012 its proposal on the harmonisation

11

EUCO 76/12, Conclusions of the European Council of 28–29 June 2012, Brussels, 29 June 2012. Speech entitled ‘The future legal and institutional framework of combating fraud against the EU’s financial interests’ held on the occasion of the meeting of Prosecutor Generals and Directors of Public Prosecution of the EU, Brussels, 26 June 2012. 13 COM (2011) 595 final, and accompanying Staff Working Documents SEC (2011) 1107, 1108 and 1109 final. 14 SEC (2011) 621 final, table 2.2; and OLAF, Eleventh operational report of the European Anti-fraud Office, 1 January to 31 December 2010. 12

Introduction 5 of offence definitions in respect of offences against the financial interests of the EU.15 This should be followed by a second legislative proposal on strengthening the procedural framework for prosecuting these offence. Finally, according to the working plan of the Commission, the Commission will present a legislative proposal based on Article 86 TFEU to set up an EPPO in 2013. The adoption of the Lisbon Treaty created new momentum to discuss the details of establishing the EPPO. This book is the first of two volumes documenting the outcome of a research project titled ‘European Model Rules for the Procedure of the European Public Prosecutor’s Office’, carried out at the University of Luxemburg. The research took place in the period February 2010 to March 2012, financed under the Hercule II Programme of the EU Commission, and with co-financing by the University of Luxemburg. The aim of the research project was to elaborate a set of rules with a model character delineating the investigative and prosecutorial powers of a European Public Prosecutor’s Office (EPPO), the applicable procedural safeguards and the evidential standards. To sum up briefly, the project mainly concerned procedural law under which a future EPPO might operate. The research had two phases: the first phase of the project concentrated on a thorough analysis of 27 different national legal systems, of which 20 are published in this first volume. Two sets of detailed questionnaires were addressed to national experts in each Member State,16 covering issues related to the general aspects of criminal procedure, the attribution of investigative and prosecutorial powers, procedural safeguards and evidence. A synopsis was drafted respectively and will be published along with the Model Rules and explanatory notes in the second volume. This first volume consists of two parts. The first part contains a description of the pre-trial phase of the criminal procedure in 20 jurisdictions representing 19 EU Member States.17 Such a description, in English, covering most of the EU Member States was a major effort and stands on its own as an important contribution to comparative criminal procedure. Each national report follows a common scheme concerning financial criminal investigations. It starts with a description of the statutory basis and constitutional restraints of criminal procedural law, the general structure of criminal procedure and the main actors. This is then followed by a description of the investigative measures and prosecutorial tools available to the authorities as well as procedural safeguards. The second part is a series of legal essays dealing with key issues related to the establishment of the EPPO. These include studies of vertical cooperation in administrative investigations in subsidy and competition cases, the accession of the EU to the European Convention on Human Rights, judicial control in cooperation in criminal matters, mutual recognition, and decentralised enforcement of European competition law. Thus, this first volume contains all the background that inspired the elaboration of the Model Rules. It will be followed by a second volume which shall contain the comparative analysis of the national systems along the lines of each investigative and prosecutorial measure and procedural safeguard. Furthermore, the second volume will set out the Model

15 Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, COM (2012) 363 final, Brussels, 11 July 2012. 16 The research did not cover Cyprus, as we could not identify an appropriate expert. For the United Kingdom we had separate experts for England and Wales, on the one hand, and for Scotland on the other hand. 17 Austria, Denmark, England and Wales, Estonia, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Scotland, Slovenia, Spain and Sweden.

6 Introduction Rules, with explanatory notes in English and French. It will be concluded by a final report summarising the findings of the research and reporting on the prospects for the proposed reform. The content of this volume and the following volume represents the contributions of both academics and practitioners. This study group was composed of senior professors and younger colleagues. Their names and further details appear on page xlv. Further detailed information on the research project (participants, reports, conferences, etc) is available at the project website: www.eppo-project.eu.

1 Austria ROBERT KERT AND ANDREA LEHNER

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

T

HE PROVISIONS ON investigation proceeding in Austria were fundamentally amended in 2008.1 The former system of an investigating judge (Untersuchungsrichter) leading the investigation (Voruntersuchung and Vorerhebung initiated by the Public Prosecutor, but led by the investigating judge) was changed to a system of a uniform investigation proceeding under the direction of the Public Prosecutor. In this new investigation proceeding, the criminal police2 and Public Prosecution Service have to act together and cooperate. The Public Prosecutor leads the investigation and decides how investigations are to be conducted and whether the investigation is to be continued or concluded. In the new system there is no strict division between investigation and prosecution. The Code of Criminal Procedure (CCP) rules the procedure on the clarification of criminal offences and the prosecution of suspected persons (section 1 para 1 CCP). According to the prevailing opinion, clarification and prosecution are terms which cannot be divided, since every action aiming at the clarification of a suspicion of a criminal offence has the goal to allocate this suspicion to a certain person. Therefore there is no difference between investigations against unknown offenders and the prosecution of known suspects.3 In accordance with these principles, a criminal procedure begins as soon as the criminal police or the Public Prosecution Service investigate a person known or unknown to clarify the suspicion of a criminal offence, or as soon as coercive measures are applied against the suspected person (section 1 para 2 CCP). This means that every investigation of the facts of a case is part of the criminal procedure. There is no division between an informal phase

1 Strafprozessreformgesetz, Bundesgesetzblatt I 2004 No 19, which was passed by the Parliament in 2004 and came into force on 1 January 2008. 2 The Austrian law makes a distinction between security police and criminal police: The security police are competent to sustain the public calm, order and security and to render first aid. As soon as there is a concrete suspicion that a certain person is suspected, the work of the security police ends and the criminal police are competent for investigations. This distinction is particularly relevant for powers of the police and the requirements for investigation measures. Whereas the security police apply the Act on Security Police (Sicherheitspolizeigesetz) which rules the organisation and the exercise of means of the security police, the criminal police have to apply the Code of Criminal Procedure and have to act under orders of the Public Prosecution Service. 3 F Koenig, C Pilnacek, ‘Das neue Strafverfahren—Überblick und Begriffe’ [2008] 63 Österreichische JuristenZeitung 10, 11.

10 Austria of investigation and a formal prosecution procedure.4 There is neither room for informal investigations nor are there special provisions for a phase before a specific suspicion exists.5 Investigation (Ermittlung) is every action of the criminal police, the Public Prosecution Service or of the courts which serves for the gathering, safekeeping, evaluation or processing of information to clarify the suspicion of a criminal offence (section 91 para 1 CCP). Thus, the term of investigation covers all measures to gain or use information by which data is found, processed or used in another way including the taking of evidence.6 The investigation (Ermittlungsverfahren) shall clarify the facts of the case by investigation to the extent that the Public Prosecution Service can decide to bring a charge, to refrain from prosecution or to drop a case. Since the investigation of the facts of a case is also part of the criminal procedure, all rules of the Code of Criminal Procedure are applied from the earliest stage of procedure. A formal decision on the initiation of a criminal procedure is not necessary. As a consequence of this far-reaching term of investigation, there is no differentiation between investigation and prosecution.7 Following investigation, the Public Prosecution Service has several possibilities to finish the investigation: they can either withdraw from prosecution, drop the case, apply a diversionary measure or commit the case to trial (Anklageerhebung), which is foreseen at the end of the prosecution proceeding. When the facts of a case are sufficiently clarified and a conviction of the suspect is indicated, and if there is no reason to withdraw from prosecution or to drop the case, the Public Prosecution Service has to commit the case against the suspect to trial (section 210 para 1 CCP). By committing the case to trial, the main proceeding (Hauptverfahren), which is led by the court, begins (section 210 para 2 CCP).

2. Sources of Criminal Procedural Law The Austrian Constitution requires that the whole administration and jurisdiction may only act on the basis of statutory law (art 18 para 1 of the Austrian Federal Constitution, Bundes-Verfassungsgesetz). Although the legal text only mentions the administration, due to the whole system of the constitution it is clear that also the jurisdiction is bound to statutory law.8 Due to this principle of legality, criminal procedural rules must be based on statutory provisions. Therefore it must be determined by reference to statutory laws which acts of public prosecutors and courts are admissible. This matter must be determined precisely, and the powers of the acting organs are limited in such a way that the extent of the interference with a person’s rights is foreseeable and calculable.9 The more an act of authorities interferes with

4

Ibid 11. E Markel, ‘§ 1’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal number 25. 6 See C Pilnacek, W Pleischl, Das neue Vorverfahren (Vienna, Manz Verlag, 2005) 2. 7 Koenig, Pilnacek (n 3) 11. 8 H Mayer, Das österreichische Bundes-Verfassungsrecht, 4th edn (Vienna, Manz Verlag, 2007) 133. See also Verfassungsgerichtshof (Constitutional Court) 5 October 1989 VfSlg 12.185. 9 See eg Verfassungsgerichtshof (Constitutional Court) 5 October 1989 VfSlg 12.185; H Mayer (n 8) 136. 5

General Aspects of the Procedure 11 fundamental rights, the more precise the statutory law must be.10 It follows that investigation measures which interfere with fundamental rights in particular must be ruled by statutory law and the preconditions for such measures must be determined precisely. The regulations for investigations in criminal proceedings are contained in the Austrian CCP. Without a statutory footing, case law of Austrian courts alone is an insufficient basis for investigative acts which interfere with the rights of concerned people. Courts can interpret the statutory law and within certain limits develop law. Whereas in substantive law a development of statutory law by analogy is forbidden, in procedural law in principle analogy is not excluded. In a decision from 2007 the Austrian Supreme Court (Oberster Gerichtshof )11 extended a provision of the Austrian CCP which enables a criminal procedure to be renewed after a decision of the ECtHR. The Supreme Court said that such an application for renewal of a trial is also possible without a previous judgment of the ECtHR. Due to methodical reasons this decision was heavily criticised, since this is not seen as the closure of a loophole in the law, but as the creation of new law, which is—due to the Austrian Constitution—reserved to the Parliament and must not be done by the jurisprudence.12 Case law of the ECtHR is no basis for criminal procedural rules. Even if the ECtHR establishes an infringement of the ECHR which is binding for the state parties (Art 46 ECHR), this decision will not be directly enforceable law, but will only oblige Austria to implement the decision into Austrian law.13 In the individual case, for which the ECtHR has established an infringement of the Convention, section 363a of the Austrian CCP provides for the opportunity to renew the criminal procedure, bound by the requirements of the ECtHR’s decision. If the reason for an act which violates the ECHR is caused by a legal basis infringing the Convention, the legislation must be amended, following the decision of the ECtHR. It is not possible to apply the decision directly. As far as the case law of the ECJ is relevant to the development of European law, which is directly applicable in the Member States, it might be possible that also rules for the criminal procedure are based on case law of the ECJ, eg in the field of procedural rights.

3. Bodies Carrying out Investigation and Prosecution (a) Public Prosecution Service It is the main feature of the new Austrian investigation proceeding that Police and Public Prosecution Service investigate together ex officio or because of a report of an offence (sections 18 and 20 CCP). The Public Prosecution Service (Staatsanwaltschaft) conducts 10 See Verfassungsgerichtshof (Constitutional Court) 12 December 1985 VfSlg 10.737; Verfassungsgerichtshof (Constitutional Court) 8 October 1986 VfSlg 11.044; Verfassungsgerichtshof (Constitutional Court) 29 September 1987 VfSlg 11.455; Verfassungsgerichtshof (Constitutional Court) 13 March 1993 VfSlg 13.336. 11 Oberster Gerichtshof (Supreme Court) 1 August 2007 [2008] 130 Juristische Blätter 62. 12 For many others S Reindl-Krauskopf, ‘Die neue Erneuerung des Strafverfahrens—zulässige Analogie oder Rechtsschöpfung’?’ [2008] 130 Juristische Blätter 130. 13 W Berka, Die Grundrechte. Grundfreiheiten und Grundrechte in Österreich, 1st edn (Vienna, Springer, 1999) marginal number 329; C Grabenwarter, Europäische Menschenrechtskonvention, 4th edn (Munich, Beck 2009) § 16 marginal number 2f; M Holoubek, ‘Die Konventionsrechte als Gemeinschaftsgrundrechte und deren Anwendungsbereich’ [1996] 21 Zeitschrift für Verwaltung 28; G Lienbacher, ‘Der Öffentlichkeitsgrundsatz des Zivil- und Strafverfahrens im Österreichischen Verfassungsrecht’ [1990] 45 Österreichische Juristen-Zeitung 425, 432f.

12 Austria and supervises the investigation and decides about its progress and its termination. An investigation must not be introduced or continued against the declared will of the Public Prosecution Service (section 101 para 1 CCP). It has the right and duty to examine the reports of the criminal police and to provide professional instructions to the Police. The prosecution service files the applications to the court, if its orders need court authorisation. If due to legal or circumstancial reasons this is necessary, the Public Prosecution Service can institute further investigations, or the exercise of coercion by the criminal police (section 101 para 4 CCP). (b) Police The criminal police lead the criminal investigations under the control of the Public Prosecution Service. They have to obey the orders of the Public Prosecution Service and in cases of coercive measures, which must be approved by a judge, also the orders of the court (section 99 para 1 CCP). For several investigation measures which require an order of the Public Prosecution Service it is provided that the criminal police may carry out these measures on their own, if there is imminent danger. In this case the criminal police must ask for approval immediately. (c) Investigative Judge In 2008 the role of the investigative judge (Untersuchungsrichter) who carries out investigations on her/his own was abolished in Austrian criminal procedure. The goal of the reform of criminal procedure was to limit the competencies of the court during the investigation to the protection of fundamental rights, the preservation of evidence and the legal protection. The investigation is not the task of the court, but of the Public Prosecution Service and the Police. Now the court has two functions in the investigation: (1) the taking of certain evidence and the authorisation of means of coercion, and (2) the decision about remedies against acts of the Police and the Public Prosecution Service. In the taking of evidence, the reconstruction of a crime and the adversarial hearing (kontradiktorische Vernehmung) of witnesses and of the accused must be executed by the court. The reason for that is that these forms of taking evidence are not normally reenacted in the main trial, but can have an important value as evidence.14 Moreover the Public Prosecution Service can apply for the taking of evidence by the court, if the case is of special public interest due to the importance of the criminal offence and the suspected person (section 101 para 2 CCP).15 An important task of the court is the authorisation of means of coercion for which the law foresees that an authorisation is necessary. The court has to decide on applications for the imposition of pre-trial detention and has to authorise certain other coercion means (section 105 para 1 CCP). It has to set a time limit, after which the authorisation becomes invalid.

14

For more detail see sections B2(c) and B3(c). See E Fuchs, ‘Gerichtliche Stoffsammlung im Ermittlungsverfahren’ [2008] 63 Österreichische JuristenZeitung 102. 15

General Aspects of the Procedure 13 Finally, the court is competent in the investigation for remedies of concerned persons who claim that their personal rights have been violated by the Public Prosecution Service, where the exercise of their rights according to the CCP was denied, or a measure of investigation or coercion was ordered or carried out by violating a provision of the CCP (Einspruch wegen Rechtsverletzung; section 106 para 1 CCP). In these cases a single judge at the regional court is competent to decide on this remonstrance. (d) Specialised Agencies There is a specialised central Public Prosecution Service for the Prosecution of Economic Crimes and Cases involving Corruption (Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und Korruption), which was first established in 2009 competent only for corruption cases, but since September 2011 also competent for economic crimes. It is one agency seated in Vienna and competent for the whole territory of Austria (whereas normally public prosecution offices are only competent for a certain court district). It is competent for economic crimes with losses of more than 5 million euros and cases of corruption (section 20a CCP). In corruption cases the economic and corruption office of the Public Prosecution Service leads the investigation in cooperation with the Bundesamt zur Korruptionsprävention und Korruptionsbekämpfung (Federal Office for corruption prevention and the fight against corruption).16 In cases of fiscal offences falling into the competence of the courts (in cases of tax evasion involving more than 100,000 euros or smuggling cases of more than 50,000 euros) there is a special authority, the Fiscal Offence Prosecution Authority (Finanzstrafbehörde). The Finanzstrafbehörde is competent for the clarification and prosecution in duty of the criminal prosecution (section 196 Finanzstrafgesetz/Act on Fiscal Offences).17 The Finanzstrafbehörde has to perform the tasks, for which it has got the competence of the criminal police. Within the criminal procedure, by which fiscal offences are prosecuted, the Finanzstrafbehörde ‘by act of law’ is given the position of a private party (Stellung eines Privatbeteiligten).

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle In principle, the Austrian criminal procedure follows the legality principle. The criminal police and Public Prosecution Service are obliged to investigate and prosecute ex officio every suspicion of a criminal offence of which they become aware (section 2 para 1 CCP). Such suspicions may not be based on pure speculation, but the criminal prosecution starts at the point when there are concrete indications of a criminal offence. At this point the preventive fight against criminal offences of the security police (Sicherheitspolizei) ends, and the criminal procedure begins. This means it is necessary that concrete facts exist, and

16 See Bundesgesetz über die Einrichtung und Organisation des Bundesamtes zur Korruptionsprävention und Korruptionsbekämpfung, Bundesgesetzblatt I 2009 No 72. 17 The Finanzstrafbehörden are also competent to deal with all fiscal offences not falling into the competence of the courts in a purely administrative fiscal penal procedure, where they are in first instance the deciding authority.

14 Austria due to criminalistic experiences it must be possible that a criminal offence has been committed. But it is not necessary to have a strong or ‘sufficient’ suspicion.18 Following from the legality principle, criminal police, Public Prosecutors and courts may, when exercising their functions, only interfere with personal rights as far as this is explicitly foreseen in statutory provisions and as far as this is necessary to fulfil their task. In principle, there is no discretion to prosecute or not to prosecute. The legality principle shall guarantee that political or other legally not relevant criteria are not decisive for the prosecution.19 The Public Prosecutor has to consider, whether due to the state of facts and the legal provisions there are sufficient reasons for a (further) prosecution. But if they are sufficient, there is—in principle—a duty to prosecute. There are some exceptions and limitations of the legality principle in Austrian criminal procedure: on the one hand it is provided that for reasons of procedural economy the Public Prosecutor may refrain from prosecution of individual criminal offences and discontinue the investigative proceedings, if a person has been charged with several punishable acts and (i) this individual offence will most likely have no major impact, either on the punishments or preventive measures, nor on the legal consequences connected to the conviction or the diversionary measures, or (ii) the accused has already been punished abroad for the punishable act with which s/he has been charged, or the punishable act was withdrawn from prosecution following diversionary measures, and it is not anticipated that the domestic court will impose a more severe punishment, or that s/he will be extradited to another state for having committed other offences, and the punishments to be expected in Austria will not matter in comparison to those that will most likely be imposed abroad (section 192 CCP). Moreover Austrian legislation provides that the Public Prosecutor must refrain from prosecuting a punishable act that only carries a fine or a maximum prison term of three years due to the pettiness of the offence under certain conditions (minor annoyance of the offence, no necessity for special and general prevention: section 191 CCP). In these cases the Public Prosecutor has in reality no discretion, but is bound to the legality principle and if the requirements are fulfilled, must refrain from prosecuting.

5. The Status of the Accused/Defendant One of the most important changes in the new Austrian criminal investigation concerns the identification of the ‘accused’. A ‘substantive’ term of accused was introduced and replaced the former more formal understanding. Now the position of the accused can arise from objective suspicion, on the one hand, or from the activity of the criminal prosecution authorities, which is recognisable from outside on the other hand.20 An accused is any person who due to specific facts is concretely suspected of having committed a criminal offence (section 48 fig 1 CCP). If it is objectively clear that the investigations are directed against a specific person as potential perpetrator this person is always an accused. This

18 19 20

See Markel (n 5) marginal no 26. S Seiler, Strafprozessrecht, 11th edn (Vienna, Facultas, 2010) 28. Koenig, Pilnacek (n 3) 58.

General Aspects of the Procedure 15 means that from the outset, at the first investigation of the criminal police which is directly directed at a specific person, that person has all the rights of the accused.21 With that far-reaching term of ‘accused’ the status of an accused begins at an early stage of procedure and the term of ‘suspect’ no longer has any significance and is no longer used in the Austrian CCP. As soon as there is a concrete suspicion and investigation measures against this person or a third person (witness) have been conducted, the person has the status of an accused.22 6. Specialised Procedure for Financial Criminal Investigations Financial criminal investigations are—as pointed out above—led by the Fiscal Offence Prosecution Authority (Finanzstrafbehörde), as soon as there is any suspicion of a fiscal criminal offence. In principle the Fiscal Offence Prosecution Authority has the same tasks and competencies as the criminal police in other criminal cases. The Fiscal Offence Prosecution Authority has to apply the provisions of the CCP (section 195 of the Act on Fiscal Offences, Finanzstrafgesetz, FinStrG), which is a standard basis for investigation proceedings. Therefore in principle there are no specialised procedural rules for financial criminal investigations.23 However, the Act on Fiscal Offences provides for powers for the Fiscal Offence Prosecution Authorities which are not ruled in the CCP. The Fiscal Offence Prosecution Authorities are authorised to undertake investigations which are not provided for in the CCP, having eg the power to make inspections and examinations according to the tax and monopoly provisions, the right to obtain information from providers of public telecommunication services and of postal services (section 99 para 3 and 4 FinStrG) and the right to inspection concerning the cadastral register, the commercial register and the central register of motor vehicles (section 120 para 3 FinStrG). Also in fiscal criminal offence cases the Public Prosecution Service conducts and supervises the investigation. There is no special prosecution service for financial investigations. Since September 2012 in cases of fiscal offences involving sums of more than 5 million euros, the central Public Prosecution Service for the Prosecution of Economic Crimes and Corruption cases has been competent to lead the investigation. 7. Legal Persons The criminal liability of legal persons is regulated in the Act on the Responsibility of Entities for Criminal Offences (Verbandsverantwortlichkeitsgesetz, VbVG). Throughout this new Act, organisations can be found responsible for all criminal offences. In principle, the VbVG foresees the rules of the CCP also applying to proceedings against legal entities (section 14 para 1). However, this provision has two exceptions: if a rule only applies to 21

Pilnacek, Pleischl (n 6) 32f. See R Kier, ‘Beschuldigten- und Verteidigungsrechte im neuen Ermittlungsverfahren’ [2008] 63 Österreichische Juristen-Zeitung 180. 23 For financial investigations concerning offences which fall into the competence of the administrative fiscal authorities, the Finanzstrafgesetz contains rules which have been adapted to those in the Code of Criminal Procedure. Eg the rules on questioning the accused correspond in principle with those in the Code of Criminal Procedure. 22

16 Austria natural persons or a provision in the VbVG provides different rules, the rules of the CCP do not apply.

B. INVESTIGATION MEASURES

1. General Aspects (a) Requirements and Approval Procedure for Investigation Measures In order for investigation measures to be carried out according to the law, certain formal and substantive prerequisites are required. Whereas the substantive prerequisites vary widely between the offences,24 the formal prerequisites can be divided into four groups, depending on the gravity of the measure’s interference with the rights of the person concerned. The first group contains measures which can be executed by the criminal police at their own discretion, the second measures which require the order of the Public Prosecution Service, the third measures which require an order of the Public Prosecution Service on the basis of a court authorisation, and the fourth group contains measures which require the decision of a court. For cases of imminent danger, the law foresees provisions for certain emergency procedures. There are two different situations: investigation measures which only have to be ordered by the Public Prosecutor may be executed by the criminal police in any case at their own discretion (section 99 para 2 CCP). For investigation measures which require an order by the Public Prosecution Service based on a court authorisation, an explicit provision in the law is needed.25 However, in both alternative situations the criminal police immediately have to ask the Public Prosecutor for approval of the investigation. If the Public Prosecutor does not approve the measure, the criminal police have to terminate it without delay and to recover the original status as far as possible.26 As a general principle, which is enshrined in section 5 CCP, all investigation measures may only be carried out by the criminal police, the Public Prosecution Service or the court, if they are explicitly foreseen in the law, are necessary to fulfil the task and are proportionate with regards to the gravity of the offence, the degree of suspicion and the aspired success. The procedure for the approval of an investigation measure is as follows, depending on whether only an order by the Public Prosecution Service or additionally an authorisation by the court is needed. First, the criminal police contact—in practice mostly by telephone— the Public Prosecutor. Subsequently and on the basis of the statement given by the police, the Public Prosecutor decides upon the execution of the investigative measure and gives the order for its execution or not. If an authorisation by the court is needed, the Public

24 Substantive prerequisites are especially the degree of suspicion and the type and gravity of the offence. Note that due to lack of space not all substantive prerequisites of all different investigation measures can be described in this article. 25 B Oshidari, ‘Ermittlungsmaßnahmen—Aufgaben und Befugnisse von Kriminalpolizei und Staatsanwaltschaft’ [2008] 63 Österreichische Juristen-Zeitung 138, 139. 26 Ibid 139.

Investigation Measures 17 Prosecutor has to submit an application for authorisation of the order to the court.27 If the court authorises the measure, it lies in the discretion of the Public Prosecutor, whether s/ he orders the execution of the measure or not.28 In its authorisation the court has to set a time limit for the execution (section 105 para 1 CCP). The authorisation expires, when the set time limit lapses.29 According to the doctrine, authorisations just reproducing the wording of the law or just referring to the application of the Public Prosecutor are against the law. Hence, the use of a stamp or of pre-printed forms for decisions authorising means of coercion is seen as being contrary to the law.30 The Austrian Supreme Court, however, has decided that the explicit referral by the court to the reasoning of the application (at the same time representing the order) of the Public Prosecutor is sufficient for an adequate reasoning of the court.31 In case the accused has to be notified of an investigation measure and s/he has granted a defence counsel powers of attorney, all necessary documents shall be sent (only) to the defence counsel (section 83 para 4 CCP). However, summons to the trial, judgments in absence of the offender and proposals for withdrawal from prosecution (diversion) have to be sent to the accused and the defence counsel.32 (b) Execution of Investigation Measures Basically, all investigation measures are carried out by the criminal police under control of the Public Prosecution Service.33 However, if the Public Prosecutor considers, for legal or factual reasons, that it is advisable to take part in the investigations or to execute a measure entirely herself/himself, section 103 CCP allows her/him to do so. The Public Prosecutor may as well appoint an expert therefore. For fiscal offences falling into the competence of the courts the Fiscal Offence Prosecution Authority is competent for the clarification and prosecution in duty of the criminal justice. Therefore the Fiscal Offence Prosecution Authority performs the tasks, and assumes the competence of the criminal police.34 (c) Restrictions Section 144 and section 157 para 2 CCP foresee that the protection of a professional privilege must not be circumvented by the order or execution of investigative measures. Otherwise the investigation act is null and void. Section 155 para 1 fig 1 CCP stipulates that it is prohibited to examine (Verbot der Vernehmung) a cleric from a church or religious community existing in Austria about facts which a person confided to him during confession. According to section 157 para 1 fig 2 to 4 CCP, defence counsels, attorneys-at-law, patent

27 Note that in practice application and order of the Public Prosecutor overlap: A Tipold, ‘§ 86’ in H Fuchs, E Ratz (Eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 8. 28 F Eigner, ‘Die neue Ermittlungsarbeit der Kriminalpolizei’ [2008] 63 Österreichische Juristen-Zeitung 478, 482. 29 Seiler (n 19) 174. 30 C Bertel, A Venier, Strafprozessrecht, 5th edn (Vienna, Manz Verlag, 2011) marginal nos 166 and 195; Tipold (n 27) marginal no 8. 31 Oberster Gerichtshof (Supreme Court) 26 August 2008 14 Os 109/08y. 32 Seiler (n 19) 94. 33 Ibid 169, 173. 34 For further information regarding the fiscal offence prosecution authority, see section A6.

18 Austria attorneys, notaries public, economic trustees (Wirtschaftstreuhänder), psychotherapists, psychologists, probation officers, media owners, media staff members and others—specified in the above-mentioned figures—are entitled to refuse to give evidence about facts with which they became acquainted in their respective capacities (Aussageverweigerungsrecht).35 If the holder of a professional privilege herself/himself is strongly suspected (dringend verdächtigt) to have committed the punishable act, however, the professional privileges do not apply (section 144 para 3 sent 1 CCP).36 (d) Documentation The performance of investigations shall be documented in official memoranda (Amtsvermerke, section 95 CCP), whereas gatherings of evidence (Beweisaufnahmen) shall be documented in protocols (Protokoll) as defined in section 96 CCP. According to the Explanatory Remarks to the governmental bill about the draft of a Criminal Procedure Reform Act, inspections (Augenschein), reconstructions of punishable acts (Tatrekonstruktion) and interrogations (Vernehmung) are gatherings of evidence.37 Whereas the law explicitly provides that inspections are documented in official memoranda,38 reconstructions of punishable acts and interrogations have to be documented in protocols. Other measures of investigation are documented in official memoranda.39 In practice, for seizure and search of premises, there exists a special form which has to be filled out by the criminal police or Public Prosecution Service. Both the official memorandum and the protocol have to be in writing, at least to such an extent that the main content of the performed investigation is understandable. The big difference between official memoranda and protocols is that the protocol has to fulfil more formal requirements and has to be undersigned by all persons participating in the execution of the measure, whereas an official memorandum only has to be undersigned by the officer who wrote the memorandum.40 After explicit inquiry of the questioned person, it is allowed to make audio records or audio and video records of an interrogation. In this case it is required that the whole interrogation is recorded. In the case of the interrogation of a witness, this is not allowed, if the witness contradicts the recording (section 97 para 1 CCP). (e) Legal Remedies in Criminal Investigation There are two remedies in criminal investigation, depending on whether the court or the Public Prosecution Service (or—in a very limited form—the criminal police) has been acting. If the court is authorising a coercive measure which violates the law, the accused as far as her/his interests are directly concerned, the Public Prosecutor, and third parties who

35 S Reindl-Krauskopf, ‘§ 144’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) § 144 marginal nos 8, 17 and 18. 36 Note that there is an exception as regards data mining operations. 37 EBRV 25 BlgNR 22 GP, 125. 38 s 149 para 2 CCP; Report of the Judicial service committee to the governmental bill 25, 406 BlgNR 22 GP, 19. 39 For undercover investigations, this is explicitly foreseen in s 131 para 3 CCP. 40 M Vogl, ‘§ 95’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag 2002) marginal no 5.

Investigation Measures 19 are affected by the decision can file an appeal (Beschwerde) pursuant to section 87 CCP to the Higher Regional Court (Oberlandesgericht). If the Public Prosecution Service orders a coercive measure or the criminal police execute it under breach of the provisions of the Austrian CCP, but this execution or order was covered by a court authorisation, the person concerned may directly file an appeal.41 Every person who asserts that his or her subjective rights were infringed by the Public Prosecution Service, because either (i) the exercise of a right according to the CCP was denied, or (ii) an investigation or coercive measure was ordered or executed by violating the provisions of the CCP is entitled to file an objection due to a violation of rights (Einspruch wegen Rechtsverletzung) to the court (single judge at the Regional Court, section 106 CCP).42 Against the decision of the court, the Public Prosecution Service, the accused, and every other person to whom the exercise of a right was refused directly by the decision or who gets duties or who is concerned by a coercive measure, may file an appeal against the decision which is decided by the Higher Regional Court (section 107 para 3 CCP). It is also possible to consolidate these two remedies, if the person concerned wants to file both an appeal and an objection (section 106 para 2 CCP). In this case the Higher Regional Court decides about the appeal and the objection. Originally the law provided an objection as well, when subjective rights were infringed by the criminal police. However, in December 2010 the Austrian Constitutional Court repealed that provision, since it was seen as a violation of the principle of division of judicial and administrative powers (stated in Art 94 of the Constitution).43 The consequences of this decision are that there is only a remedy to a court against the acts of the criminal police, if the act is ordered by a court or the Public Prosecution Service. If the criminal police act without an order by a court or the Public Prosecution Service, there is no judicial control by a court in the frame of the criminal procedure. If it is a coercive act (Zwangsakt), eg seizure of objects, identity verification and arrest, the person concerned may file a complaint against acts of immediate administrative instruction and compulsion (Akte unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). These complaints are decided by the Independent Administrative Panels of the Provinces44 (Unabhängige Verwaltungssenate der Länder).45 If the act of the criminal police is not an act of immediate administrative instruction and compulsion, there is now no remedy against the act of the police. Thus, if ‘only’ the accused’s procedural rights are violated (eg the right to access to file is denied, a motion to take evidence is denied by the police, the accused does not get the chance to contact a defence lawyer or the police do not inform the arrested accused of her/his right to have another person informed about her/his arrest), there is no legal remedy.46 For these aspects there is a lack of legal

41

Seiler (n 19) marginal no 655. EBRV 25 BlgNR 22 GP, 141. 43 Verfassungsgerichtshof (Constitutional Court) 16 December 2010 [2011] 133 Juristische Blätter 160. 44 These Administrative Panels are not courts in the meaning of the Austrian Constitution, but they are tribunals in the meaning of Art 6 ECHR. Their decisions have no consequence for the criminal procedure and are not even reported in the criminal files. 45 See for more details S Reindl-Krauskopf, ‘UVS oder Strafjustiz: Wer kontrolliert die Kriminalpolizei?’ [2011] 133 Juristische Blätter 345, 348ff. 46 See M Burgstaller, Comment on Verfassungsgerichtshof G 259/09 [2011] 133 Juristische Blätter 171ff. 42

20 Austria protection.47 At the moment it is not clear how the legislator will react to the decision of the Constitutional Court. (f) Special Body in Charge of Controlling the Execution of Investigation Measures A so-called legal protection-attorney (Rechtsschutzbeauftragter—see section 147 CCP) is in charge of examining and controlling the order, authorisation and execution of interceptions of telecommunication traffic data, surveillance of messages, certain forms of optical and acoustic surveillance, systematic undercover investigation, certain fictitious purchases and data mining operations. Thus, the Public Prosecutor has to transfer the order, the court authorisation and copies of all documents, which can be important for the evaluation of the grounds for the order and authorisation, to the legal protection-attorney. Subsequently, s/he may file an objection against the order of the Public Prosecutor or an appeal against the court authorisation. After termination of the measure, the legal protection-attorney may seek the destruction of all or part of the results of an investigation measure.

2. Pre-Trial Questioning of the Accused (a) Degree of Suspicion and Type/Gravity of Offences If there is a concrete suspicion against a person, s/he is to be questioned as accused. Before there is a concrete suspicion, inquiries (Erkundigungen) are admissible. But as soon as there is a concrete suspicion, inquiries are no longer allowed, since they must not serve to avoid the application of rules on questioning of a suspect. As soon as it is clear whether a person is an accused or a witness, the rules on questioning must be applied (section 152 para 1 CCP). The rules on questioning of the accused are applied for all types of offences. (b) Restrictions Before the questioning the accused must be informed of which offence s/he is suspected. S/he has to be informed that s/he is entitled to turn to her/his defence lawyer for advice. Moreover the information must be given to him/her that s/he has the right to refuse any statement and that her/his statement can be used against her/him. This follows from the principle nemo tenetur se ipsum accusare, which the Austrian Constitutional Court derives from the accusation principle (Art 90 para 2 of the Constitution).48 This principle is defined in detail in the new Austrian CCP. The accused must not be forced into self-incrimination. S/he is always free to make a statement or to refuse to answer questions. S/he must not be forced or disposed to say anything by means of coercion, threats or false pretences (section 7 para 2 sent 2 CCP). It is not allowed to

47 See C Pilnacek, ‘VfGH durchlöchert Rechtsschutz in Strafprozess’, Rechtspanorama 17.1.2011, Die Presse 2011/03/04. 48 Verfassungsgerichtshof (Constitutional Court) 22 June 1966 VfSlg 5295, Verfassungsgerichtshof (Constitutional Court) 3 March 1984 VfSlg 9950; Verfassungsgerichtshof (Constitutional Court) 25 September 1990 VfSlg 12.454.

Investigation Measures 21 promise anything to the accused to dispose her/him to a confession or other statements. The freedom to make up her/his mind and to manifest her/his will, as well as using her/ his memory and her/his capacity to understand, must not be impaired by any measures or any interventions in her/his physical integrity (section 164 para 4 CCP). If the accused is prepared to make a statement, this statement has not to be true. The duty to say the truth would offend against the principle that the accused must not be forced to incriminate herself/himself. Therefore the accused is treated in a different way from witnesses who are obliged to tell the truth when they give evidence. Furthermore, a wrongful statement must not result in any disadvantage to the accused. But a confession can be taken into account in mitigation, if it was remorseful and the statement made a contribution to finding the truth (section 34 para 1 fig 17 CC). For her/his defence the accused may also say that witnesses, who incriminate him/her, are telling lies and therewith blame him/her for wrong evidence. This is allowed as it is a necessary defence.49 However it is not permitted for the accused to blame someone against better knowledge for the offence s/he has committed herself/himself (see section 297 CC). To guarantee that the accused can decide freely which question s/he answers, questions should be easy to understand and a certain and clear answer must be possible. ‘Catch’ questions are without any exception forbidden (section 164 para 4 CCP). Leading questions may only be asked, if this is necessary for the understanding of the context. In principle it is provided that the accused has the right to consult a defence lawyer before the (first) hearing (section 164 para 1 CCP). If it seems to be necessary to avoid any impairment of the investigations or the evidence, before taking the accused to prison, this contact may be monitored as well as limited to the extent necessary for granting powers of the attorney and obtaining general legal advice (section 59 para 1 CCP). Moreover the accused has the right for his attorney to be present during the whole interrogation (section 164 para 2 CCP). But the defence lawyer must not take part in the hearing. Only after the end of the questioning may s/he ask additional questions to the accused. A consultation on the answers of specific questions during the questioning is not admissible. Only general legal advice is allowed.50 (c) Special Forms Austrian legislation provides for the opportunity of a so-called adversarial interrogation (kontradiktorische Vernehmung) of the accused (and of the witness) (section 165 CCP). The adversarial interrogation is carried out by the court and the Public Prosecution Service, the accused, the victim, the private party concerned (Privatbeteiligter) and their representatives have the occasion to participate in the questioning and to ask questions (section 165 para 2 CCP). An adversarial interrogation is admissible, if there is a risk that an interrogation in the trial will not be possible for factual or legal reasons. This special form of questioning permits the protocol of the questioning to be read in the trial.

49 Oberster Gerichtshof (Supreme Court) 1 October 1956 5 Os 621 EvBl 1956/358; Oberster Gerichtshof (Supreme Court) 28 August 1974 Os 51/74 SSt 45/18. 50 Kier (n 22) 183.

22 Austria (d) Special Rules for Legal Persons It is provided in the Act on the Responsibility of Entities for Criminal Offences that the decision-maker of a legal entity (association) and staff members, who are suspected of having carried out the criminal actions under investigation, must be summoned and questioned as accused (section 17 para 1 VbVG). Before the questioning begins, the decisionmaker or the staff member must be informed of the criminal offences the association is charged with. Then s/he is to be instructed that s/he has the right to make a statement on the matter or not to make a statement, and beforehand to consult with her/his defence lawyer. He must also be advised that on the one hand his/her statement will serve as a defence both for himself and for the prosecuted association, but on the other hand it may be used as evidence against him and against the association also (section 17 para 2 VbVG). (e) Formal Requirements In most cases the questioning of the accused is executed by the police; in more complex and important cases it is sometimes conducted by the Public Prosecution Service. Adversarial interrogations are carried out by the court (a single judge in the investigation). The measure does not require authorisation. The accused is obliged to attend the questioning (section 153 para 2 CCP), but is not obliged to answer the questions or to say the truth. If the accused does not come to the interrogation, s/he can be forced to appear, if this was explicitly threatened in the summons. An accused who is unable to sufficiently communicate in the language of the proceeding has the right to get help in interpretation. As far as this is in the interest of the judicature, particularly if this is necessary to guarantee the defence rights of the accused, the assistance in communication must be carried out by an interpreter (section 56 CCP). This particularly applies to the legal instructions and to interrogations.

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) (a) Degree of Suspicion and Type/Gravity of Offences For the interrogation of witnesses, it is not necessary that the offender is known and that a person is suspected. This measure is applied to all types of offences. (b) Restrictions In principle, every witness is obliged to give evidence, to tell the truth and to say everything s/he knows (section 154 para 2 CCP). But the Austrian CCP contains provisions on the prohibition of hearing certain persons as witnesses (Verbot der Vernehmung von Zeugen), on the release from giving evidence (Aussagebefreiung), and on the refusal to give evidence (Aussageverweigerung).51 51

583.

See R Nimmervoll, ‘Zeugnishindernisse im neuen Strafverfahren’ [2008] 63 Österreichische Juristen-Zeitung

Investigation Measures 23 There is a group of persons who must not be heard as witnesses, as their testimony would be null and void (section 155 CCP): these are eg clergymen regarding matters which were confided to them during confession or otherwise under the pledge of clerical confidentiality, and persons who are incapable of telling the truth due to a mental disease, a mental handicap or for some other reason. Another group of persons is released from the obligation to testify (section 156 CCP). These persons must be informed on their right to be released. They may only be interrogated if they explicitly have renounced this right. Otherwise their statement is completely void (section 159 para 3 CCP). Persons who are released from their obligation to testify are persons who shall give evidence against a relative (according to section 72 CC), and persons who might have been injured by the punishable act the accused has been charged with and who have not reached the age of 14 at the time of their interrogation, or who might have been injured sexually, if the parties had an opportunity to take part in an earlier adversarial interrogation. Furthermore there are persons who have the right to refuse to give evidence (section 157 CCP):52 these are on the one hand persons who would otherwise expose themselves or a relative to the risk of criminal prosecution or, in connection with criminal proceedings against them, would expose themselves to the risk of further incriminating themselves beyond their earlier testimony; moreover members of certain professions, eg attoneys-atlaw, notaries and public chartered accountants with regard to matters that have come to their attention in their respective capacities; specialists in psychiatry, psycho-therapists, probation officers, mediators or publishers with regard to questions that relate to the person of the author. Witnesses who may refuse to give evidence must actively refuse to give evidence and must plead this right. Unless they do so, even though they have been informed, they may be interrogated. Finally, certain persons may refuse to answer individual questions, eg persons who would thereby expose themselves or a relative to disgrace or the risk of an immediate or significant property-law disadvantage, or persons who were or might have been violated sexually, on account of the offence with which the accused is charged, whenever they would have to disclose details of the offence, the description of which is regarded as being unreasonable for them. They may refuse to answer individual questions, but nevertheless they may be urged to give evidence, in spite of their refusal to do so, if this is indispensable for the object of the proceedings on account of the special significance of their statement. (c) Special Forms of the Measure Also for the interrogation of witnesses the opportunity of a so-called adversarial interrogation (kontradiktorische Vernehmung) (section 165 CCP) is provided for.53 In practice it is more frequently used for witnesses than for accused persons. Particularly relating to victims of sexual offences and children it is prevalently applied to avoid these persons having to come to the (public) trial to be questioned once again. For the examination of witnesses it is provided that the opportunity to take part in the adversarial interrogation shall be restricted—particularly with regard to her/his young age, or her/his mental or physical

52 53

Reindl-Krauskopf (n 35) § 144 marginal nos 8, 17 and 18. See section B2(c).

24 Austria state, or in the interest of finding the truth—(upon application by the Public Prosecutor or ex officio) to such an extent that the parties in the proceedings and their representatives can follow the interrogation and exercise their right to ask questions by using technical equipment for audio and video transmission without being present during the interrogation. Particularly if a witness has not yet reached the age of 14, in such cases an expert may be asked to conduct the examination. In any event care shall be taken that there is no encounter between the witness and the accused, as well as other parties to the proceedings (section 165 para 3 CCP). A witness who has not yet reached the age of 14 and might have been injured sexually by the offence with which the accused has been charged, shall in any case be examined by the court in this way (section 165 para 4 CCP). (d) Duty to Cooperate with the Investigative Authorities The witness is obliged to cooperate with the investigative authorities. S/he has to come to the interrogation and has to answer the questions correctly and completely (section 154 para 2 CCP). If the witness does not come to the interrogation in the investigative proceeding, s/he can be forced to appear, as far as the witness was threatened with this in the summons (section 153 para 2 CCP). If the witness does not tell the truth, this can lead to a criminal prosecution for false testimony. (e) Formal Requirements Normally the interrogation of witnesses in the investigative proceeding is carried out by the criminal police. But the Public Prosecutor can also execute the interrogation, particularly in difficult cases. If it is an adversarial interrogation of a witness, the interrogation is carried out by the court. Authorisation is not required.

4. Arresting the Suspect, and Detention for Questioning (a) Degree of Suspicion, and Grounds for Arrest There must be concrete grounds for suspicion that the arrested person has committed a criminal offence. Vague speculation is not sufficient. For an arrest, it is necessary that one of the following grounds for arrest exists: (i) the suspect is caught red-handed or with objects which indicate a participation in the criminal offence; (ii) danger of flight; (iii) danger of suppressing of evidence; or (iv) danger of commission or recurrence of the same or a similar offence. Whether a suspect may be arrested and put in detention depends on the ground for arrest, and the gravity of the offence. If the suspect is caught red-handed, or if there is danger of flight or of suppressing evidence, the suspect may be arrested for any offence. If however the ground for arrest is danger of committing the same or a similar offence, an arrest is only admissible if the offence of which the person is suspected carries a penalty of more than six months’ imprisonment. If the offence is a crime for which a minimum sentence of 10 years is provided, the arrest must be ordered, unless any of the grounds for arrest can be excluded (obligatory arrest, section 170 para 2 CCP). A general limit is the principle of proportionality: an arrest is not admissible, if it would be disproportionate to the gravity of the case (section 170 para 2 CCP).

Investigation Measures 25 An arrest is not allowed—particularly in juvenile cases—if the same purpose could be achieved by other means (sections 35 Juvenile Court Act (Jugendgerichtsgesetz—JGG; 172 CCP)). (b) Formal Requirements The arrest must be ordered by the Public Prosecution Service, which has to apply for authorisation by a court (single judge). The Public Prosecution Service has to present all the evidence to the court to get this authorisation. Normally, the authorisation must be written, but in practice there are also urgent cases for which the authorisation is given orally and is later made up in a written way. Usually the written authorisation is a short form in which reference is only made to the reasoning of the Public Prosecution Service. In two cases a longer reasoning is necessary: first, if the judge thinks that the Public Prosecutor’s order is to be authorised, but for other reasons than the one used in the order. In this case the authorisation must be given in a specific decision with reasons. Secondly, if the application for authorisation is rejected, a written reasoning is always necessary. The arrest is executed by the criminal police (section 171 para 1 CCP). The criminal police are entitled to arrest the accused without an order from the Public Prosecutor or authorisation by the court, if the suspect is caught red-handed or with objects which indicate a participation in the criminal offence; or if there is a danger of flight, of suppressing evidence, or of commission of the same or a similar offence, if due to imminent danger an order of the Public Prosecution Service cannot be obtained in due time (section 171 para 2 CCP). In this case a written reasoning by the criminal police on the suspicion and the reason for arrest must be served to the accused immediately or at least within 24 hours after the arrest (section 171 para 3 second clause CCP). Whether there is imminent danger must be examined very severely. The Austrian Constitutional Court has stated that it is an infringement of the fundamental right of personal freedom, if there had been the opportunity to first contact the competent state prosecutor by telephone, but this was not done.54 The criminal police hear the accused on the facts, on the suspicion and on the reason for arrest as soon as possible. If there is no ground for further detention, s/he must be set free immediately. Otherwise the accused must be brought to the competent court at the latest within 48 hours. The arrest must be documented in a written protocol. It is not necessary that a defence lawyer be informed of the arrest. (c) Judicial Review The arrested person can appeal (Beschwerde) against the authorisation by the court (section 87 CCP). If the person is arrested due to an order of the Public Prosecution Service without an authorisation by a court, it is possible to make an objection due to a violation of rights (Einspruch wegen Rechtsverletzung). After using all regular remedies, it is possible to make a Grundrechtsbeschwerde (fundamental right appeal) in the event of a violation of the fundamental right of personal liberty. Such an appeal is decided by the Supreme Court.

54 Verfassungsgerichtshof (Constitutional Court) 25 February 1991 VfSlg 12.513; Verfassungsgerichtshof (Constitutional Court) 10 June 1991 VfSlg 12.701, Verfassungsgerichtshof (Constitutional Court) 9 June 1992 VfSlg 13.045.

26 Austria 5. Pre-Trial Custodial Detention (a) Degree of Suspicion and Type/Gravity of Offences Pre-trial custodial detention requires strong suspicion that the accused has committed an offence (dringender Tatverdacht). Strong suspicion is more than simple suspicion, and requires that the accused is most likely the perpetrator.55 It is required that one of the following three grounds for pre-trial custodial detention must exist: (i) danger of flight, (ii) danger of suppressing evidence, or (iii) danger of commission or recurrence of the same or a similar offence. For which category of offences pre-trial custodial detention is admissible depends on the ground for pre-trial custodial detention. Danger of flight must not be supposed, if the accused is suspected of a criminal offence for which the term of imprisonment is less than five years, unless the accused has already prepared her/his flight. Danger of commission or recurrence of the offence may only be taken into consideration if the suspicion refers to a criminal offence for which the term of imprisonment is more than six months (section 173 para 2 fig 3 CCP). Moreover, the detention must not be out of proportion to the gravity of the case or to the penalty expected. If the purpose of the detention could be achieved by less intrusive means, a pre-trial detention is not admissible (section 173 para 1 CCP). Juveniles may only be taken into pre-trial custodial detention, if the disadvantages for the development of the personality, which are connected with the detention, and for the advancement of the juvenile, are not out of proportion to the significance of the offence and the expected penalty (section 35 para 1 JGG). Since 1 September 2010 (inter alia) pre-trial detention can be served as house detention supervised by means of electronic surveillance, which is executed in accommodation situated in Austria. The order for house detention (upon application of the Public Prosecution Service or of the accused) is admissible, if the pre-trial custody detention is not to be finished because of less interfering means and the purpose of detention can also be served by using this way of execution of pre-trial custody (section 173a CCP). (b) Formal Requirements Pre-trial custody detention is imposed by the court (single judge at the regional court) upon application of the Public Prosecution Service. The decision to impose pre-trial custodial detention must be pronounced to the accused immediately and orally. Within 24 hours this decision must be put into written form (section 175 para 3 CCP). During the whole proceeding when and as long as the accused is in pre-trial custody detention the accused must be represented by a defence lawyer (‘necessary defence’; section 61 CCP). (c) Judicial Review The accused can file an appeal (Beschwerde) against the decision of the court (section 87 CCP), which is decided by the Upper Regional Court (Oberlandesgericht). After using all regular remedies it is possible to make a Grundrechtsbeschwerde (fundamental 55 K Kirchbacher, M Rami ‘§ 173’ in H Fuchs, E Ratz (Eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 3.

Investigation Measures 27 right appeal) because of a violation of the fundamental right of personal liberty (section 1 of the Law on the Fundamental Right Appeal—Grundrechtsbeschwerdegesetz). It is decided by the Supreme Court.

6. Interception of Postal Communications (Letters) (a) Degree of Suspicion and Type and Gravity of the Offence A confiscation of letters56 is only admissible, if an accused who is concretely suspected (konkret verdächtigt) to have committed a punishable act is being kept detained for a certain punishable act, or if her/his presentation in court or arrest has been ordered by the court.57 The measure may be applied to punishable acts, committed with intent, for which a custodial sentence of more than one year is provided for. As regards communication between the accused and her/his defence counsel, section 59 para 2 CCP stipulates that such communication must not be monitored, except if the accused is under arrest because of a danger of conspiracy or collusion and if there is the risk, on account of specific aggravating circumstances, that contacts with the defence counsel might lead to an impairment of evidence. (b) Formal Requirements According to section 137 para 1 CCP, a confiscation of letters shall be ordered by the Public Prosecutor based on a court authorisation. (c) Special Restriction Rules A confiscation of letters may only be ordered for such a future period of time that is likely to be required in order to fulfil the purpose.58 Another order is admissible, when it is to be expected that the further performance of an investigative measure will lead to success. The investigative measure shall be determined as soon as its requirements have ceased to apply (see section 137 para 3 CCP). (d) Cooperation with Investigative Authorities Operators of postal and telegraph services have the duty to cooperate in the confiscation of letters and, upon an order by the Public Prosecutor, to retain such mailings until the respective court authorisation has been received. If such authorisation is not given within three days, they must not continue to postpone the delivery (see section 138 para 2 CCP).

56 The term ‘letter’ in this context relates to letters as well as telegrams and other mail (s 134 para 1 CCP). In more abstract terms: letter means every closed physical object as soon as and as long as it is in the mail, see S Reindl-Krauskopf, A Tipold, I Zerbes ‘§ 134’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 1; Seiler (n 19) 138. 57 Reindl-Krauskopf, Tipold, Zerbes (n 56) § 135 marginal no 5. 58 The Explanatory Remarks allow a maximum period of one month (EBRV 25 BlgNR 22 GP, 190). As they are not legally binding, it is up to the Public Prosecutor to determine a period of time that is likely to be required in order to fulfil the purpose.

28 Austria (e) Notification Requirements and Measures to Protect the Interests of Third Parties The accused and the sender or recipient of the respective letter shall be given or sent a confirmation of the confiscation immediately or within 24 hours at the latest (section 137 para 2, section 111 para 4 CCP). In addition, before the letter may be opened, they shall be informed about their right to file an objection or an appeal against the confiscation. If it is not possible to find the accused, the letter may be opened without notifying her/him.59 As regards the protection of third parties, section 139 CCP foresees that (i) persons concerned by the confiscation shall have the right to examine the results of the measure and (ii) if the letter won’t be of significance for the proceedings, or must not be used as evidence, it shall be returned to the intended recipient.60

7. Monitoring of Telecommunication Traffic Data and Interception of the Contents of Telecommunications (Content Data) (a) Degree of Suspicion and Type and Gravity of the Offence Section 135 para 2 CCP stipulates the prerequisites for the monitoring of telecommunication traffic data,61 para 3 those for the surveillance of messages62 (interception of the contents of telecommunications). The provisions for monitoring of telecommunication traffic data require a simple suspicion (einfacher Verdacht) if it is expected that the measure helps to clear up an intentionally committed criminal offence. It has to be distinguished between cases where the owner of the technical equipment who was or will be the source or the target of a message transmission expressly agrees to the monitoring and where not. If there is consent of the owner, a custodial sentence of more than six months must be foreseen for the act. If there is no consent, a criminal offence which is punishable by a custodial sentence of more than one year is required and it has to be expected that due to the execution of the measure data of the accused may be obtained. Moreover monitoring of telecommunication traffic data is admissible, if there is a strong suspicion (dringender Verdacht) that the person concerned by the measure has kidnapped another person, or if it is expected, that due to the execution of the measure the place of residence of an absent or fugitive accused who is strongly suspected to have committed an intentional criminal offence, for which a custodial sentence of more than one year is foreseen may be obtained. Concerning the execution of surveillance of messages, slightly different prerequisites apply. Only if the owner of the technical equipment agrees to the surveillance, a simple suspicion of an intentionally committed offence which is punishable by a custodial sentence of more than six months is sufficient. In all other cases a strong suspicion is required that a punishable act has been committed. Three cases can be distinguished: (i) cases of

59 EBRV 25 BlgNR 22 GP, 190; Reindl-Krauskopf, Tipold, Zerbes (n 56) § 135 marginal no 11; ReindlKrauskopf (n 35) §§ 137, 138 marginal no 7. 60 Reindl-Krauskopf (n 35) § 139 marginal no 18. 61 The monitoring of telecommunication traffic data means the disclosure of traffic data, access data and location data of a telecommunications service or a service of the information society. 62 The surveillance of messages means the investigation of the content of telecommunication that is exchanged or conveyed via a communications network or a service of the information society.

Investigation Measures 29 kidnapping; (ii) cases where the owner or any other person who may contact the equipment is strongly suspected of an intentionally committed criminal offence for which a custodial sentence of more than one year is foreseen, or of an offence within a criminal or terrorist organisation and it is expected that the measure helps to clear up this offence, and (iii) if it is expected that due to the execution of the measure the place of residence of an absent or fugitive accused who is strongly suspected to have committed an intentionally committed criminal offence which is punishable by a custodial sentence of more than one year may be obtained.63 (b) Formal Requirements and Special Restriction Rules The formal requirements and the special restriction rules correspond with those for the interception of postal communications. (c) Cooperation with the Investigative Authorities According to section 138 para 2 CCP, providers are obliged to provide information about data of a message transmission and to cooperate in the surveillance of messages. For the latter, they have to provide their infrastructure and are obliged to cooperate in individual cases to the necessary extent.64 (d) Notification Requirements and Measures to Protect the Interests of Third Parties If the monitoring of traffic data or the surveillance of content data is carried out with the consent of the owner, at least the owner has to be notified of the measure before it is carried out. Otherwise, the criminal police execute the measure in a clandestine way. As both measures are typically carried out in a clandestine way, it is not required that the defence lawyer has to be informed about the place and time of the execution in advance. However, after termination of the measure the Public Prosecutor immediately has to serve the order and the judicial authorisation to the accused and the persons affected by the execution of the measure, although such service may be postponed for as long as the purpose of this or another proceeding would be jeopardised (section 138 para 5 CCP). The accused has the right to see and hear all results. As regards the protection of third parties, section 139 CCP foresees the following provisions. The accused may not inspect all parts of the results of the respective measure, if this is necessary to protect the interests of third parties and the results are not of significance for the proceedings. The persons concerned by the measure shall have the right to examine their results and if the results will not be of significance for the proceedings, or must not be used as evidence, they shall be destroyed. (e) Special Documentation Rules In addition to the documentation in an official memorandum, the Public Prosecutor has to transcribe those parts of the measures, that are important for the proceedings and may 63 64

Reindl-Krauskopf, Tipold, Zerbes (n 56) § 135 marginal no 61. Reindl-Krauskopf (n 35) §§ 137, 138 marginal no 38.

30 Austria be used as evidence, into picture or written form and annexe them to the files (section 138 para 4 CCP).

8. Surveillance in Public and Private Spheres (Acoustic and Visual) (a) Degree of Suspicion and Type and Gravity of the Offence The Austrian CCP sets different prerequisites for the optical and acoustic surveillance of persons in the public and private spheres penetrating the privacy of a person (section 136 CCP)65 and the observation (surveillance in public sphere without penetration of privacy, section 130 CCP).66 An optical and acoustic surveillance of persons is the surveillance of the behaviour and statements of persons by the use of technical means for the transmission of pictures or sound and for picture or sound recording. Section 136 CCP differentiates between (i) optical and acoustic surveillance in the case of kidnapping, (ii) small bugging operations (kleiner Lauschangriff ), (iii) large bugging operations (großer Lauschangriff ) and (iv) visual surveillances (Spähangriff ). In the case of kidnapping the strong suspicion that the person concerned has kidnapped another one is required. Small bugging operations—operations where an undercover agent conducts the surveillance or where at least one of the dialogue partners is informed of the surveillance67—require a general and simple suspicion regarding a crime (Verbrechen) as defined in section 17 CC68 for their execution. Large bugging operations—optical and acoustic surveillances without knowledge of the involved parties—require a person who is strongly suspected to have committed a crime, for which a prison term of more than 10 years is provided for or a crime within the framework of a criminal or terrorist organisation. If the surveillance is only visual and is restricted to processes outside of a dwelling, a simple suspicion that any punishable act has been committed is sufficient. If it is performed in a dwelling, an intentional punishable act, for which a custodial sentence of more than one year is provided for, is necessary. Observation is the clandestine surveillance of a person’s behaviour. It is distinguished between short and systematic observations (section 130 CCP). Prerequisite for a short observation is a simple suspicion that any punishable act has been committed. Systematic observations (observations supported by the use of technical means, continued over a period of more than 48 hours or conducted or supposed to be conducted outside the area of Austria) require an intentional punishable act for which a prison term of more than one year is provided for. (b) Formal Requirements The mentioned surveillances require an order by the Public Prosecution Service based on a court authorisation. Surveillance in the case of kidnapping and short observations may 65 An example where the surveillance in public sphere is subject to the prerequisites of s 136 CCP would be the surveillance of a wardrobe in a swimming pool: Oberlandesgericht (Higher Regional Court) Linz 10 March 2006 9 Bs 60/06x. 66 Reindl-Krauskopf, Tipold, (n 56) § 134 marginal no 111. 67 Reindl-Krauskopf (n 35) § 136 marginal no 9. 68 A crime as defined in the Austrian Criminal Code is a punishable act, committed with intent, for which a custodial sentence of more than three years is provided.

Investigation Measures 31 be executed by the criminal police on their own initiative. The execution of systematic observations requires a previous order by the Public Prosecution Service. In the case of large bugging operations the order and authorisation is controlled by the legal protectionattorney. (c) Special Restriction Rules As regards the protection of the professional privilege, the optical and acoustic surveillance of clerics under the use of technical means in confessionals or rooms, which are designated for clerical discussion, is forbidden in any case—also if the cleric is strongly suspected to have committed the punishable act.69 Furthermore, the optical and acoustic surveillance of persons (section 136 CCP) may only be ordered for such a future period of time that is likely to be required in order to fulfil the purpose.70 Another order is admissible, when it is to be expected that the further performance of an investigative measure will have success. The investigative measure shall be ended as soon as its requirements have ceased to apply (see section 137 para 3 CCP). The Public Prosecutor may order systematic observations for a maximum period of three months. A new order is possible as long as the prerequisites continue to exist and due to ascertained facts, the prosecutor can assume that continuing the observation will be successful. Generally, observations have to be terminated as soon as the prerequisites do no longer exist, if they have gained their end or presumably the purpose can no longer be achieved or if the Public Prosecutor orders the termination (section 133 para 2 CCP). (d) Notification Requirements and Measures to Protect the Interest of Third Parties As the aforementioned measures are typically clandestine measures, it is not required to inform the accused or his/her defence lawyer in advance. After termination of one of these measures, the Public Prosecutor immediately has to submit the relevant documents to the accused and the persons affected by the execution. However, s/he may postpone the information, for as long as the purpose of this or another proceeding would otherwise be jeopardised (see sections 138 para 5 and 133 para 4 CCP). As regards the protection of third parties in cases of surveillances in public and private sphere the accused may not inspect all parts of the results of the respective measures and the persons concerned by the measure shall have the right to examine their results. If the results will not be of significance for the proceedings, or must not be used as evidence, they shall be destroyed. (e) Special Documentation Rules In addition to the documentation of the surveillance in an official memorandum, those parts of the optical and acoustic surveillance, which are of significance for the proceedings 69

Reindl-Krauskopf (n 35) § 136 marginal no 35. The Explanatory Remarks suggest a maximum period of one month (EBRV 25 BlgNR 22 GP, 190). As they are not legally binding, it is up to the Public Prosecutor to determine a period of time that is likely to be required in order to fulfil the purpose. 70

32 Austria and may be used as evidence, must be transcribed into picture or written form and annexed to the files (section 138 para 4 CCP).

9. Data Mining and Profiling (a) Degree of Suspicion and Type and Gravity of the Offence Data mining (Datenabgleich) is admissible, if there is a simple suspicion regarding a crime (section 17 CC) and the clarification of this crime otherwise will be significantly hindered (small data mining operations). Here, only certain data found out in criminal proceedings or for other public purposes may be included. In cases of a simple suspicion of a crime for which a custodial sentence of more than 10 years or of a crime committed in the framework of a criminal or terrorist organisation (large data mining operations) is provided for, it is allowed to include a wider range of governmental data and private data like data of a person saying that this person has obtained certain goods from a special company (section 141 CCP). Section 141 para 4 CCP stipulates that certain sensitive data, like data relating to natural persons concerning their racial or ethnic origin, political opinion, religious beliefs and health or sex life,71 must not be included in any data mining operation. (b) Formal Requirements According to section 142 para 1 CCP, the Public Prosecutor shall order a data mining operation on the basis of a court authorisation. The order and authorisation are examined and controlled by the legal protection-attorney (section 147 para 1 fig 4 CCP). (c) Cooperation with the Investigative Authorities According to section 143 para 1 CCP, each contracting entity (Auftraggeber) of a data application, whose data shall be included in a data mining process, is obliged to search the data application for the relevant criteria and to communicate all data, which contain those criteria. (d) Notification Requirements and Special Body in Charge of Controlling the Measure The order, together with the court authorisation, shall be sent to the Data Protection Commission and to all persons who have been identified in the course of the data mining operation. However, service on the identified persons may be postponed for as long as it might jeopardise the purpose of the current or other pending criminal proceedings (section 142 para 3 CCP). According to section 142 para 4 CCP, the Data Protection Commission has the right to file an appeal pursuant to section 87 CCP against the court authorisation.

71 Data in the sense of s 4 para 2 Datenschutzgesetz 2000 (Federal Act concerning the Protection of Personal Data).

Investigation Measures 33 (e) Special Documentation Rules The Public Prosecutor or the criminal police shall transcribe the result of the data-matching operation into written form, to the extent that is of significance for the proceedings (section 142 para 1 CCP).

10. On-line Search of Computers For the digital access to computers in order to search for saved data, and for the continuously digital monitoring of the use of a computer, applicable rules in Austria are still missing.72 The monitoring of data exchange via the Internet73 is covered by the regulations on monitoring of telecommunication.74 However, the Regional Court for Criminal Matters Vienna regarded it as admissible for the purposes of evidence that the police clandestinely installed a special software on a computer of a suspect, which did screenshots every 60 seconds and subsequently transferred these pictures to the police and that the police transferred and monitored key logdata, so that they got a picture of nearly all computer activities of the suspect.75 The court applied the rules on the surveillance of the content of telecommunication and on optical and acoustic surveillance to these investigative measures. This action by the police and the fact that the court regarded it as admissible was criticised by parts of the doctrine.76

11. Infiltration (Undercover Investigations) and Fictitious Purchases (a) Degree of Suspicion and Type and Gravity of the Offence The application of undercover investigations (section 131 CCP) and fictitious purchases (Scheingeschäfte, section 132 CCP) require a simple suspicion that a punishable act has been committed. As regards the type and gravity of the offence, it is necessary to differentiate between a simple and a systematic undercover investigation. Simple (short-term) undercover investigations may be applied to every type of offence.77 Systematic undercover investigations78 are admitted, if the clarification of an intentional criminal act punishable by a custodial sentence exceeding one year or the prevention of a criminal act planned within the framework of a criminal or terrorist association or a criminal organisation will

72 C Pilnacek, A Pscheidl, ‘Das Strafverfahren und seine Grundsätze (Teil I)—Alte Hüte im neuen Gewand oder Fundgrube für die Auslegung?’ [2008] 63 Österreichische Juristen-Zeitung 629, 633; A Venier, ‘Die OnlineDurchsuchung. Oder: Die Freiheit der Gedanken’ [2009] 71 Anwaltsblatt 480. 73 This category for example includes e-mail communication, Internet chat or voice-over IP. 74 Pilnacek, Pscheidl (n 72) 632. 75 Landesgericht für Strafsachen Wien (Regional Court for Criminal Matters Vienna), 12 March 2008 443 Hv 1/08h; the Austrian Supreme Court did not express itself on this issue (Oberster Gerichtshof, 27 August 2008 13 Os 83/08t). 76 Venier (n 72) 480ff. 77 Bertel, Venier (n 30) marginal no 326; A Lehner, ‘Grundlagen der verdeckten Ermittlung’ [2008–2009] 19 Juristische Ausbildung und Praxisvorbereitung 68, 71. 78 Systematic undercover investigations are investigations taking place in a criminal environment and going on for a longer period.

34 Austria otherwise be significantly hindered. According to section 132 CCP, a fictitious purchase requires either the clarification of a crime pursuant to section 17 para 1 CC or certain proprietary orders (vermögensrechtliche Anordnungen). (b) Formal Requirements The criminal police may execute simple undercover investigations and fictitious purchases, of which the purpose is to seize illicit drugs or counterfeit money, at their own discretion (section 133 para 1 CCP). Systematic undercover investigations and all other fictitious purchases require an order by the Public Prosecution Service and the control by the legal protection-attorney. (c) Special Execution Rules Section 129 fig 2 CCP specifies that the criminal police may employ private persons who enjoy their confidence (Vertrauenspersonen) in order to execute an undercover investigation. As in practice fictitious purchases are frequently concluded in the course of an undercover investigation, also such purchases may not only be concluded by police officers, but also by private persons who enjoy the confidence of the criminal police.79 (d) Special Restriction Rules Under Austrian law the deployment of an agent provocateur is forbidden (section 5 para 3 CCP). Accordingly, it is illegal to incite an accused or other persons to commit a punishable act or to tempt them to make a confession through clandestinely appointed persons. In contrast to an agent provocateur, the fictitious purchaser, as laid down in section 132 CCP, only creates the impression towards a person who at least has already decided to commit a punishable act that s/he is a potential purchaser.80 As regards time limits of undercover investigations, please refer to the special restriction rules on systematic observations.81 (e) Notification Requirements and Measures to Protect the Interest of Third Parties For notification requirements please refer to the respective remarks on systematic observations (section 133 para 4 CCP).82 Concerning the interest of third parties, undercover agents may only enter domiciles with the permission of the owner. Thereby they must not obtain such permission by faking an access authorisation (section 131 para 4 CCP). (f) Criminal Offences by Cover Agents Criminal police officers and private persons must not commit a criminal offence within the framework of an undercover investigation.83 Fictitious purchasers do not commit a criminal offence, as they do not have the requisite intent.84 79 80 81 82 83 84

F Eigner, W Dillinger, ‘Observation, VE und Scheingeschäft’ [2007] 9–10 Öffentliche Sicherheit 153, 156. EBRV 25 BlgNR 22 GP, 180. See section B8(c). See section B8(d). EBRV 25 BlgNR 22 GP, 181; Lehner (n 77) 70f. EBRV 25 BlgNR 22 GP, 183.

Investigation Measures 35 12. Monitoring of Bank Transactions (a) Degree of Suspicion and Type and Gravity of the Offence The Austrian CCP differentiates between information on bank accounts and information on bank transactions. Information on bank transactions means the inspection of documents and other records of a credit or financial institute regarding the type and scope of a business relationship and the business transactions and other business incidents connected to this relationship during a certain period in the past or in the future (section 109 fig 3 lit b CCP). In order to carry out information on bank transactions a relation to any intentional punishable act or to another punishable act falling into the competence of the regional court (Landesgericht)85 is needed. In addition, section 116 para 2 CCP requires a simple suspicion that (i) due to this information certain documents about a business relationship may be confiscated and that this confiscation is necessary for the investigation of an offence, (ii) objects or other assets may be confiscated according to proprietary orders (vermögensrechtliche Anordnungen) provided by law or (iii) a transaction connected to a punishable act will be processed over the business relationship concerned.86 In practice, information on bank transactions is often ordered together with a search according to section 117 fig 2 lit b CCP of the respective credit or financial institute for the case that the bank institute does not follow the order of the measure.87 (b) Formal Requirements The Public Prosecutor shall, based on a court authorisation, order information on bank transactions. As already mentioned above, the court has to set a time limit for the execution of the measure in its authorisation. For the execution of information on bank transactions, the court in practice often sets a time limit of about several months, as the criminal police should also have time to inform the institute about the measure before executing it.88 (c) Cooperation with Investigative Authorities Credit and financial organisations and their staff are obliged to provide the information, to facilitate the examination of documents and records, as well as to release them. The organisation may appeal against the court authorisation and declare not to provide the information or hand over the records. In this case, the institute shall hand over the information and records to the investigative authorities in a closed box. The criminal police then shall submit the box to the Higher Regional Court, which then decides about the seizure of the documents.89

85 Punishable acts falling into the competence of a regional court are acts for which custodial sentences of more than one year are provided. 86 Seiler (n 19) 129. 87 M Flora, ‘§ 116’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 111. 88 Ibid 116 marginal no 106. 89 E Fabrizy, Kommentar zur StP O, 11th edn (Vienna, Manz Verlag, 2011) § 116 marginal no 9.

36 Austria (d) Notification Measures and Measures to Protect the Interest of Third Parties As soon as the concerned financial institute, the accused and the persons holding disposing powers under the business relationship in question are known to the Public Prosecutor, the order, together with the court authorisation, shall be served on them (section 116 para 5 CCP). The Public Prosecutor may postpone this service for as long as it would jeopardise the purpose of the proceedings. In practice, the criminal police often do not note the credit or financial institute prior to their arrival. This method mostly causes problems for the institute, as it cannot verify the court authorisation immediately and often lacks the possibility to provide an employee for the search of the relevant documents.90 If the accused becomes known to the Public Prosecutor before executing the measure and the accused has granted a defence counsel powers of attorney, the order, together with the court authorisation, shall be sent to the defence counsel (section 83 para 4 CCP).91 However, if this service was postponed, the foregoing does not apply.

13. Freezing, Search and Seizure (a) Degree of Suspicion and Type and Gravity of the Offence The Austrian CCP differentiates between seizure (Sicherstellung) of objects or other property items and confiscation (Beschlagnahme). Whereas the seizure (section 109 fig 1 CCP) is only an interim measure, the confiscation (section 109 fig 2 CCP) continues a seizure or bans the right to sell, encumber or pledge real-estate property or rights recorded in a public register. Furthermore, the Austrian CCP foresees provisions for the search of premises and objects, the search of persons (sections 119 et seq CCP) and physical examinations (Körperliche Untersuchung, section 123 CCP). The difference between searches of persons and physical examinations is that physical examinations intervene in the physical integrity of a person whereas the searches of persons do not. Seizures, confiscations, searches of persons as well as physical examinations require a simple suspicion that a punishable act has been committed (see sections 110 para 1, 113 para 1, 119 para 2 and 123 para 1 CCP). For the search of premises and objects, section 119 para 1 CCP requires a simple suspicion that a person who is suspected to have committed a punishable act is hiding in the respective premises or object, or that objects or traces which have to be seized or processed are there. Generally, all measures may be applied to all punishable acts. However, there are two exceptions: The taking of blood or a comparable minor intervention without the consent of the person concerned (section 123 para 4 CCP) requires either (i) the suspicion of the offence of intentional endangerment of people by a communicable disease (section 178 CC), (ii) the suspicion of an offence against life and limb which was carried out through dangerous activities under the influence of alcohol or other drugs, or (iii) that the clearing up of an offence which is punishable by a custodial sentence of more than five years or punishable acts against the sexual integrity and self-determination for their execution

90 91

Flora (n 87) § 116 marginal no 108. Seiler (n 19) 94.

Investigation Measures 37 can be expected. If there is the consent of the person concerned, there are no (additional) requirements for physical interventions with a risk of damage to health of at most three days. Serial examinations (section 123 para 2 CCP, Reihenuntersuchungen92) are admissible if otherwise the clearing up of an offence which is punishable by a custodial sentence of more than five years or punishable acts against the sexual integrity and self-determination would be significantly hindered. (b) Formal Requirements Section 110 para 2 CCP stipulates that a seizure shall be ordered by the Public Prosecution Service. In some cases (see section 110 para 3 CCP), for example if the possession of the object is generally prohibited, or if the objects were found on the site of the offence and might have been used to commit the offence, the criminal police may act at their own discretion. Upon application by the Public Prosecutor or a person concerned by the seizure, the court shall decide immediately on a confiscation. The search of a flat as well as of the objects located therein, the inspection of a body of an undressed person and basically every physical examination have to be ordered by the Public Prosecution Service on the basis of a court authorisation (sections 120 para 1, 123 para 3 CCP). The search of a generally not accessible piece of land, room, vehicle or container, the search of clothes worn by a person and the objects that the person carries with her/him and smears from the oral cavity, may be executed by the criminal police at their own discretion (section 120 para 2 CCP). In cases of imminent danger, searches of premises, objects and persons, which have to be ordered by the Public Prosecution Service on the basis of a court authorisation, may be executed by the criminal police at their own discretion. Section 120 para 1 CCP explicitly foresees this possibility. If there is imminent danger in cases of physical examinations, a court authorisation is not necessary for the time being (section 123 para 3 CCP). (c) Special Execution Rules A search of victims always must be conducted by a person of the same sex or a physician, respecting the dignity of the person searched (section 121 para 3 CCP). Physical examinations must always be conducted by physicians, with one exception: smears from the oral cavity may be taken also by other persons who have been particularly trained for that purpose (section 123 para 5 CCP). (d) Special Restriction Rules As far as time limits are concerned, the criminal police shall report immediately to the Public Prosecutor, at the latest within 14 days, about every seizure. In the following, the Public Prosecutor immediately shall apply for confiscation to the court (section 113 paras 2 and 3 CCP). If and as soon as the requirements for a confiscation do not or no longer exist, the Public Prosecutor—or the court, once the indictment has been laid down against 92 Serial examinations may be performed not only on one, but also on several persons who belong to a group of people. This group of people has itself to distinguish by means of certain characteristics and it has to be assumed that the offender belongs to this group.

38 Austria the accused—shall repeal the confiscation (section 115 para 6 CCP). Concerning physical examinations, all surgeries and such non-operative physical interventions that could cause a risk of damage to health (Gesundheitsschädigung) of more than three days are in any case (even with consent of the person concerned) inadmissible (section 123 para 4 CCP). (e) Cooperation with Investigative Authorities Every person who has in his/her disposing power objects or property items that are to be seized is obliged to release them, when so requested by the criminal police, or to facilitate the seizure in any other way. As far as physical examinations are concerned, the accused is not obliged to participate actively in the medical examination.93 (f) Notification Requirements and Measures to Protect the Interest of Third Parties A confirmation of the seizure or of the search and its results shall be issued or sent to the persons concerned by a seizure or a search of premises, objects and persons immediately or within 24 hours at the latest. In the case of a seizure, the person affected shall be informed about her/his right to file certain judicial remedies. In addition, bearer of the professional privilege may contradict the seizure and declare not to provide written documents and data media. In this case, the documents shall be handed over to the respective regional court in a closed box. The court then decides about the seizure of the documents (section 112 CCP). Before the search of premises and objects the person concerned must be called upon (by giving her/him the reasons for the search) to admit the search or to bring out the searched things voluntarily. In the case of search of premises and objects the person concerned has the right to be present at the search. If the owner of the premises is not present, another adult co-user of the premises may exercise her/his rights. If this is not possible, two uninvolved trustworthy persons shall be called in to attend the search (section 121 para 2 CCP). This requirement may only be waived in case of an imminent danger. As regards night searches, there is no provision in the Austrian CCP saying that such a search is inadmissible.94 However, under reference to the principle of proportionality, the criminal police probably will decide—in most cases—to conduct a search during the day (mostly early in the morning) than at night. Moreover, persons concerned in a search of premises or objects, and persons whose undressed bodies are inspected, have the right to call in a person of her/his confidence for such a search. Thus, the respective person may inform her/his defence lawyer about the place and time of the execution of the measure. The seizure of objects for reasons of evidence shall not be admissible whenever recordings or copies can satisfy the purpose of evidence. Furthermore, persons who themselves are not accused of the offence shall, upon their application, be reimbursed the reasonable and locally customary costs that they have incurred in the course of a seizure by the handing over of documents, other objects or copies. If the grounds for a further safekeeping of the seized or confiscated objects no longer prevail, the objects shall be returned to the entitled person, if such a person can be identified or ascertained without unreasonable effort. As regards the search of persons, victims must not be forced in any event to be searched against his/her will. 93

Seiler (n 19) 134. A Tipold, I Zerbes, ‘§ 121’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 14. 94

Investigation Measures 39 (g) Special Conditions for Financial Investigations Sections 206 and 207 of the Act on Fiscal Offences stipulate specific rules for the seizure and confiscation of objects in danger of forfeiture (verfallsbedrohte Gegenstände). Section 206 allows a deposit of an amount of money instead of seizing or confiscating the objects and section 207 provides that objects in danger of forfeiture, which are amongst others threatened with a rapid depreciation in value, the court may realise. (h) Special Conditions for Legal Persons If a legal entity is strongly suspected of having committed a certain offence and it is presumable that a fine will be imposed on the legal entity, the court may order a confiscation according to section 115 CCP in order to secure the fine (section 20 VbVG), if there is the risk that otherwise the enforcement would be significantly hindered.

14. Tracking and Tracing of Objects and Persons (a) Degree of Suspicion and Type and Gravity of the Offence The law distinguishes between the tracking and tracing of persons (Personenfahndung, section 168 para 1 and 2 CCP) and the tracking and tracing of objects (Sachenfahndung, section 168 para 3 CCP). Furthermore, the tracking and tracing of persons is divided into two sub-categories, namely the tracking and tracing of persons for the purpose of determining the place of residence of a person (Fahndung zur Aufenthaltsermittlung) and the tracking and tracing of persons for the purpose of arresting a person (Fahndung zur Festnahme). The police may direct the tracking and tracing of persons for determining the place of residence of a person directly at the accused or a person whose identity has to be detected or who shall be interrogated as a witness. Therefore, a simple suspicion that any punishable act has been committed is sufficient.95 If the aim of tracking and tracing a person is to arrest this person, the measure may only be directed at an accused, who is concretely suspected of having committed any punishable act. If a tracking and tracing of persons shall be made public, the accused has to be strongly suspected of having committed an intentional punishable act, for which custodial sentences of more than one year are provided for. If the criminal police want to publish pictures of persons, even more stringent prerequisites apply (section 169 para 1, 1a CCP). For the tracking and tracing of objects, a simple suspicion that any punishable act has been committed and that an object, which shall be seized, cannot be found is required. (b) Formal Requirements According to section 169 para 1 CCP, the tracking and tracing of persons has to be ordered by the Public Prosecutor. Tracking and tracing of objects the criminal police may execute themselves without any order (section 169 para 2 CCP).

95

Vogl (n 40) §§ 167–169 marginal no 15.

40 Austria 15. Access to Relevant Premises (‘Crime Scene’) (a) Degree of Suspicion and Type and Gravity of the Offence Section 149 para 1 fig 1 and para 2 CCP regulates the so-called inspection (Augenschein). One form, which is in practice the most common,96 is the inspection of a crime scene. A simple suspicion that any punishable act has been committed is necessary for the executing officer to apply this measure. (b) Formal Requirements The criminal police may execute this measure on their own initiative. (c) Notification Requirements The criminal police, the Public Prosecution Service and experts usually inspect the crime scene without the presence of the persons concerned by the investigative proceedings. The law does not foresee a right of these persons to be called in an inspection. The defence lawyer neither will be informed about the place and time of the measure nor it is required that s/he is involved in its execution. However, it is not excluded to call the persons concerned in an inspection; in some cases it might be advisable to do so.97 (d) Special Documentation Rules Although an inspection clearly represents a gathering of evidence, section 149 para 2 CCP explicitly foresees that this measure has to be documented in an official memorandum. In addition, an inspection has to be documented by audio or picture recordings, as per the definition in section 149 para 1 fig 1 CCP an inspection is every direct sensorial perception and its documentation through audio or picture recording.98

16. Production Orders (in Particular for Banks, Public Authorities) There is not one specific provision for production orders, but production orders are regulated for each field separately. Moreover the general rules on seizure (Sicherstellung; section 110 CCP) are applicable for some cases. For instance, telephone numbers have two different functions: on the one hand a telephone number can be personal data of a client of the telephone company, on the other hand it can be data on telecommunication traffic. As long as the telephone number is (only) part of personal data, which can be obtained by looking into the customer list and does not concern the telecommunication traffic, the provisions

96 H Hinterhofer, ‘§§ 149, 150’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 10; Seiler (n 19) 125. 97 Hinterhofer (n 96) §§ 149, 150 marginal no 6, 35f. 98 Fabrizy (n 89) § 149 marginal no 2; ibid §§ 149, 150 marginal no 56.

Investigation Measures 41 on seizure are applicable. But as soon as they concern telecommunication traffic, the special provisions on surveillance of telecommunication must be applied.99 In the following two examples production orders are briefly described. Concerning service providers, the Austrian legislation only differentiates between information on data of telecommunication traffic and the surveillance of contents of telecommunication, but does not differentiate between monitoring of telecommunication traffic and production orders for data of service providers. Therefore the provisions on monitoring telecommunication traffic are also applicable to get data from service providers.100 (a) Banks There are special provisions on the information on bank accounts and banking transactions (section 116 CCP). If the information on bank accounts involves only the disclosure of the name and other data concerning the identity of the proprietor of a business relationship as well as his address, the information is admissible, if it appears to be necessary to clear up a punishable act (section 109 para 3 lit a, first clause and section 116 para 1 CCP). Therefore, a well-founded suspicion (begründeter Tatverdacht) is needed that a punishable act falling under the jurisdiction of a regional court (offences for which a custodial sentence of more than one year is provided for101) has been committed.102 As production orders concerning bank accounts are coercive measures, it requires an order by the Public Prosecution Service which must be authorised by the court (section 105 CCP). The order and the authorisation are not only to be delivered to the bank and the accused, but also to the persons holding disposing powers under the business relationship (section 116 para 5 CCP). The delivery can be suspended, if otherwise the purpose of the investigation would be endangered. Credit or financial institutes and their staff members are obliged to provide the information, to facilitate the examination of documents and records, as well as to release them (see section 116 para 6 CCP).103 (b) Public Authorities Criminal police, Public Prosecution Services and courts are authorised to make use of the support of all public authorities and public departments and all other public corporations during criminal investigations. Public authorities and departments are obliged to fulfil the requests as soon as possible. Requests concerning criminal acts of a certain person, may only be refused with reference to a duty of secrecy or to the fact that these are automatically processed data, if either this duty explicitly also applies in relation to criminal courts or if overweighing public interests, which must be mentioned and reasoned in detail, are opposed to the reply (section 76 para 2 CCP).

99

See Reindl-Krauskopf (n 35) § 134 marginal no 38. See section B7. 101 There are several exceptions where a regional court has also jurisdiction over offences which are punishable by a custodial sentence of less than one year, therefore see s 30 para 1 CCP. 102 Flora (n 87) § 116 marginal no 32, 33. 103 For more details see Flora (n 87) § 116 marginal no 112. 100

42 Austria The duty of public authorities to support criminal police, Public Prosecution Services and courts in their work does not depend on a degree of suspicion. But if information for which the duty to secrecy must be broken or automatically processed data is concerned, the request must relate to criminal offences of a specific person. Therefore in these cases a concrete suspicion is necessary. If this is necessary, public authorities must give access to files. Whether this is necessary, the requesting authority has to decide. The requested authority or department has no right to examine the necessity.104

17. Invoking the Assistance of Experts to Examine Clues etc. Experts must be appointed in investigations by the Public Prosecution Service (if the court leads the investigation, by the court), when for investigations or taking of evidence specific expert knowledge is necessary, which the criminal prosecution authorities do not have. This is possible for all types of offences and independently from the degree of suspicion. In principle persons should be appointed as experts who are registered in a list of court experts under oath (section 126 para 2 CCP). If other persons are appointed as experts, they must be informed as to their essential rights and duties. For the selection of experts the principles of economy, efficiency and utility must be respected. The accused must be informed about the appointment of an expert. S/he has the right to raise well-founded objections within an appropriate period of not more than one week. Then it is up to the Public Prosecutor or the court to decide, whether another expert is appointed. The accused must also be informed about this right.

18. Controlled Deliveries There is no regulation on controlled deliveries in the Austrian CCP. Controlled deliveries are ruled in the Federal Act on the judicial cooperation in criminal matters with the Member States of the European Union (Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union—EU-JZG)105 which rules the judicial cooperation in criminal matters with Member States of the EU, in particular the instruments of mutual recognition.106 Controlled delivery is defined as transport of illegal goods or goods under traffic restriction where the Public Prosecution Service is not obliged to prosecute ex officio (section 71 EU-JZG).107 A controlled delivery through Austria may only be approved, if the acts, which are the basis for the controlled delivery or the foreign criminal proceeding, comply with the

104 F Lendl, ‘§ 76’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 12. 105 Bundesgesetzblatt I 2004 No 36. 106 Before the regulation in the EU-JZG there has been only a rudimentary rule in the Federal Act on the organisation of security administration and the execution of security police (Sicherheitspolizeigesetz: Act on Security Police). It provides that security authorities can refrain from preventing or terminating dangerous attacks, if there is an overweighing interest to hold off criminal links or to prevent crimes against life, health, morality, freedom or property planned by a certain person (s 23 para 1 Sicherheitspolizeigesetz). 107 K Kirchbacher, H V Schroll, ‘Zur Rechtsprechung des OGH betreffend SMG und die Einbringung der Ergebnisse verdeckter Ermittlungen in die Hauptverhandlung (Teil III)’ [2005] 83 Richterzeitung 170.

Prosecution Measures 43 requirements to issue a European arrest warrant (EAW) and that the clarification of such criminal offences or the discovery of a person who has been essentially participating in the commission of criminal offences is supported (section 72 para 2 EU-JZG). It must be forbidden, if (i) it could create a serious danger for life, health, physical integrity or freedom of a person due to the specific sort of the goods or the group of perpetrators; (ii) the execution of an EAW against an Austrian citizen would not be admissible, since the person concerned has not committed any act in the territory of the issuing Member State, and since according to Austrian law acts of the same kind committed beyond Austrian territory would not fall into the jurisdiction of Austrian criminal law (section 5 para 3 EU-JZG); or (iii) the further observation of the transport and the seizure in the other state does not seem to be guaranteed (section 72 para 3 EU-JZG). Another Member State has to apply for a controlled delivery (section 72 para 2 EU-JZG). The controlled delivery through or out of the Austrian territory must be overtaken and conducted by Austrian authorities (section 72 para 4 EU-JZG). In most cases this will be the police. The Public Prosecution Service, in which district the frontier probably will be crossed or from where the controlled delivery will start, is competent for the decision about a controlled delivery. If there are no indications for the place of the planned border crossing, the Public Prosecution Service Vienna is competent. C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution (a) Information of the Prosecuting Authorities About the Facts Everybody who learns about the commission of a criminal offence is entitled to report it to the criminal police or to the Public Prosecution Service (section 80 para 1 CCP). The local jurisdiction is not relevant for the information of the Police or Public Prosecution Service. The report can occur orally at the Police (or Public Prosecution Service) or in a written form. The knowledge may be based on own observations and perceptions, but also on information by third persons. There is no duty to verify the information before informing the prosecution authorities.108 Only if the person explicitly knows that the information is wrong, it is prohibited to give information to the authorities, since this would be punishable under the Criminal Code (section 297 CC—Verleumdung/defamation). Restrictions of the right to inform prosecution authorities exist for members of certain professional groups due to the special confidential relationship with a concerned person, eg for magistrates, advocates, notaries, psychologists, psychotherapists, doctors and members of other medical professions, employees of bank and credit institutions. These restrictions are not regulated in the CCP, but in specific professional rules. If a public authority or public department learns about the suspicion of a criminal offence, which is related to its scope of action, the authority or department is obliged to report it to the criminal police or to the Public Prosecution Service. A duty to report does not exist, (i) if the report would have negative effects on the official work which requires a 108 K Schwaighofer, ‘§ 80’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 6.

44 Austria personal mutual trust, or (ii) if and as long as there are sufficient grounds for the assumption that the punishability of the act will be omitted due to a compensation of the damage (section 78 para 2 CCP). (b) Relationship Between Public Prosecution Service and Criminal Police Public Prosecution Service and criminal police are both competent for the prosecution of all criminal offences they learn about (section 2 para 1 CCP). In principle it is a monopoly of these two institutions to prosecute criminal offences. They have the duty to prosecute all criminal offences ex officio, if they know about (ex officio principle). In fiscal penal affairs the task of the criminal police is overtaken by the Finanzstrafbehörde. In principle the Austrian CCP provides that the prosecutor is seized of the case as soon as the investigation starts because of a suspicion of a criminal offence. From the beginning of the investigations the Public Prosecution Service conducts the investigation proceeding and can give orders to the criminal police (section 101 CCP). The criminal police have to record their investigations in a file (section 100 para 1 CCP). They must report to the Public Prosecution Service in writing or by automatic data processing, if and as soon as (i) they have knowledge on the suspicion of a grave crime or another offence of special public interest (Anfallsbericht); (ii) an order or authorisation by the Public Prosecution Service or a decision of the court is necessary or useful or the Public Prosecution Service demands a report (Anlassbericht); (iii) in a proceeding against a certain person three months have passed since the first investigations against this person, without having reported to the Public Prosecution Service, or if since the last report three months have passed (interim report); (iv) the facts of the case and the suspicion seem to be clarified up to an extent that the Public Prosecution Service can make a decision, whether an indictment is filed, diversionary measures are applied, the case is dropped or the proceeding is interrupted (final report) (section 100 para 2 CCP). In practice often—particularly in small cases—the police investigate until they think that enough evidence has been collected.109 Then they give a report to the Public Prosecution Service which decides whether further investigations are needed. Only if coercive measures are necessary, immediate information is obligatory, since most measures must be ordered by the Public Prosecution Office. Therefore in average cases the control of the investigation by the Public Prosecution Service is a very punctual control of police activities in investigations.110 Not all criminal offences are to be prosecuted ex officio; there are offences, which may be prosecuted by the victim of the criminal offence only (Privatanklagedelikte/private prosecution offences). If in these cases the victim wishes that the offender is punished, s/he has to prosecute her/him on her/his own, the state prosecutor is not allowed to prosecute. This concerns offences which do not touch public interests, eg defamation of character or violation of the secrecy of letters.111

109 See Birklbauer and others, ‘Die Rechtspraxis des Ermittlungsverfahrens nach der Strafprozessreform’ [2011] 66 Österreichische Juristen-Zeitung 852, 854. 110 See Bertel, Venier (n 30) marginal no 190. 111 Seiler (n 19) 27.

Prosecution Measures 45 2. Unilateral Disposal of the Case (Including Remedy against it) The Public Prosecution Office has to abandon prosecution and to terminate the investigation, either (i) if the act, which is basis for the investigation, is not a punishable offence, or (ii) the prosecution of the accused is not admissible due to legal grounds, or (iii) that due to the facts there is no reason for a further prosecution of the accused (Einstellung, section 190 CCP). This is the case, if results of the investigation make a conviction not more likely than an acquittal. In these cases further investigation measures against the accused (eg by the criminal police) are not allowed. Moreover the Austrian CCP provides for the withdrawal of prosecution due to pettiness of criminal offences for which only a fine or imprisonment up to three years is provided. For the withdrawal it is required that (i) when weighing the guilt, the consequences of the offence and the conduct of the accused after the offence as well as additional circumstances which would have an impact on assessing the punishment, the nuisance of the offence would have to be regarded as small and (ii) that a punishment or a diversionary measure does not appear to be necessary due to specific and general deterrence (section 191 para 1 CCP). If the preconditions exist, the Public Prosecutor is obliged to discontinue the proceeding. As mentioned above, there is the possibility to drop the case, if the accused is charged with several criminal offences (section 192 CCP).112 The Public Prosecution Service has to break off the investigation, if the accused is at large, his domicile is unknown or if the perpetrator is unknown (section 197 CCP). In these cases investigations must only be conducted as this is necessary to secure evidence. If there are no indications for further investigations, the proceeding has to be broken off due to factual impossibility. In principle, there are no remedies against the decision to drop the case. Only the victim has the right to apply for the continuation of the proceeding (section 195 CCP).113

3. Multilateral Disposal of the Case The Austrian CCP provides for four measures of diversion: the payment of an amount of money (Zahlung eines Geldbetrages), the performance of community services, the determination of a period of probation of one to two years which can be combined with supervision of the probationer and/or with the fulfilment of so-called obligations (Pflichten) and settlement of the conflict, meaning victim-offender-mediation (Tatausgleich). The Public Prosecution Service or the court has to apply diversionary measures, if the facts of the case are sufficiently clarified,114 the criminal offence, which is to be prosecuted by the Public Prosecution Service ex officio (Offizialdelikt), is not a petty offence and the following preconditions are fulfilled: —

112

The offence must fall within the jurisdiction of the district court (Bezirksgericht) or of the single judge at the regional court (Landesgericht); in principle this means that

For more details see section A4. For more details see section C4. 114 According to Austrian legislation diversionary measures are not adequate to shorten proceedings in cases where additional investigations are necessary. 113

46 Austria the offence is to be sanctioned with not more than five years of imprisonment. In juvenile cases there is no limitation of offences and in principle all offences are open for diversionary measures (section 7 JGG). — The offence must not have caused the death of a person.115 — The guilt of the suspect must not be severe. — The imposition of traditional criminal sanctions is not necessary in terms of specific or general deterrence. The suspect must voluntarily accept the diversionary offer, even in the least intensive offers of probation.116 The formal criminal proceeding is to be continued, if either the accused refuses to accept the offer, if s/he does not fulfil the diversionary obligations in time, or if s/he requests the continuation of proceedings. This pre-emptive termination avoids a conviction and preserves the presumption of innocence. Therefore, there is no registration in the criminal records.117 Until the final abandonment of the proceeding the accused can always demand the continuation of the criminal proceeding (section 205 para 1 CCP). In all cases of diversionary measures the interests of a victim must be examined and must be advanced as much as possible (section 206 CCP). The termination of the proceeding by diversionary measures must be made dependent from the compensation for the damage caused by the criminal offence, ‘as far as it cannot be abstained from that requirement due to special grounds’ (sections 200 para 3, 201 para 3 and 203 para 2 CCP). The Tatausgleich is the only diversionary measure which gives the victim the opportunity to influence, whether the trial is terminated without a formal criminal proceeding. The proceeding may only be terminated, if the victim gives her/his consent. Only in the case that the victim does not give the consent due to reasons which are not worth to be taken into consideration within criminal proceedings, it is allowed to terminate the proceeding in spite of her/his refusal. Such reasons could be retribution or revenge118 or clearly excessive claims for compensation.119 Legitimate interests always must be respected (section 204 para 2 CCP). In juvenile cases a Tatausgleich does not require the consent of the victim (section 8 JGG). As long as the Public Prosecution Service has not brought in an indictment, diversionary measures are applied by the Public Prosecution Service without any authorisation. After indictment the court can apply diversionary measures. Before a judge applies a diversionary measure, s/he has to hear the Public Prosecution Service (section 209 para 2 CCP). But even if the Public Prosecution Service rejects, the court can terminate the proceeding. 115 In juvenile cases an exception is provided for, if a relative has been killed by negligence, and with a view to the grave psychological burden of the accused a punishment does not seem to be necessary. 116 See F Höpfel, ‘Das Freiwilligkeitselement bei der Diversion’ in R Moos (ed), Festschrift für Udo Jesionek (Vienna, Neuer Wissenschaftlicher Verlag, 2002) 329. 117 M Burgstaller, ‘Aktuelle Wandlungen im Grundverständnis des Strafrechts’ [1996] 6 JBl 362, 363; F Höpfel, ‘Wurzeln und Spezifika des Außergerichtlichen Tatausgleichs im österreichischen Strafrecht’’ in P Mayr (ed), Öffentliche Einrichtungen zur außergerichtlichen Vermittlung von Streitigkeiten (Vienna, Manz, 1999) 133; M Löschnig-Gspandl, ‘Diversion in Austria: Legal Aspects’’ [2001] 9 European Journal of Crime, Criminal Law and Criminal Justice 281. 118 M Löschnig-Gspandl, ‘Der außergerichtliche Tatausgleich im allgemeinen Strafrecht: Voraussetzungen und Anwendungsmöglichkeiten’ in R Miklau, H V Schroll (eds), Diversion—ein anderer Umgang mit Straftaten, 1st edn (Vienna, Verlag Österreich, 1999) 85, 92. 119 See H Fuchs, ‘Diversion und Tatopfer’ in R Miklau, H V Schroll (eds), Diversion—ein anderer Umgang mit Straftaten, 1st edn (Vienna, Verlag Österreich, 1999) 39, 44.

Prosecution Measures 47 The Act on the Responsibility of Entities for Criminal Offences contains specific diversionary provisions for legal entities. It provides for the same preconditions as the CCP with the exception that the severe guilt of the suspect is not a criterion (section 19 VbVG). As diversionary measures are foreseen: the payment of an amount of money (Zahlung eines Geldbetrages), the determination of a period of probation of up to three years as far as possible and useful combined with the execution of certain measures (compensation of damages, technical, organisational or personal measures), and the explicit declaration of the entity to render community services within a period of six months at the most. The accused has no remedy against diversion. S/he can only reject the diversion offer. If s/he does not, s/he has to accept the decision of the Public Prosecution Service or of the court. The accused can only appeal against the rejection of a diversionary measure (section 281 para 1 fig 10a CCP). Only the Public Prosecution Service has the possibility to appeal against the decision of the court to terminate the proceeding after diversionary measures (section 209 para 2 CCP). If the appeal is accepted, the trial must be carried on, in which a new application of diversionary measures is excluded, since the court is bound to the decision of the appeal court, unless the facts do not change. The victim of the criminal offence has no remedy against the termination of the proceeding after diversionary measures.

4. Reopening of the Case Closed on Different Grounds It is possible to reopen a dropped case, if the punishability of the act is not statute barred, under the following conditions: —

If the accused has not yet been questioned on this act and no coercive measure and no coercion have been put on the accused, it is possible to reopen a dropped case without any further requirements (section 193 para 2 fig 1 CCP). In these cases the suspect not yet has been involved in the proceeding and therefore has not got an interest worthy of protection. — If the accused has already been questioned, the withdrawal of prosecution has the force of res iudicata. Therefore it is necessary that new facts or evidence come into existence or become known, which seem to be appropriate—on their own or together with other results of the proceeding—to be a basis for the punishment of the accused (section 193 para 2 fig 2 CCP). In this case the requirements for the continuation of the proceeding are similar to a revision (Wiederaufnahme) of the proceeding with the difference that not the court decides, but the Public Prosecution Service orders to reopen the case.120 — In the event that one of several criminal offences has been dropped (section 192 CCP) the Public Prosecutor can order the continuation of the proceeding, if either s/he has reserved the later prosecution (within three months, but no further requirements are necessary) or if there are new facts or evidence, which seem to be appropriate—on their own or together with other results of the proceeding—to be a basis for the punishment of the accused (section 193 para 3 CCP).

120 A Venier, ‘Einstellung und Anklage im neuen Strafprozessrecht’ [2007] 62 Österreichische Juristen-Zeitung 905, 906; H Nordmeyer ‘§ 193’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) § 193 marginal no 21.

48 Austria —

Finally, the victim of the offence has the opportunity to file an application to continue the investigation, if the law has been violated or has been applied incorrectly, if there are substantial concerns about the correctness of the facts which were the basis for the decision to terminate the proceeding, or if new facts or evidence are produced, which seem to be on their own or together with the other results of proceeding appropriate to clarify the facts of the case in that way that the offender could be punished (section 195 para 1 CCP). The victim has to file the application within 14 days after information of the withdrawal of the proceeding. If the Public Prosecution Service considers the application as legitimate, it has to continue the proceeding independently from other requirements for reopening the case. Otherwise the court has to decide as a senate of three professional judges, if the proceeding is to be reopened. If the court accepts the application, the Public Prosecution Service must continue the proceeding. Against this court decision there is no remedy (section 196 para 3 CCP).

The final termination of the proceeding after a diversionary measure has the force of res iudicata. The decision has the effect that in this case a continuation of the proceeding is only admissible under the requirements for revision of proceedings (Wiederaufnahme; section 352 CCP). Such a renewal after a diversionary measure is according to the jurisprudence only foreseen against the interest of the accused.121 Therefore only the Public Prosecution Service may apply for a revision of the case. The Supreme Court (Oberster Gerichtshof ) has decided that an application for a revision in favour of the accused by the accused is not admissible after diversionary measures.122

5. Committing to Trial and Presenting the Case in Court When the facts of the case are sufficiently clarified and a conviction of the accused seems likely—and the preconditions for diversion are not existent—the state prosecution service has to commit the case to trial (section 210 CCP). If it is an offence which is to be prosecuted by the Public Prosecution Service ex officio (Offizialdelikt), the Public Prosecutor commits the case to trial. When the Public Prosecutor has committed a case to trial, but then has withdrawn the charge, the victim of the crime, who is private party concerned in the criminal proceeding (Privatbeteiligter), may continue the proceeding as so-called subsidiary prosecutor (Subsidiärankläger; sections 65 fig 4, 72 CCP). This possibility is limited to the main trial and requires that the Public Prosecutor has already brought an accusation. If s/he has not yet brought an accusation, the victim may only file an application to continue the proceeding (section 195 CCP). For offences, which only may be prosecuted by the victim of the criminal offence (Privatanklagedelikte/private prosecution offences), the private prosecutor (victim) has to commit the case to trial (section 71 para 1 CCP).123

121 See H V Schroll, ‘§ 205’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 3. 122 Oberster Gerichtshof (Supreme Court) 3 March 2005 SSt 2005/21. 123 Seiler (n 19) 82.

Evidence 49 The case is presented in the court by the prosecutor. At the beginning of the trial the prosecutor has to present the charge mentioning all points of the charge and giving reasons as far as this is necessary to understand the charge (section 244 para 1 CCP).

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence The Austrian CCP does not provide for any general prohibition on the use of illegally or improperly obtained evidence in the criminal procedure or to refer to it in the reasons of a judgment. The fact that evidence has been obtained illegally does not automatically mean that the evidence is not allowed to be used in the trial and in the judgment.124 Thus the Austrian criminal procedure system does not follow the theory of the fruit of the poisonous tree. Only if it is explicitly provided for by the law or constitutional principles require it,125 it is prohibited to use evidence, if it is not obtained according to the rules for the gain of evidence. If it is obtained illegally, but there is no explicit prohibition to use this evidence, it is only possible for the parties to express their doubts about the authenticity and reliability of the evidence. The main aim of the criminal procedure is to find the truth (the so-called principle of substantive truth/Prinzip der materiellen Wahrheit). Only in some specific cases the Austrian law provides for a limitation of this principle to protect higher interests.126 As finding the truth is an important aim of the criminal procedure, only in exceptional cases it is seen as legitimate to make knowingly wrong judgments only for the reason, that available evidence could not be used.127 Finding the truth is seen as a higher value than the correctness of gathering evidence. Therefore eg evidence which has been found in house searches can be used, even if the legal preconditions were not fulfilled. The Austrian legislation provides for some explicit prohibitions to use illegally obtained evidence; eg for the interception of postal communications, monitoring of telecommunication traffic data, interception of the contents of telecommunications and of optical and acoustic surveillance of persons the use of evidence is forbidden, if the requirements for the investigative measure were not existent or if the investigative measure was not legally ordered and authorised (section 140 para 1 fig 1 and 2 CCP). If a person who must not be heard as witness is heard, this witness statement must not be used (section 155 CCP). If a witness who is released from giving evidence has not explicitly renounced this right, his/ her whole statement is null and void and must not be used. The same applies to witness statements of persons who have the right to refuse to give evidence and have not been informed on that right (section 159 CCP). Moreover there is a general prohibition to use statements of the accused or of witnesses as evidence against the accused, if (i) the statement has been made under torture or (ii) the statement has been gained by other illegal 124 E Ratz, ‘Beweisverbote und deren Garantie durch die Rechtsprechung des Obersten Gerichtshofes in Strafsachen (Teil)’ [2005] 52 Richterzeitung 106, 111; K Schmoller, ‘Beweise, die hypothetisch nicht existieren— Beweisverwertungsverbote im geltenden und künftigen Strafprozess’ [2002] 10 Journal für Rechtspolitik 251. 125 See E Ratz, ‘§ 281’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal nos 65ff and 355ff. 126 See Seiler (n 19) 100. 127 See Schmoller (n 124) 251.

50 Austria influence on the freedom of the will or by illegal methods of interrogation, as far as they violate fundamental principles of the procedure and the exclusion of this evidence is necessary to recompense the violation (section 166 para 1 CCP).

2. Admissibility of Written Reports Written reports are admissible as evidence, but only under certain conditions. First of all, they are only admissible if they have been read in the trial or were presented by the presiding judge. This is the consequence of the principle of immediacy (section 258 para 1 CCP). It is not enough that a written report is in the file. Moreover there are restrictions when a protocol of an interrogation of witnesses or another accused, protocols on the gathering of evidence, official documents containing statements of witnesses or other accused persons, and the expertise of experts may be read in the trial. This is only admissible (i) if the questioned persons meanwhile have died, if their residence is unknown or their personal appearance is not possible due to their age, an illness or frailty or due to a residence far away or if they cannot come due to other important grounds; (ii) if the statement of the person questioned in the trial in essential points differs from her/his statement in the investigations; (iii) if the witnesses legitimately refuse to give evidence and the Public Prosecutor and the accused had the opportunity to take part in the interrogation by the court in the investigations (adversarial interrogation); (iv) if witnesses do not make a statement without being entitled to refuse to give evidence; (v) if the accused and the Public Prosecutor agree with the reading (section 252 para 1 CCP). Protocols of former interrogations of the accused may be read in the trial, if the accused does not want to make a statement in the trial or if her/his statement differs from former statements (section 245 CCP).

3. Status of Evidence Obtained in other Member States Due to the fact that in Austria in principle all evidence can be used, normally it is no problem to use evidence obtained in another Member State. There are no explicit rules on the use of evidence obtained in another Member State. Since there are only few exclusions of evidence in the CCP, most evidence can be used in a criminal proceeding.

E. THE RIGHTS OF THE ACCUSED DURING INVESTIGATION AND PROSECUTION

1. General Aspects (a) Introduction Generally speaking, section 49 figs 1 to 12 CCP lists different procedural rights of the accused. These rights are defined in detail in further provisions of the Austrian CCP and cover for example the right to choose a defence counsel (and to be assigned a court appointed counsel free of charge), to inspect her/his file, to apply for the taking of

The Rights of the Accused During Investigation and Prosecution 51 evidence, to obtain interpreting assistance, to file an objection or appeal against a violation of a personal right and several others. However, as the enumeration in section 49 CCP is exemplary and only represents a minimum standard, there are other rights with procedural content as well. (b) Information of the Accused on his Rights As a general principle, section 6 para 2 and section 50 CCP stipulate that every accused must be informed about the motive and purpose of the proceedings initiated against her/ him and her/his essential rights in the proceedings as soon as possible. Essential rights are rights mentioned in sections 49 (see above) and 164 para 1 CCP (rights concerning the interrogation of the accused). The information may be postponed as long as there are special circumstances giving rise to the risk that otherwise the purpose of the investigations may be jeopardised (eg wiretapping of telephone calls). Regarding to the rights of the accused connected to her/his interrogation section 164 CCP specifies that the accused has to be informed about several rights before commencing the hearing, namely about the right to consult with her/his defence lawyer, to be informed on the offence of which s/he is suspected, that her/his statements may be used as evidence, about the right to submit written statements128 and the right to remain silent. In these cases, a postponement of the information is not possible anymore.129 When the accused has been arrested, s/he has to be informed immediately or directly after her/his arrest about her/his right to inform a defence lawyer about her/his arrest and if necessary to apply for a court appointed counsel free of charge (section 171 para 3 fig 1 and 2 CCP). Moreover, the accused must be informed about the right to have another person informed about one’s arrest. (c) Consequences of Non-compliance with Rights of the Accused If the complaint of the accused is directed against acts of the Public Prosecution Service, s/he has the right to file an objection according to section 106 CCP. If her/his complaint is directed against decisions of the court or if s/he thinks that—during taking evidence—her/ his subjective rights were infringed by the court, s/he may file an appeal pursuant to section 87 CCP. Against acts of the criminal police without an order by the Public Prosecution Service there is no judicial control by a court in the framework of the criminal procedure at the moment.130 As regards the right to legal assistance, the right to be informed about the charges and that the statement of the accused may be used as evidence and the right of silence, other procedural consequences are provided for: According to section 152 para 1 CCP the rules on questioning (section 153, 164 CCP) must be applied, as soon as it is clear, whether a person is an accused or not. These rules say that the accused has to be informed about the aforementioned rights prior to the hearing (section 164 para 1 CCP). If the criminal police or Public Prosecutor circumvent those rules by so-called inquiries (Erkundigungen131), the

128 K Kirchbacher, ‘§ 164’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 17. 129 Ibid marginal no 10f. 130 See section B1(e). 131 See section B1(a).

52 Austria questioning will be null and void. As consequence these statements must not be used in the trial, otherwise the judgment is null and void (section 281 para 1 fig 2 CCP).

2. Presumption of Innocence According to section 8 CCP every person is regarded as innocent up to her/his conviction which has the force of res iudicata. Since in Austria the ECHR is part of the constitution, Art 6 para 2 ECHR has the position of constitutional law.132 The Austrian Constitutional Court sees the presumption of innocence as a principle which dominates the whole Austrian legal system.133 The principle of presumption of innocence does not only refer to judges, but also to Public Prosecutors. They both should treat a case without a preconceived opinion that the accused has committed the offence.134 A consequence of the presumption of innocence is that the Prosecution Service in principle has the burden of proof and that doubts on the charge must always have a positive effect on the accused. There has been a discussion in constitutional doctrine, whether the application of diversionary measures is an infringement of the presumption of innocence.135 The prevailing opinion does not see such a conflict, since the application of diversionary measures does not implicate a declaration of guilt.136 Diversion is an instrument which redounds to the accused’s advantage, since it gives always the opportunity to the accused to demand the continuation of the (classical) criminal proceeding. Therefore diversion does not bring any disadvantage for the accused.

3. The Right of the Defence to Undertake Investigative Measures/Acts in their own Right There is no explicit rule in the Austrian CCP on the right of the defence to undertake investigative measures. In principle, it is seen as admissible that defence lawyers undertake investigative measures. The Austrian law assumes that the defence lawyer plays an active role. It obliges and authorises the defence lawyer to use every means of defence and to bring forward everything which serves the defence of the accused, as far as this does not violate the law. The right to undertake investigative measures itself does not violate the law.137 It is admissible for 132 See C Grabenwarter, ‘§ 8’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal nos 2 and 3; EBRV 25 BlgNR 22 GP, 33. 133 Verfassungsgerichtshof (Constitutional Court) 11 October 1986 VfSlg 11.062; Verfassungsgerichtshof (Constitutional Court) 28 September 1995 VfSlg 14.260. 134 See F Höpfel, Staatsanwalt und Unschuldsvermutung (Vienna, Orac, 1988) 13ff. 135 R Walter, K Zeleny, ‘Die Diversion durch den Staatsanwalt nach §§ 90 a ff StPO in verfassungs- und verwaltungsrechtlicher Sicht’ [2001] 56 Österreichische Juristen-Zeitung 447, 450f; P Pernthaler, C Ranacher, ‘Der verfassungswidrige Ablasshandel. Eine Untersuchung zur strafrechtlichen Diversion der Zahlung eines Geldbetrages durch den Staatsanwalt’ [2002] 124 Juristische Blätter 280, 284f. 136 D Kienapfel, F Höpfel, R Kert Strafrecht Allgemeiner Teil, 14th edn (Vienna, Manz Verlag, 2012) 319; Höpfel (n 117) 140; Höpfel (n 116) 334; Grabenwarter (n 132) § 8 marginal no 15; see also Oberster Gerichtshof (Supreme Court) 30 September 2008 1 Ob 99/08b. 137 M Ainedter and others, ‘Grundsätze der Strafverteidigung. Arbeitsgruppe Strafrecht und Arbeitskreis Berufsrecht des Österreichischen Rechtsanwaltskammertages’ [2007] 69 Österreichisches Anwaltsblatt 183, 185; G Ruhri, ‘Anwaltliche Ermittlungen als Mittel effektiver Verteidigung’ in R Soyer (ed), Strafverteidigung—Konflikte und Lösungen, 1st edn (Vienna, 2004) 49, 50.

The Rights of the Accused During Investigation and Prosecution 53 the defence to gather information, to visit the crime scene, to make photos and sketches, to obtain expertise and to question witnesses.138 Of course, defence lawyers must not use any means of coercion, eg they must not force a witness to give a statement. The questioning of witnesses sometimes is seen as problematic, since this could be seen as conspiracy between the defence and the witnesses.139 But in principle it is admissible that the defence lawyer has contact with witnesses, the only thing which is not allowed is to influence the witnesses in an illegal way. The Austrian CCP gives the right to the accused and to the defence to bring in persons with specialised knowledge for the interrogation of experts. This private expert does not have a right to ask questions on his own, but s/he can support the defence lawyer.

4. The Right to Legal Assistance The accused has the right to be assisted by a defence lawyer in every stage of legal proceedings (section 7 para 1 CCP). Based on this principle the accused has the right to choose a defence lawyer (section 49 fig 2, section 58 para 1 CCP) and—if the costs will otherwise affect her/his or her/his family’s subsistence—to obtain a court appointed counsel free of charge (Verfahrenshilfeverteidiger, section 49 fig 2, sections 61 and 62 CCP).140 Furthermore, the accused has the right to contact a defence counsel, to consult with her/him and to call her/ him in the interrogation (section 49 fig 4, 5 CCP, sections 58, 59, 164 para 1 and para 2 CCP). However, certain restrictions of this right are foreseen particularly for the interrogation of the suspect. The right to call in a defence counsel to the interrogation is mainly a right that a defence counsel is present during the interrogation. S/he must not take part in the hearing; only after the end of the questioning s/he may ask additional questions to the accused.141 However, the accused is obliged to have a defence lawyer (notwendige Verteidigung), if amongst others s/he is detained in pre-trial detention (section 61 para 1 fig 1 CCP).

5. The Right to be Informed About the Charges and that his/her Statements may be used as Evidence The Austrian CCP foresees in various provisions the right of the accused to be informed about the subject of the suspicion against her/him and about the offence s/he is charged due to the alleged facts (section 6 para 2, section 49 fig 1 and sections 50, 164 para 1 CCP). Section 164 para 1 last sentence CCP says that the accused has to be informed about the fact that her/his testimony serves her/his defence, but that it may also be used as evidence against her/him (see also section 6 para 2 CCP). 138 See J Bockemühl, ‘Eigene Ermittlungen des Strafverteidigers—Ein Plädoyer für eine aktive Strafverteidigung’ [2010] 8 Journal für Strafrecht 59, 64. 139 Ibid 59. 140 If the court assigns a court-appointed counsel free of charge, the accused still has to bear the costs in part (lump sum payment, depending on the level of the court by which the accused has been convicted), if s/he has been convicted and this payment does not affect her/his or her/his family’s subsistence (s 393 para 1 a CCP). The remaining sum or the whole—if s 393 para 1 a CCP does not apply—is borne by the state (s 393 para 2 CCP). 141 Kier (n 22) 183. Note that police may even not call in a defence counsel at all, whenever this appears to be necessary in order to avoid any risk to the investigations, or an impairment of evidence. The defence counsel may as well, according to s 94 CCP, be excluded from the interrogation, if s/he does not observe the rules as laid down in s 164 para 2 CCP (see Fabrizy (n 49) § 164 marginal no 5).

54 Austria 6. The Right to Full Recording of the Statement and to Submit Written Statements As the interrogation of the accused is a gathering of evidence, it has to be documented in a protocol, pursuant to section 96 CCP. Protocols have to be written down in full script (Vollschrift).142 In principle, statements are not to be recorded literally, only the essential content must be recorded. By request of the examined person or, if this is necessary for the evaluation of the case and the results of the interrogation, statements must be recorded literally (section 96 para 3 CCP). If the accused is asked questions that confront her/him with circumstances that still need to be determined by her/his answers (leading questions),143 the answers given by the accused have to be recorded literally as well (section 164 para 4 CCP). Furthermore, the accused has the right—after reviewing the transcript—to request amendments and corrections before signing. Section 164 para 3 CCP stipulates that in principle the hearing of the accused shall be conducted orally.144 Only in case of complicated questions that require special expertise or an evaluation by an expert, the accused shall be allowed to provide additional comments in writing within a reasonable time frame.

7. The Right to Silence During the Pre-Trial Procedure The Austrian Constitutional Court derives the principle nemo tenetur se ipsum accusare from the accusation principle (Art 90 para 2 of the Constitution).145 This principle is defined in detail in section 7 para 2 and section 164 paras 1, 4 CCP. According to these provisions, the accused must not be forced to self-incrimination. S/he is always free to make a statement or to refuse to answer questions.146 The right to silence is a right of the accused who, in his/her own case, never has the position of a witness. Outside the very same case the person when asked as a witness has the privilege not to testify if running the risk of self-incrimination (section 157 para 1 fig 1 CCP). The same rule applies if there is a risk to incriminate a relative. However, the accused is obliged to attend the questioning (section 153 para 2 CCP). If the accused refuses, s/he can be forced to appear, if this was explicitly threatened in the summon. The taking of blood or comparable minor interventions does not, under certain prerequisites, require the consent of the person concerned and they as well may be enforced by coercion. Insofar, the accused is indirectly obliged to provide blood samples and comparable minor interventions as smears from the oral cavity.147 Parts of the doctrine see a conflict between the duty to accept the taking of blood or smears from the oral cavity and the nemo tenetur principle. But the prevailing opinion regards it conform to the jurisprudence of the 142 If the text is dictated, it is possible to provisionally write in shorthand (Kurzschrift) or to dictate with technical means. However, the shorthand writing and the recording immediately have to be transcribed into full script. 143 Note that such questions are only admissible, if they are required to understand the context (s 164 para 4 CCP). 144 K Kirchbacher (n 128) § 164 marginal no 34. 145 Verfassungsgerichtshof (Constitutional Court) 22 June 1966 VfSlg 5295, 3 March 1984 VfSlg 9950, Verfassungsgerichtshof (Constitutional Court) 25 September 1990 VfSlg 12.454. 146 See for more details section B1(b). 147 A Birklbauer ‘§ 123’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 36f.

The Rights of the Accused During Investigation and Prosecution 55 ECtHR. However, only proportionate coercion is admissible; in the case of smears from the oral cavity, if the accused refuses to do so, the criminal police have to take the biological material in another possible way, for example through abrasion on the neck or front.148

8. The Right to a Translator During the Pre-Trial Procedure The accused has the right to obtain translation/interpreting assistance, if the accused is not able to communicate in the language of the proceedings (section 56 CCP). This assistance may be given by any person who is able to communicate in the language of the proceedings and in the language of the accused, for example by a police officer. Only if an interpreter (Dolmetscher) is necessary in the interest of the judicature (Rechtspflege), the accused has the right to an interpreter. An interpreter is necessary in the interest of the judicature in order to ensure the defence rights of the accused, especially regarding the information of the accused (Rechtsbelehrung) and the taking of evidence in which the accused is participating.149 If the accused is deaf or dumb, but is able to communicate in sign language, a sign language interpreter has to be called in. Interpreters are mainly persons who are provided by the Ministry of Justice to the courts or Public Prosecution Service (section 126 para 2a CCP). If such a person is not available, it is also possible to call in any other qualified person, especially persons who are included in the list of interpreters according to the Federal Act on legally sworn experts and interpreters (Sachverständigen- und Dolmetschergesetz, section 2 para 1).150 If there are reasonable doubts about the impartiality or objectivity of the interpreter or about their expertise, s/he has to be dismissed, either on application or ex officio (section 126 para 4 in connection with section 47 para 1 CCP). Regarding the fees of an interpreter, the sentenced person has to pay the fees, except s/he was not able to communicate in the language of the proceedings and an interpreter thus was necessary (section 381 paras 2a and 6 CCP).

9. The Right to ask for a Special Act of Investigation The accused has the right to request a taking of evidence (section 49 fig 6, section 55 CCP). The request has to contain the matter on which the evidence is taken (Beweisthema—the facts that should be proved), the evidence (Beweismittel) and information which is necessary for the performance of the taking of evidence. Illegal, unusable and impossible evidence must not be taken (Beweisverbote). Besides that, an application for the taking of evidence may be rejected, if (i) the matter on which the evidence is taken is apparent or for the evaluation of the suspicion insignificant, (ii) the submitted evidence is not suitable to prove significant facts, or (iii) the matter on which the evidence is taken can be considered proven (section 55 para 2 CCP). Furthermore, a taking of evidence may be reserved to the trial. However,

148 149 150

EBRV 25 BlgNR 22 GP, 172. Bertel, Venier (n 30) marginal no 133. Bundesgesetzblatt No 137/1975.

56 Austria this is forbidden, if the result of the taking of evidence may be suitable to directly eliminate the suspicion, or there is danger of losing evidence concerning a significant fact.151

10. The Right to be Informed About the Place of Detention and the Right to have Another Person Informed about one’s Arrest Basically, the Austrian CCP does not foresee a right of the accused to be informed about the place of detention. However, section 183 para 4 CCP stipulates that if there is a change of the place of detention, the responsible jail has to inform the defence counsel about this change. On the contrary, the accused has to be informed that s/he has the right to notify a relative or another person of trust and an attorney about her/his arrest (section 171 para 3 fig 1 CCP).

11. The Right to be Informed About Possibilities of Reconciliation with the Victim If certain prerequisites are met, the Public Prosecutor has to apply diversionary measures according to sections 198 ff CCP.152 Within this procedure the reconciliation between the accused and the victim is advised. In the case of application of diversionary measures, the accused has to be fully informed about her/his rights and thus presumably also about the possibility to reconcile with the victim.

12. Access to the File During Pre-Trial Proceedings The Austrian CCP provides for the right of the accused (and the defence lawyer) to have access to all results of the investigations by the criminal police, the Public Prosecution Service and the court during the investigation (section 49 fig 3 and section 51 para 1 CCP) and after the investigation. The right to have access to the file includes also the right to have a look at all evidence, as far as this is possible without any disadvantage for the investigations (section 51 para 1 CCP). In principle, the accused has access to all documents of the file and all results of the investigations. If there is fear that a witness or a third person could be in serious danger for her/his life, health or freedom, when her/his name or other personal details become known, it is admissible to garble personal data or other circumstances, which make a conclusion to the identity of the endangered person possible. Beyond that, before the end of the investigations a limitation is possible insofar as particular circumstances give reason for the fear that the purpose of investigation might be jeopardised, if the accused knows about specific pieces of the file. In the case that the accused is in pre-trial detention, this limitation of access records is inadmissible for all documents which are relevant for the evaluation of the suspicion or the reasons for pre-trial detention (section 51 para 2 CCP). If diversionary measures are applied a limitation is not admissible, since the accused has to know all relevant aspects of the case to give her/his consent to a diversionary

151 152

EBRV 25 BlgNR 22 GP, 80. For further information see section C3.

The Rights of the Accused During Investigation and Prosecution 57 measure.153 As far as the accused has access to file, copies of the file have to be given to the accused for a fee (section 52 para 1 CCP). The victim is authorised to have access to the file during investigation and in the trial phase as far as her/his interests are concerned. In principle, the rules on access to the file which apply to the accused, also apply to the victim. Beside the mentioned limitation of access to the file the access may also be limited or denied, as thereby the purpose of the investigations or an uninfluenced statement as witness would be endangered (section 68 para 1 CCP). The Public Prosecution Service or the court can give access to file to other persons than the accused, the defence lawyer or the victim in the case of a well-founded legal interest, which must not be in conflict with public or private interests (section 77 para 1 CCP). The knowledge of the file must be adequate to support the position of the applicant in an administrative, civil or criminal procedure.154 Experts, who have to write an expertise in the proceeding, have access to file up to that extent which is necessary for their work (section 127 para 2 CCP). Moreover access to file is admissible for scientific work which is not individual-related and other comparable investigations lying in public interests. This access is given to well-accepted scientific institutions (section 77 para 2 CCP). The access to file by other (Austrian or foreign) authorities is only admissible under the requirements of legal assistance (section 76 CCP).

13. Rights of Legal Persons in Criminal Proceedings As soon as there is a suspicion that a legal entity (Verband) could be responsible for a criminal offence, the legal entity has the rights of an accused (‘prosecuted legal entity’) in the proceeding (section 13 para 1 VbVG). In principle, the rights mentioned above also apply to legal persons and their representatives who have the position of an accused. There are special rules regarding the defence of legal persons. If all members of the external organs of a legal entity themselves are suspected of having committed the criminal offence, the court has to assign a defence lawyer ex officio. Otherwise the members of the organ would be obliged to play two different roles: on the one hand as accused on their own in the proceeding against the individual, and on the other hand as accused in the proceeding against the legal entity. This defence lawyer has to do everything to bring about a correct representation of the legal entity. For example s/he has to inform and call a meeting of the relevant organs, owners or members. In a joint stock company, the defence lawyer has to call a meeting of the supervisory board, if all managers are accused; in an association, a meeting of members must be called.155 The assignment of this defence lawyer ends, when the legal entity has appointed a representative or has chosen a defence lawyer on its own.

153 See C Achammer, ‘§§ 51–53’ in H Fuchs, E Ratz (eds), Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 19. 154 See B Oshidari, ‘§ 77’ in H Fuchs, E Ratz (eds) Wiener Kommentar zur Strafprozessordnung (Vienna, Manz Verlag, 2002) marginal no 2. 155 See M Hilf, F Zeder in F Höpfel, E Ratz (eds), Wiener Kommentar zum Strafgesetzbuch, 2nd edn (Vienna, Manz, 1999) § 16 VbVG marginal no 9.

2 Denmark BIRGIT FELDTMANN AND SEBASTIAN KNOP REVENTLOW

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

I

N THE DANISH legal system the criminal process consists of three phases: investigation, prosecution and trial.1 The criminal investigation (efterforskning) is the phase of the criminal proceeding in which the police/prosecution service determines whether a crime which can be prosecuted by the public, has been committed. Furthermore, the investigation aims at gathering the information necessary for the preparation of the trial (Administration of Justice Act2 (retsplejeloven), AJA, § 743). Prosecution (tiltale/tiltalerejsning) is one of the options at the end of the investigational phase. The other options are either ending the case because a conviction is unlikely (påtaleopgive) or by a withdrawal of charges, such as ending the case for reasons of opportunity (tiltalefrafald, see below section C1(c)). Furthermore the police/prosecution service can in a number of law-defined situations deal with the cases in a shortened procedure. Not all of these procedures involve the courts.3 If the evidence gathered under the investigation indicates that the trial might lead to a conviction, the prosecutor initiates the prosecution by issuing a (written) indictment (anklageskrift) (AJA, § 834). In this regard Denmark follows the ‘principle of accusation’, ie dealing with a criminal case in a trial is dependent on the decision to prosecute on the part of the public prosecutor (AJA, § 718).4 During the trial phase the court reviews the question of whether the accused (tiltalte) is guilty of the crime outlined in the indictment. If the accused is found guilty, the court also decides on the question of punishment. All criminal cases start in the court of first instance, ie in one of the 24 courts of first instance (byretter), and will be tried either by a single (professional) judge, a ‘mixed court’ (a professional judge as chairperson and two lay judges) or as a jury case.5

1 LB Langsted, P Garde, V Greve, Criminal Law in Denmark, 3th edn (Alphen aan den Rijn, Kluwer Law International, 2011) 126ff. 2 The Danish Administration of Justice Act (retsplejeloven), AJA, see: www.retsinformation.dk/Forms/R0710. aspx?id=138875. 3 Langsted, Garde, Greve (n 1) 181ff. 4 Eva Smith et al, Straffeprocessen, 2nd edn (Copenhagen, Thomson, 2008) 25f. 5 Langsted, Garde, Greve (n 1) 198ff.

General Aspects of the Procedure 59 As mentioned above, criminal cases can also be dealt with in ‘shortened procedures’ or as ‘shortened trials’ in some situations defined by the law.6

2. Sources of Criminal Procedural Law From the Danish point of view the general ‘rule of law’ principle requires that the main outline of the criminal procedure has a statutory basis, therefore the criminal procedure in Denmark is in general based on statute. Compared to some other legal systems, the Danish legal system could be labelled as ‘pragmatic’ and ‘based on common sense’, even if it can be argued that as a starting point it is law that is rooted in the continental legal tradition. By this we mean, for example, that certain questions which are clearly codified in other legal systems, are not the subject of legislation in Denmark, but often seen as ‘common sense’ and therefore part of the Danish system. Part of the explanation for this might be (to highlight some main themes in a simplified way) that in Denmark the public authorities enjoy considerable public trust, and there has been very little experience of severe abuse of powers in connection with criminal proceedings. It can be argued that the Danish legal system has less focus on formal rights and protection, and therefore often has no regulation of the consequences if these are violated. However, this does not mean that suspects are without protection and can be treated arbitrarily. We mention below the general possibility to refer conflicts (concerning the legality of investigation steps taken by the police and on conflicts concerning the rights/ competences (beføjelser) of the accused and the defence) to the court. This is an important aspect of the system of checks and balances in the Danish legal system. Concerning coercive measures, in the Danish context it is argued that at a minimum, acts that interfere with citizens’ rights require a legal basis (hjemmel). Therefore coercive measures/compulsory means (tvangsmiddel) need a statutory basis. On the other hand it is argued that acts which are legal for every citizen do not need to be based on a statute, eg the observation of persons in a public place. However, a tendency to greater regulation can be seen in that eg the showing of photographs to witnesses, confrontation and public advertisement are now regulated by the AJA (§§ 791a, 812–19).7 The interpretation of statute-based rules is often guided by case law or general guidelines within the prosecution service. If a procedural practice operates in favour of the citizen (eg the ending of a case despite sufficient suspicion), it might not be law-regulated, but rather based on ‘law in action’.8 Since 1992 the ECHR has been incorporated in Danish law, meaning that the Convention and its Protocols are part of Danish law. Therefore it can be said that nowadays procedural rules are found in both the AJA and the Convention.9 The ECHR and connected case law of the ECtHR have had a quite substantial influence on the Danish procedural system, partly

6

Ibid 181ff. Langsted, Garde, Greve (n 1) 126. 8 Birgit Feldtmann, ‘Anklagemyndighedens rolle—nogle komparative tanker om legalitet og opportunitet i det danske og det tyske retsystem’ [2002] 3 Nordisk Tidskrift for Kriminalvidenskab 162ff. 9 Gorm Toftegaard Nielsen, Straffesagens Gang, 4th edn (Copenhagen, Jurist- og Økonomforbundets Forlag, 2007) 24f. 7

60 Denmark resulting in new statutory provisions and partly leading to an extended focus on formal procedural rules.10

3. Bodies Carrying out Investigation and Prosecution The Danish Prosecution Service is hierarchically organised, with three levels within the jurisdiction and supervision of the Minister of Justice. The highest level of the Prosecution Service is the Director of Public Prosecutions (rigsadvokaten), the second level consists of six regional public prosecutors and two specialised public prosecution offices, one concerning serious economic crime (Statsadvokaten for særlig økonomisk kriminalitet), the other dealing with serious international crime (Statsadvokaten for internationale straffesager).11 On its lowest level the Chief of Police (politidirektør) is both the chief of the local police and local prosecution service, ie the police and prosecution service are amalgamated at the local level. The Chief of Police is consequently responsible for functions of the local police force and the legal staff of the local prosecution service. The legal staff at the Chief of Police level deals with both police and prosecution matters.12 Due to this amalgamation a clear separation between police and prosecution functions is not always possible or sensible in a Danish context.13 The following has to be understood in this light. (a) Police The police initiate criminal investigations on the basis of a report by a citizen (anmeldelse) or on their own initiative (AJA, § 742(2)). The practical tasks of the investigation are usually carried out by the police. (b) Prosecution Service Together with the police, the prosecution service has as its main duty to initiate and process criminal proceedings against offenders (AJA, § 96, section 1). In connection with the practical steps of the investigation the police in general are not obligated to consult the prosecutors, except for situations in which the law or internal regulations require the involvement of prosecutors. The legal staff of the Chief of Police need, eg, to be involved in the investigation when a court order is required. The legal staff will also be consulted in situations where internal instructions of the Director of Public Prosecution require an early involvement, eg in connection with large-scale and complicated cases. The legal staff may also issue detailed instructions to the police force concerning specific investigative steps. It is not unusual that when the legal staff receive a file for

10

Smith et al (n 4) 29ff. V Greve, ‘The Criminal Justice System in Denmark’, in U Sieber and M Wade (eds), Structures and Perspectives of European Criminal Justice vol 3 (Berlin, Duncker & Humblot, 2011) 8. 12 Ibid 31. 13 Ibid 8. 11

General Aspects of the Procedure 61 the decision on whether to prosecute or not, they send it back to the police with a request for further investigation.14 The above-mentioned two specialised public prosecutor offices (for serious economic crime and serious international crime), have their own ‘in-house’ police investigators working closely together with the legal staff right from the beginning of the case.15 The decision to prosecute is always taken by the prosecution service. Most cases are prosecuted at the level of Chief of Police. More serious crimes which are to be tried by a jury (nævningeting) or in which the accused has rejected his or her right to be tried by a jury, are prosecuted by the regional prosecutors. However, the answer to the question: who is prosecuting, is not identical with the answer to the question: who is taking the decision to prosecute or not. In several situations the competence at the Chief of Police level is limited, and certain decisions of non-prosecution have to be taken by the regional public prosecutor. Serious economic crimes and crimes against the financial interests of the EU will be prosecuted by the Special Prosecutor for Serious Economic Crime. (c) Judges There are no investigative judges as such in the Danish legal system. In the investigational phase the courts only get involved in connection with coercive measures (see below), and when conflicts are brought to the court. (d) Specialised Agencies and Private Prosecution Some specialised public authorities, eg the tax authorities, have extended rights to eg demand information from citizens in connection with the assessment of the tax rate. These rights extend the scope of the police in criminal investigations. Some of the information these public agencies gather might have a self-incriminating relevance in a criminal sense, eg if the review of a company’s financial files indicates tax fraud. The question of extended investigative power of specialised public authorities and its relation to criminal investigation is therefore since 2004 regulated in a special piece of legislation (retssikkerhedsloven, Act on Legal Protection and Administration) which basically tries to distinguish between the authorities’ aim (eg assessing the tax rate) and criminal proceedings (eg investigating tax fraud). The main principle is that if the authority suspects a criminal offence, the information cannot be gathered under the special authority’s empowerment, but only in criminal law proceedings.16 If in connection with their work specialised public authorities suspect that a (fairly insignificant) criminal offence has been committed, the case is referred to the police.17 A few minor offences, such as violations of privacy or defamation, are not dealt with by the public criminal law system, but can be ‘prosecuted’ under a civil procedure by the victim himself/herself (AJA § 989). 14 15 16 17

Ibid 31. Eva Smith et al (n 4) 117f. Toftegaard Nielsen (n 9) 37f. Ibid 42f.

62 Denmark 4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle According to AJA § 742 an investigation is initiated if there is a ‘reasonable presumption’ (rimelig formodning) that a crime has been committed which can be prosecuted by public authorities. This means that the threshold for an investigation is rather low and not dependent on a suspicion specified in detail. If the evidence gathered under the investigation indicates that the trial will lead to a conviction, the prosecutor initiates the prosecution. If the evidence is not sufficient to support this expectation, the case will be ended (påtaleopgivelse, AJA § 721(1)(ii); or, at the very beginning of a potential investigation, just closed, indstilling af efterforskningen AJA § 749). This means that the Danish legal system does not use categories of suspicion in connection with the decision to prosecute, but determines the likelihood of a conviction. The Danish legal system is usually categorised as a legal system following the opportunity principle (see below section C.1.(c)). The reason for this categorisation lies in the AJA provisions concerning ‘withdrawal of charges’ in a number of situations, eg in minor cases, cases against juveniles, or for reasons of resources (AJA § 722(1)), even if the evidence might seem to be sufficient.18 The ‘withdrawal of charges’ can be either unconditional or conditional (AJA § 723). The above-mentioned specified reasons for a withdrawal are supplemented with the provision that prosecutors may also decide not to prosecute if ‘special mitigating circumstances’ are found and as long as this is not harming any public interest (AJA § 722, section 2).

5. The Status of the Accused/Defendant There are no specific rules concerning the status of ‘a person of interest’ to the investigation. However, in connection with certain coercive measures (tvangsindgreb), a distinction is made between a ‘person not suspected’ (ikke mistænkte), a ‘person under suspicion’ (mistænkte) and an actual formal suspect (sigtede).19 The distinction between the above-mentioned categories is not clearly defined in the procedural rules, nor does the law provide clear criteria for the threshold of becoming a formal suspect (sigtet). However, the status of being formally a suspect (sigtelse) is crucial, eg in connection with the right to be informed about the suspicion and the information on the right to remain silent. The problem of the grey zone between a ‘person under suspicion’ and a formal suspect is in practice dealt with by treating the ‘person under suspicion’ as a person with the rights of a formal suspect, without formally designating the person as a formal suspect.20 This procedure is used in cases of doubt if the Police are not sure whether there is sufficient evidence to support a formal status of being a formal suspect and therefore would risk overriding the person’s due process protection of the person (retsgarantier). The person would then have the same rights as a person charged, but is not officially given the status of a formal suspect. The legal effect (retsvirkning) of this is under debate. Some 18 Feldtmann (n 8) 159f. An overview on the specific grounds for a ‘withdrawal of charges’ can be found in Langsted, Garde, Greve (n 1) 183. 19 Smith et al (n 4) 184. 20 Toftegaard Nielsen (n 9) 47f.

Investigation Measures 63 case law21 indicates that not all of the privileges given to a person charged apply in this form of measure. On the other hand, some of the judicial literature states the opposite— that all the rights given to a person charged shall apply.22 If the prosecution service decides to prosecute the suspect, he or she becomes the accused/defendant (tiltalte).

6. Specialised Procedure for Financial Criminal Investigations In the Danish legal system there exists a special investigation/prosecution body for complex/serious financial crimes; the Prosecutor for Serious Economic Crime (Statsadvokaten for særlig økonomisk kriminalitet), based in Copenhagen. This does not mean that there is a special procedure for financial criminal investigations.

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect In Danish law there is a distinction between being a ‘person under suspicion’ and being a ‘formal suspect’ (sigtet). The distinction between these two categories is, as mentioned above, vague. The minimum degree of suspicion required for commencing a criminal investigation is that there has to be a ‘reasonable presumption’ (rimelig formodning) that some crime has been committed. Also, it is required that a minimum of evidence points towards a person before he is formally designated as a formal suspect.23 This restriction also lies in the provision of AJA § 96(2) which requires the prosecution service (and indirectly thereby the police also) to avoid criminal proceedings against innocent persons.24 As mentioned above, the police have in practice the opportunity to interrogate persons with the ‘rights of a formal suspect’.25 This procedure is used when the police are unsure whether there is sufficient evidence to support a charge, and therefore would risk overriding the due process protection of the person (retsgarantier). The person would then have the same protection as a formal suspect, but is not formally charged with a crime. The AJA only expressively regulates the question of notification requirements concerning two issues: the formal suspect shall be informed of the suspicion against him/her and of his right to remain silent (AJA § 752(1)). A person can be a formal suspect of all types of offences, no matter how trivial the offence may be. However, in cases of no significance the police might not in practice use the status of a suspect. The police have the authority to charge a suspect on the spot. This will usually be done orally. But when an investigation is being discontinued, or the status

21

Case U 1999 1744 Ø. H Gammeltoft-Hansen, Strafferetspleje del 2 (Jurist- og Økonomforbundets Forlag, 1989) 12; Smith et al (n 4) 186–87. 23 Smith et al (n 4) 184–85. 24 Ibid 184. 25 Ibid 186. 22

64 Denmark of being a formal suspect has been dropped, the suspect will receive a written notice from the prosecution office. The police record the treatment of a person as a formal suspect and other steps of investigations in reports which are passed over to the prosecution office and the defence during investigations. The formal suspect has the right to be notified of the charges against him; this happens usually in connection with the first interrogation (see AJA § 752, section 1).26 If a person is only a ‘person under suspicion’ but not charged as a formal suspect, he or she does not have the right to be informed of an ongoing investigation. As long as the criminal case is ongoing, a third party, a ‘person under suspicion’ for instance, has no right to access the documents of the case (see also below, section E.12.). The question of degree of suspicion is relevant in connection with the question of coercive measures (tvangsindgreb). The requirement of the degree of suspicion is intensified the more intrusive the measure in question is. For instance, a suspect can be arrested if there are ‘reasonable grounds for suspicion’ (begrundet mistanke) to believe that a crime has been committed. Likewise, a formal suspect can be taken into custody (varetægtsfængslet) if there are ‘strong grounds for suspicion’ (særlig bestyrket mistanke). In the event of a criminal investigation taking longer than 18 months after a person has been made a formal suspect, the prosecution office shall notify the person about what has happened and what the next investigatory steps will be.27 The court can review the criminal investigation as to the course of justice in relation to the protracted status of formal suspect, if the person concerned petitions for this. He has the right to apply for a court decision if the charge has been sustained for a period of more than 18 months and no steps have been made towards a criminal trial.28

2. Questioning the Suspect Pre-Trial The investigating authorities have the right to question the suspect, regardless of the level of seriousness of the crime. The formal suspect has the right to remain silent, which is a manifestation of the rules concerning self-incrimination. AJA § 752(1) states that the person to be interviewed must be informed of this right.29 The formal suspect is consequently not obliged to answer the questions of the authorities. A person is only required to give his name, home address and date of birth.30 It is not allowed to prolong an interrogation to force a confession, nor is it legal to trick the suspect into giving information that may damage the defence (AJA § 752). A person who is being interrogated has the right to file a complaint if he feels mistreated or thinks the police have acted wrongfully. Any such complaint may be further investigated by the police complaints board (politiklagenævnssag). During the interrogation the police have no authority to promise a less severe sentence in order to obtain a statement/confession (eg in connection with a ‘plea bargaining’). It is

26 27 28 29 30

Toftegaard Nielsen (n 9) 48. § 718 a (ii) AJA. § 718 b (i) AJA. Smith et al (n 4) 200–02. Ibid 187; § 750 AJA.

Investigation Measures 65 to be noted that the prosecution authorities can narrow down (beskære) a criminal case if the person is charged for several offences, and the AJA does not prevent the prosecution services excluding some charges (forhold) if the suspect has confessed to some or most of the offences. One reason for this is that it may be more costly to complete a normal criminal trial than a shortened trial of guilty plea (tilståelsessag).31 In practice, the police have the opportunity to interrogate suspects with the ‘rights of a person charged’, (see above section A.5.).32 During the interrogation, the police officer records the suspect’s statement in a report. The suspect has the right to review the written report.33 The report does not serve as evidence in itself. It should be noted that Danish law acknowledges the possibility of confronting the accused/defendant (tiltalte) with statements given to the authorities prior to the trial,34 but if the accused/defendant asserts his right to remain silent, police reports cannot be used to confront the accused/defendant.35 The formal suspect has the right to a defence lawyer, but he can decide for himself whether he wants the defence lawyer to be present during the interrogation or not. It is the duty of the police to secure the presence of a defence lawyer before the interrogation begins if the suspect has requested this.36 The defence lawyer shall be informed upon application of the time and place of the interrogation, cf AJA § 745(c)(i).37 If no such application has been made, there is no law that deals with this issue directly, but because the defence has the right to access all the documents in their entirety,38 the time and place of the execution of the measure can be assumed to come to the knowledge of the defence. If the formal suspect and the interrogating person(s) cannot find a common language to communicate in, it will be necessary to provide an interpreter.39

3. Interrogation of Witnesses at the Investigation Stage There are no direct rules regarding the degree of suspicion or the gravity of the offence that relate to the interrogation of witnesses, including the complainants (anmelder)/injured party (forurettede). The complainant has the right to submit a report stating what has happened and the further circumstances of the event regarding the possible offence. As a guideline, AJA § 742(2) indicates that the requirement for commencing an investigation is that there is a ‘reasonable presumption’ (rimelig formodning) that a criminal offence has been committed. The police have the right to investigate and subsequently interrogate witnesses, if this requirement is met.40

31 32 33 34 35 36 37 38 39 40

Toftegaard Nielsen (n 9) 124–29. Smith et al (n 4) 186. Toftegaard Nielsen (n 9) 74–75. Smith et al (n 4) 671–73. Ibid 669–70. Smith et al (n 4) 322–24. Ibid 322. § 729(3) AJA. Smith et al (n 4) 322. Ibid 617.

66 Denmark In practice, the necessary level of suspicion is set very low, so the police can (de facto) always interrogate witnesses. However, no one, including potential witnesses, has any obligation to inform the police about anything other than their name, address and date of birth.41 Furthermore, lying to the Police is as such not criminalised in the Danish legal system; not telling the truth will not have legal consequences.42 If the police want to interrogate a public official/public servant, the rules of witness exclusion (vidneudelukkelse) state that public officials who are subject to a duty of confidentiality have to obtain the consent from the authorities, if the duty of confidentiality is to be overridden, cf AJA § 169.43 This will often be relevant in trial proceedings. AJA § 170 deals with confidentiality issues in professional occupations—doctors, lawyers and clerics etc.44 There is only very limited scope to override the obligations of confidentiality of these professionals, and for defence lawyers and clerics confidentiality cannot be overridden.45 The rules of witness exemption (vidnefritagelse) state that witnesses who have a special relationship to or are part of the suspect’s family, shall be informed that they are not obliged to answer the questions of the police (or the judge, for that matter). They may, however, do so voluntarily, AJA § 171–72.46 The rules concerning self-incrimination also apply at this stage.47 If a minor (under 15 years) is interrogated, a special procedure can be used. A person of trust often assists the minor, and the interview is video recorded. This procedure is to protect the minor from the stressful situation an interrogation often is. The defence lawyer is obligated to participate in the interrogation.48 The suspect is not allowed to oversee the interrogation, but has the right to examine the video recordings. The Director of Public Prosecutions (Rigsadvokaten) has issued further instructions regarding the use of video interrogation, in cases regarding sexual abuse of children.49 If the witness risks substantial loss of capital in consequence of his upcoming testimony, he is not obliged to give his statement, cf AJA § 171(2).50 This is a consequence of the rules concerning self-incrimination, but likewise a result of the lacking obligation to cooperate with the police. As for notification requirements, the defence lawyer has the right to be notified of any out-of court (udenretlig) investigational steps (efterforskningsskridt) that are likely to be used in the later court trial as anticipatory evidence (anticiperet bevisførelse).51 This includes among other things interrogations, confrontations and other steps that may later serve as evidence. The notification duty is only applicable for steps that stand as evidence

41

Toftegaard Nielsen (n 9) 70. Only in a few specific situations is lying to the police criminalised, mainly if the intention is to bring suspicion upon an innocent person, CC ch 17. 43 Smith et al (n 4) 620–22. 44 Ibid 622. 45 Ibid 623. 46 Toftegaard Nielsen (n 9) 72–73. 47 Ibid 70. 48 Smith et al (n 4) 328. 49 Rigsadvokatens meddelelse No 2/2007. 50 Smith et al (n 4) 625. 51 Ibid 324–27; case U 2003 1327 H. 42

Investigation Measures 67 in itself—in practice this rule often involves DNA declarations, weapon examinations and so forth.52 The police are not obliged to notify the defence lawyers of a forthcoming interrogation of a witness who is expected to give valuable information regarding the particulars of the case.53 This person will later give his testimony in court during the trial, and his statement to the police is therefore not evidence in itself, cf AJA § 745(d)(i).

4. Arresting the Suspect and Detention for Questioning A suspect can be arrested if there are ‘reasonable grounds’ (rimelig grund) to suspect that the person in question has committed an offence, cf AJA § 755(1). This means that it is required that there is at least some evidence pointing toward the suspect.54 If the offence includes premeditated homicide or severe personal injury, the police have the right to arrest anyone at the scene of the crime if he or she is suspected of being involved in the crime, cf AJA § 755(3). Danish law has very low requirements regarding the types of offences that can result in arrest. This is due to the practical needs of making arrests immediately in various situations. The police have the authority to execute arrests in cases involving minor offences which would normally result in fines.55 A person can also be arrested if he refuses to inform the police of his name, home address and date of birth.56 On the other hand, the period of detention after the arrest has to be in reasonable proportion to the gravity of the offence. An instantaneous arrest for an offence that would only result in a fine might be considered disproportionate and might well result in a subsequent claim for damages.57 It is required that the arrest is imperative, and not just convenient. This is due to the rule of proportionality, cf AJA § 755(4), which demands that a less intrusive measure is to be preferred to the more intrusive action of the arrest.58 In practice, the courts seem to interpret this requirement quite broadly.59 Furthermore there is a time limit for the arrest and subsequent detention. If the imprisonment is going to be for more than 24 hours, the detainee (arrestant) must be taken before the court for a preliminary examination (grundlovsforhør).60 In the preliminary examination it is up to the judge to decide whether or not the detainee shall continue to be held in pre-trial custodial detention (varetægtsfængsling) or sustained arrest (opretholdt anholdelse).61 Sustained arrest (opretholdt anholdelse) is a special form of arrest that extends the original time limit of 24 hours to 72 hours. It is up to the court to decide whether there is sufficient basis for using the measure of sustained arrest.62 This measure 52 53 54 55 56 57 58 59 60 61 62

Case U 2005 3319 Ø; Case U 2003 2645 Ø. Case U 1996 1266 V. Smith et al (n 4) 521; Case U 1986 383 V. Smith et al (n 4) 522. Case U 1959 949 Ø. Rigsadvokatens meddelelse No 1/2010 and 2/2010; the principle of AJA § 755(4). Smith et al (n 4) 524. Ibid 524. See also case U 1966 90 H. Smith et al (n 4) 531–33. Ibid 533–36. Ibid 533–34.

68 Denmark will typically be used when there are not quite sufficient grounds to justify pre-trial detention, but specific reasons to justify the continuance of the arrest. It is the police that decide and execute the arrest in the first place; however, in certain situations civilians have the right to execute a so-called citizen’s arrest.63 If the police find an arrest questionable, they can refer the question to the court for a review. Even though this is a rare practice, the interpretational sources of law (forarbejder) indicate the use of this possibility in cases regarding comprehensive financial crimes.64 The arrest has to be documented in a report of arrest (anholdelsesrapport). It will also be noted in the police computer system. There are two forms of judicial review in connection with an arrest. The first concerns the timescale. As mentioned above, the police can only detain the suspect for up to 24 hours, beyond which a judge reviews the case in the preliminary examination (grundlovsforhør).65 In the preliminary examination the judge decides whether or not the detainee continues the pre-trial custodial detention (varetægtsfængsling) or sustained arrest (opretholdt anholdelse).66 The second type of judicial review concerns the legality of the arrest/custodial detention. When the charges are withdrawn, or the person indicted (tiltalte) is being acquitted of the charges which served as the basis of the arrest, the detainee has the right to seek compensation.67 The Regional Public Prosecutor (statsadvokaten) processes the application of compensation, cf AJA § 1018(e)(i), and the legality of the arrest will be reviewed. The Regional Public Prosecutor determines whether or not the applicant has a legitimate claim.68 However, as the superior of the Chief of Police, the Prosecutor will also review the measure in itself.69 This form of review works as a subsequent measure, due to the fact that it is only possible to submit an application for compensation after the case has been closed.70

5. Pre-Trial Custodial Detention Generally speaking, there are two justifications for pre-trial custodial detention, which require two different levels of suspicion. The first type of custodial arrest serves the purpose of securing the suspect’s presence (unddragelsesarrest), ensuring that the suspect does not commit further crimes (uskadeliggørelsesarrest) and preventing the suspect from interfering with the evidence (kollusionsarrest).71 These are the regular form of pre-trial detention. The term used for this type of detention regarding the degree of suspicion is ‘reasonable suspicion’ 63

Ibid 529–30. Betænkning 728/1974, 58; Smith et al (n 4) 528. 65 Smith et al (n 4) 531–33. 66 Ibid 533–36. 67 Ibid 900–07. 68 Compensation will often be refused if the applicant has opposed to the investigation or given special reason to suspect him. For further information regarding compensation, see Rigsadvokatens Meddelelse No 1/2011 and Anklagemyndighedens Årsberetning 1998–1999. 69 Smith et al (n 4) 116. 70 AJA § 1018 lit a. 71 V Greve, T Elholm, Introduction to Criminal Procedure in Denmark (Copenhagen, The Danish Institute for Human Rights, 2005) 22. 64

Investigation Measures 69 (begrundet mistanke). This, like many other terms used in the AJA, is a legal term in need of interpretation. It is up to the judge to decide whether the evidence provided at the preliminary examination is sufficient for an execution of a pre-trial custodial detention. Because of the intrusive nature of detention, a requirement has been inserted in the AJA § 764(4) stating that the ruling of the court must be followed by an explanation of the premises of the ruling.72 The requirement of the degree of suspicion is stronger (more significant) than the degree of suspicion required for pressing charges against a suspect.73 And it is noted in the legal debate that it has to be more likely than not that the suspect is guilty.74 Therefore it is also required that there exists objective evidence supporting the suspicion against the suspect.75 The second type of pre-trial custodial detention is the so-called ‘detention on the basis of the enforcement of law’ (retshåndhævelsesarrest). This type of detention does not serve a purpose other than to meet the sense of justice (retsfølelse) in the society.76 The degree of suspicion required for this type of detention is ‘particularly confirmed suspicion’ (særlig bestyrket mistanke), which can be considered the highest level of suspicion in the pretrial phase.77 This detention can be seen/critised as a special form of anticipated punishment.78 As for the regular form of pre-trial custodial detention, it is required that the criminal offence can entail a prison sentence of at least 18 months, AJA § 762(1). However, it is not required that the actual sentence is likely to result in a prison sentence of 18 months.79 The level of punishment refers to the ‘maximum penalty’ of the law (strafferammer). If the crime in question can be (not necessarily ‘will be’) punished with 18 months or more, then the requirement of sufficient gravity of the offence regarding custodial detention is met.80 It must be noted that the rule of proportionality applies, and if it is apparent that the actual sentence will result in a fine or a conditional prison sentence (betinget fængsel), the principles of proportionality must be addressed and considered.81 As for the ‘detention on the basis of the enforcement of law’, the law regulates two types of offence. The first type is particularly related to the possible length of prison sentence. The required gravity for the use of this form of custodial detention is that the criminal offence in question may be punished with six years of imprisonment or more. Again, it is not required that the actual outcome of the criminal trial in the specific case results in a verdict of six years of imprisonment or more.82 Alternatively, the rule of ‘detention on the basis of the enforcement of law’ has a second requirement: this form of detention can also be applied in connection with special types of criminal offences. These are for instance child molestation, simple and severe bodily injury, and violence against state officials (tjenestemænd). For the entire list of offences see AJA 72 73 74 75 76 77 78 79 80 81 82

Smith et al (n 4) 536–37. Anklagemyndighedens Årsberetning 1978, 35. Smith et al (n 4) 538. Hans Gammeltoft-Hansen, Varetægtsfængsling (Copenhagen, Juristforbundets, 1976) 55. Smith et al (n 4) 552. See Hauschildt v Denmark App 10486/83 (ECtHR, 24 May 1989). Smith et al (n 4) 553. Ibid 538. Ibid 538–39. Ibid 539. AJA § 762(2)(i).

70 Denmark § 762(2)(ii). For these types of offence it is only required that the expected outcome of the trial is a prison sentence of at least 60 days.83 As for the regular form of pre-trial detention, one of the above-mentioned three reasons for detention must be fulfilled before the measure can be executed in accumulation with the aforementioned gravity requirement. As mentioned above, if there is reason to believe that the suspect avoids the authorities or escapes from prosecution, this is one of the reasons to justify pre-trial detention. In the assessment of the escape risk, all of the suspect’s personal circumstances are taken into consideration: economic, personal, family affairs and so forth. If these circumstances are stable and normal, this would typically favour refraining from resort to detention. On the other hand, previous behaviour in former criminal cases would substantiate the use of custodial detention.84 The risk of suicide would also constitute a ‘risk of avoidance’ (unddragelsesrisiko).85 Furthermore, the risk of recurrence or a continuation of the criminal behaviour constitutes a further condition that authorises detention. This legal basis is often used if the suspect has a criminal record.86 The interpretational sources of law (forarbejder), supported by case law, suggest the use of this law basis in cases where the suspect has committed crimes during probation (prøveløsladelse), or if the suspect has committed other crimes during the case in progress.87 This legal basis would also apply in cases where the suspect has been previously convicted of similar crimes.88 Finally, the suspect can be held in pre-trial detention if there is a suspicion that he/she might try to interfere with the investigation. This would typically be the case when an accomplice is still at large. It must be noted that the basis of the custodial detention also includes other cases where the suspect is implicated—for instance, if there were sufficient grounds to believe that the suspect might alert criminal masterminds in organised gangs and crime schemes.89 As for ‘detention on the basis of the enforcement of law’, none of these three requirements need be fulfilled. The specific requirements mentioned previously are the sole reasons justifying this form of pre-trial detention. The suspect can be held in solitary confinement if there is a specific reason to believe that ordinary custodial detention is not sufficient, and if the investigation demands it (see AJA § 770a-70e). Denmark has previously been criticised for extensive use of isolation, which resulted in several revisions of the law. The use of isolation today is more limited, and the rules regarding it are more elaborated, however, some criticism still remains.90 There is a time limit of eight weeks for isolation. The law states that the operational time frames span from 14 days to the above-mentioned eight weeks. This form of detention will in general only be used if accomplices are still at large, and if normal custodial detention would not provide a sufficient safeguard in relation to the investigation.91

83 84 85 86 87 88 89 90 91

Smith et al (n 4) 552–62. Ibid 541–42; Case U 1978 908 H; Case U 2001 2444 Ø; Case U 2006 2187 Ø. Betænkning 728/1974, 26. Smith et al (n 4) 543. Betænkning 728/1974, 26; Case U 1983 501 H; Case U 1997 184 H. Case U 1983 501 H. Smith et al (n 4) 551–52. Langsted, Garde, Greve (n 1) 174f. Smith et al (n 4) 566–79.

Investigation Measures 71 The prosecution authorities (anklagemyndigheden) request a court order from the court to execute the measure. De facto the Police execute the measure, but they are not allowed to do so before a court order has been issued.92 The prosecution service applies to the court for a court order. This is done in writing. If the requirements of the custodial detention are met, the police will be granted authority to execute the measure.93 Because of the intrusive nature of custodial detention, a requirement has been inserted in the AJA§ 764(4) stating that the ruling of the court must be followed by an explanation of the premises of the ruling.94 The court order has a time limit of four weeks, after which the court order must be renewed. If the judge finds that the requirements of the custodial detention are still met, the court order will be renewed. This procedure will continue until the case has been closed.95 For further judicial review the court order can be appealed to the high courts (landsretten), cf the Danish Constitution § 71(4) and AJA § 969.96 The only exception to the rules of renewal is if the suspect accepts the incarceration without court proceeding. As a secondary form of review, the Regional Public Prosecutor inspects the long-term custodial detentions—detentions for longer than three months.97 The measure is recorded in writing in the court records (dombog) and it will also be noted in the police report and IT system. AJA § 764(3) states that a formal suspect (sigtet) has the right to be assisted by a defence lawyer. This is basic to the remedy of the defence lawyer. The presence of the appointed or chosen defence lawyer is mandatory in the preliminary examination (grundlovsforhøret) where the decision on the permission of pre-trial custodial detention is made.98 If a formal suspect has been in custody for more then 24 hours, or the question of pretrial detention is considered in a preliminary examination, a public defence lawyer has to be appointed (see below section E.3.).

6. Interception of Postal Communications The Danish legal system distinguishes between the ‘opening of letters’ (brevåbning, AJA § 780(1), no 5) and the ‘stopping of mail’ (brevstandsning, AJA § 780(1), no 6). The interception of postal communications may be initiated where there are ‘specific reasons’ (bestemte grunde) to presume that the relevant channel of communication is a means by which the suspect is transmitting and/or receiving information, AJA § 781(1), no 1. Furthermore, the interception of postal communication is permitted if there are ‘strong grounds for suspecting’ (særlig bestyrket mistanke) that the postal communication contains items that are subject to confiscation, AJA § 781(4).99

92 93 94 95 96 97 98 99

AJA § 764 (1). See also ibid 18 a–c. Smith et al (n 4) 536–37. Ibid 583–90. Ibid 590. Rigsadvokatens meddelelse 6/2008. Smith et al (n 4) 275–77. Ibid 437f.

72 Denmark In general, this measure is only permitted for grave crimes where the criminal offence may entail a prison sentence of at least six years AJA § 781(1), no 3. However, this does not mean that the crime in question is expected to be punished with at least six years’ imprisonment. Certain specific crimes are exempt from this general rule; for example crimes against the state or severe forms of threat or blackmail. See full list in AJA § 781(1), no 3 and (2–4).100 Interception of postal communication may not be conducted if the communication concerns individuals who are privileged by the rules of ‘witness exclusion’ (vidneudelukkelse), according to AJA § 170(1), eg defence lawyers and clerics. Concerning other privileged professions, for example physicians, the court may open the ‘witness exclusion’, AJA § 170(2), with the result that the postal communications of those professions may be intercepted under the measure of interception with postal communication.101 In connection with interception of postal communications, the situation always concerns at least two people, one of whom might not be a suspect in the case. Therefore, AJA § 782(1) emphasises the principle of proportionality. Interception of postal communication is a ‘clandestine’ measure, meaning the suspect and the individual(s) that he/she is communicating with are not aware of the measure while it is being conducted. The sender or recipient of the postal communication will be informed after the measure is concluded, AJA § 788(2), no 3. The interests of the individual concerned are therefore protected by a lawyer appointed by the court, AJA § 784. This lawyer is not the defence lawyer and he/she is specifically appointed in connection with the measure.102 The lawyer has access to the police material and can challenge the police’s lines of enquiry. The lawyer can also appeal if the court allows the measure.103 Postal service providers are obliged to assist the police in facilitating the measure, AJA § 786(1). The measure must be applied for as brief a period as possible, and the court may only permit the measure to run for a maximum duration of four weeks at a time, AJA § 783(4). The prosecution service requests a court order to execute the measure. In general, it is de facto the police who execute the court order. The order by the court is written and names the postal items concerned. In periculum in mora situations (øjemed), the measure may be initiated without a court order. The case must subsequently be presented to the court within 24 hours, AJA § 783(4).

7. Interception of the Contents and Monitoring of Telecommunication In the Danish legal system the interception and monitoring of telecommunication are both regulated as what can be translated as ‘interceptions of individuals’ right to communication secrecy’ (indgreb i meddelseshemmeligheden).

100 101 102 103

Langsted, Garde, Greve (n 1) 154. AJA § 782 (2); see Smith et al (n 4) 445. Langsted, Garde, Greve (n 1) 156. Smith et al (n 4) 439ff, 442f.

Investigation Measures 73 Furthermore, the acoustic surveillance of private premises (see below) falls under this measure. Concerning telecommunication and acoustic surveillance, the following measures are regulated in AJA § 780: — — — —

the tapping of telephone communication or the like by means of a listening device, AJA § 780(1), no 1; surveillance of other communication/audio by means of a listening device, AJA § 780(1), no 2; requiring telephone companies etc, to provide information on ‘communication traffic’ (also without the consent of the individual concerned), AJA § 780(1), no 3; ‘extended’ interception—requiring telephone companies to provide information concerning which telephones (or other means of communication) have been connected to other telephones (or other means of communication) within a given area, AJA § 780(1), no 4.104

All of these measures are jointly dealt with in the following: —

—

—

— —

—

104 105 106 107

The measures in connection with telecommunication and acoustic surveillance require that there are ‘specific reasons’ (bestemte grunde) to presume that the relevant channel of communication is a means by which the suspect is transmitting and/ or receiving information, AJA § 781(1), no 1. Furthermore, it is required that the measure will be of important relevance (afgørende betydning) to the investigation, AJA § 781(1) no 2.105 In general, this measure is only permitted for grave criminal offence which may entail a prison sentence of at least six years, AJA § 781(1) no 3. However, this does not mean that the crime in question is expected to be punished with at least six years’ imprisonment. Certain specific crimes are exempt from this general rule; for example crimes against the state, or severe forms of threats or blackmail. See full list in AJA § 781(1), nos 3 and (2–4).106 Acoustic surveillance, AJA § 780(1) no 2 and ‘extended’ interception, which requires information from telecommunication companies, AJA § 780(1) no 4, may only be applied when the suspicion concerns a crime which involves/has involved danger to human life or physical wellbeing, AJA § 781(5). AJA § 782(1) highlights the principle of proportionality in connection with all forms of interception of communication by prohibiting disproportionate measures. Tapping of telephone communication and acoustic surveillance may not be conducted if the communication concerns individuals who are privileged by the rules of ‘witness exclusion’ (vidneudelukkelse) according to AJA § 170(1) without exception (defence lawyers and clerics).107 The measure must only be applied for as brief a period as possible and the court may only permit the measure for a maximum duration of four weeks at a time, AJA § 783(4).

Langsted, Garde, Greve (n 1) 153. Smith et al (n 4) 436ff. Langsted, Garde, Greve (n 1) 154. AJA § 782(2); see Smith et al (n 4) 445.

74 Denmark —

—

—

—

—

The prosecution service requests a court order from the court to execute the measure. In general, it is de facto the Police who execute the court order. If necessary, assisted by the telecommunication provider. The order by the court is written and names the relevant places/phone numbers, time frame, etc. The measures concerning monitoring of communication etc, will often be ‘clandestine’, meaning that the suspect and the individual(s) he/she is communicating with are not aware of the measure while it is being conducted. The individuals concerned will be informed after the measure is concluded, AJA § 788(2) no 3. Telecommunication providers are obliged to assist the Police in facilitating the relevant measures, AJA § 786(1). The telecommunication providers are also obliged to register and store traffic data for one year, AJA § 786(4). As mentioned above, the measures will often be ‘clandestine measures’, therefore the individuals involved in the communication will not be informed of the proceedings and the court order while the measure is still on. The rules regarding appointment of lawyers are the same as for interception of postal communication.108 In periculum in mora situations, the measure may be initiated without a court order. The case must subsequently be presented to the court within 24 hours, AJA § 783(4).

8. Surveillance in Public and Private Spheres In the Danish context, the question of acoustic and visual surveillance, in public or private spheres, concerns different legal issues/situations which must be dealt with separately. Acoustic surveillance in the private sphere is dealt with above. Visual surveillance in housing or other buildings (bolig eller andre husrum) by means of optical devices is regulated in AJA § 791a(3) and as a measure, it is viewed as equally intrusive as acoustic surveillance. Consequently, the system concerning this measure mirrors the system for acoustic surveillance, AJA § 791a(8).109 There is no regulation regarding any forms of public surveillance. The police are free to make video recordings in public (open) places, and are not required to acquire a court order.110 Acoustic surveillance in the public sphere as such seems not to be used in Denmark. If the police want to conduct acoustic surveillance of a formal suspect, eg by tapping his phone, this is seen as surveillance in the private sphere. Visual observation and photography within enclosed areas outside buildings (ikke frit tilgængelig sted (observation)) are regulated in AJA § 791a. The following remarks only concern this measure. The measure of observation in enclosed areas does not require a specific degree of suspicion. The only requirement is that the measure will be of important relevance (afgørende betydning) to the investigation, AJA § 791a(1) no 1.111 If the observation involves taking photographs and observing with binoculars, the measure can be applied where the criminal offence in question may entail a prison sentence, AJA § 791a(1) no 2. If the observation involves the use of remote-controlled or automatic

108 109 110 111

Smith et al (n 4) 439ff, 442f. Ibid 458. Ibid 457 and 460. Ibid 458.

Investigation Measures 75 cameras, the criminal offence has to be punishable with 18 months’ imprisonment or more, AJA § 791a(2). For cases concerning observation in enclosed areas with remote-controlled or automatic cameras, communications/meetings with certain persons, defence lawyers and clerics, are privileged, AJA § 791a(8) referring to AJA § 782(2). The measure must be applied for as brief a period as possible and the court may only permit the measure for a maximum duration of four weeks at a time, AJA § 783(4). Observation with binoculars and the manual taking of photographs are usually conducted by the police, since this measure does not demand a court order Observation with remote controlled or automatic video cameras/photo cameras requires a court order, AJA § 791a(8), AJA § 783. The prosecution service applies for a court order. The order by the court is written and names the place concerned and the time frame. Observations with cameras may be initiated without a court order in periculum in mora situations. The case must subsequently be presented to the court within 24 hours, AJA § 791a(8), AJA §783(4). In cases where a court order is required, the court will appoint a lawyer to represent the person concerned under the court proceedings, AJA 791a(8), AJA § 785.

9. Tracking and Tracing of Objects and Persons Tracking and tracing of objects and persons are not specifically regulated in the Danish legal system. Often the tracking/tracing of persons will be executed through the ‘extended’ interception of information, requiring telephone companies to provide information concerning which telephones (or other means of communication) have been connected to other telephones (or other means of communication), see above. The placing of tracking devices on objects is not seen as an investigating measure that requires specific justification and regulation by the law. In the case U 1996.1496 V, the court ruled that the placing of a tracking device outside a car is legal and not an ‘interception of the communication secrecy’ requiring a court order. This point of view was later confirmed by the Danish Supreme Court (Højsteret).112 In a later case the question at hand was whether the police were allowed to place a tracking device inside a car. The case went through the Danish legal system on three separate occasions, each occasion resulting in a different view on the question.113 The matter was finally settled by the Danish Supreme Court (U 2000.2476 H), which ruled that this activity was part of the concept of observation, more specifically an observation according to AJA § 791a(2).

10. Data Mining and Profiling Data mining and profiling (profilanalyse114) are not regulated in the Danish legal system. The process of extracting patterns from data and forensic profiling is not seen as an investigative step which needs to be regulated or supervised by the courts. 112

See case U 2000 2476 H; Smith et al (n 4) 431f. See an outline in Smith et al (n 4) 431. 114 On the use of profiling in Denmark, see Henricson, Politiret, 4th edn (Copenhagen, Jurist- og Økonomforbundets, 2007) 258ff. 113

76 Denmark However, since 2001, the Danish legal system has permitted the use of so-called ‘sniffer programmes’, with the aim of monitoring the content and use of specific computers (dataaflæsning). This measure is regulated in AJA § 791b and the system concerning this measure follows the pattern of other ‘interceptions of communication secrecy’, outlined above.

11. Access to Relevant Premises (‘Crime Scene’) From the Danish perspective, the issue of ‘access to the crime scene’ is not considered problematic. The rules regarding the searches of premises are outlined below in section B12. The police have the right to investigate on sight (på øjemed) if suspicious behaviour is discovered.115 In general, when the police investigate a crime scene, this is not considered a search of a premises (ransagning). Therefore, there is no law regulating this situation. If the non-suspect or the injured party (forurettede) is not present at the crime scene, the police have the right to conduct a search, as long as the person is subsequently notified as quickly as possible.116

12. Search and Seizure For a better overview this section is divided into three parts: search of premises, bodily search, and seizure. (a) Searches of Premises As for searches of premises there is a distinction between searches within houses and locked places (so-called ‘category 1 searches’), and searches of premises outside a house, including garages, gardens and unlocked cars,117 etc (so-called ‘category 2 searches’).118 If a location is open to public access, the measure is not qualified as a ‘search’ in the sense of Danish procedural law (the essence of AJA § 793). As to the degree of suspicion that is required, there must be reasonable grounds (rimelig grund) for suspecting the person of an offence. This degree of suspicion must be the same level as that required for making an arrest.119 The necessary level of suspicion is the same for categories 1 and 2. In special situations, the court may permit a car to be searched for weapons if the suspect is associated with a group that is involved in an ongoing ‘gang war’,120 even if the level of suspicion is insufficient when compared to the regulations of AJA § 794.121 Based on this, the assessment of the degree of suspicion is not to be interpreted too strictly.

115 116 117 118 119 120 121

The rules of searching of premises can be used as a guideline, see Smith et al (n 4) 466–67. AJA § 796(6). Case U 1997 1572 Ø. Toftegaard Nielsen (n 9) 88. Ibid 90. Case U 1996 995 Ø. Smith et al (n 4) 464.

Investigation Measures 77 As for category 1 searches, it is required that the offence in question may entail a prison sentence. As an alternative to the level of gravity, category 1 searches can be implemented if there are specific reasons (bestemte grunde) to believe that a search will result in the discovery of evidence that can be used in the criminal investigation or the discovery of objects that can be seized.122 As for category 2 searches, there are no requirements regarding the type or gravity of the offence, because this type of search is seen as less intrusive than category 1 searches.123 There is no clear regulation as for time limits or duration of the search. The rule of proportionality and the requirement of the search being performed is for it to be as little intrusive as possible.124 If letters are from persons that are excluded from the obligation to be a witness (vidneudelukkede), these letters cannot be opened or seized. The people in question are those mentioned in AJA § 170(1); concerning defence lawyers and clerics, there is no exception to this exclusion. If the police are uncertain as to whether or not material may be included within this restriction, a temporary seizure can be performed, after which the court has the authority to decide if the material must be excluded as evidence.125 These types of evidence are often encompassed by the regulations governing the secrecy of information (meddelelseshemmeligheden). For both category 1 and 2 searches, the police execute the measure. As for category 1 searches, an authorisation from the court is required, AJA § 796(2). The court order is in written form, and it must contain reasoning for the uses of this measure, AJA § 796(2). There are two exceptions to the main rule. The first exception concerns the ‘periculum in mora’ situation, where the police assess that a search is required/necessary on the spot (på øjemed). The suspect can subsequently request a court judgment regarding the legality of the search.126 The second exception occurs where the suspect consents to the search, so that a court order is not required, AJA § 796(5).127 The court order may be appealed, but is a rare event because such court orders are obtained without the knowledge of the suspect. As for category 2 searches, a court order is not required, as the police have the competence to make the decision and to conduct the search.128 The measure is documented in the police report. The search is often documented with complementary pictures of the premises, and anything that that may be seized is photographed. If a court order was required, the authorisation of the search is written into the court documents (retsbogen). As a primary rule, there are no prior notification requirements. The reasoning behind this is the assumption that if the suspect or his defence lawyer were informed of the measure before it is implemented, there would be a significant risk that the suspect will dispose of relevant evidence. In most cases, searches are conducted when the suspect/non-suspect who is exposed to the measure is present. Here the suspect/non-suspect who is exposed to the search, will 122 123 124 125 126 127 128

Ibid 464–65. Toftegaard Nielsen (n 8) 90–92. Smith et al (n 4) 467–68. Ibid 470. Ibid 466. Ibid 467. Ibid 466.

78 Denmark be notified on sight. This is the normal procedure, AJA § 798(2). If no one is present, the person who is exposed to the measure is subsequently notified as quickly as possible, AJA § 798(3). However, an exception to the above concerns the option of ‘clandestine searches’ (hemmelig ransagning), AJA § 799. The court can issue a ‘clandestine’ search warrant that allows the police to search premises if it is of crucial importance (afgørende betydning) to the investigation, AJA § 799(1).129 This measure can also—like ordinary category 1 and 2 searches—be conducted towards non-suspects.130 The defence lawyer will learn about the details, hence the documentation of the measure. As mentioned above, the defence lawyer has access to all of the relevant material. The person exposed to an ‘open search’ has the right to summon a witness, who will observe the search. Furthermore, if the person who is exposed to the measure is not present, a witness must be summoned, if possible.131 If this is not possible, the police can execute the search without a witness. If the suspect (or the non-suspect) has not given his consent, or the search has to be conducted on sight/spot (på øjemed), the suspect can ask the court for a judicial review, AJA § 796(3). The court decision can be appealed to the High Court (landsretten). (b) Bodily Searches (visitation) The Danish system distinguishes between two forms of ‘inspection of the body’. The first form is the ‘viewing of the body’ (legemsbesigtigelse) naked or clothed (eg taking photos and fingerprints, gathering impressions of the body and the search of the clothes worn). The second for is the ‘closer inspection of the body’ (legemsundersøgelse, eg blood tests, X-raying etc).132 For the ‘viewing of the body’ there must be reasonable grounds (rimelig grund) for suspecting the person of an offence, AJA § 792a(1). This degree of suspicion is the same level as the degree of suspicion required for making an arrest.133 In connection with the ‘closer inspection of the body’, there must be a reasonable suspicion (begrundet mistanke) that the suspect has committed a crime, AJA § 792a(2). There is no necessary threshold of gravity of offence in connection with ‘inspection of the body’. This means that a ‘viewing of the body’ can be conducted if the requirement concerning the level of suspicion is met. If a ‘closer inspection of the body’ is to be conducted, however, the offence must entail a prison sentence of at least 18 months, AJA § 792(2). However, it is not required that the actual sentence will result in 18 months’ imprisonment.134 It is required that the ‘viewing of the body’ measure is of significant (væsentlig) importance to the investigation, and it is required that the ‘closer inspection of the body’ measure is of crucial importance (afgørende betydning) to the investigation.135 There is no written regulation regarding time limits, but the principle of proportionality applies. Normally, this 129 130 131 132 133 134 135

Ibid 474. Ibid 474. AJA § 798(2) and (3). Langsted, Garde, Greve (n 1) 158. Toftegaard Nielsen (n 9) 90; Smith et al (n 4) 499. Smith et al (n 4) 500 and 538. AJA § 792a(1) and (2); Smith et al (n 4) 499–500.

Investigation Measures 79 matter is not considered problematic. Only when the ‘inspection of the body’ is conducted on a person who is not arrested, does the question of whether or not the suspect is in fact arrested arise. However, this is considered a different matter to the actual performance of the measure. The police have the authority to conduct a body search of non-consenting persons. A court order is required for a ‘closer inspection of the body’, unless the measure, for the sake of the investigation, needs to be performed on the spot (på øjemed).136 In general the police execute the measure, but some specific measures, for example the taking of blood samples or X-rays, are performed by professional medical staff. As mentioned above, ‘closer inspection of the body’ requires a court order, AJA § 792c(2). The court order is in written form and contains reasoning for the justification of the measure. The court’s decision can be appealed. If the exposed person gives his consent, no court order is required,137 and the competence to authorise the conduct of the measure lies with the Police. Finally, it should be noted that a ‘closer inspection of the body’ can be executed by the police without a court order, if the measure needs to be executed immediately, for example if DNA evidence might otherwise be lost. If the measure is executed without a court order, it must be submitted before the court within 24 hours after the execution of the measure.138 Again, this court review is not necessary if the exposed person gives consent. If the measure has been submitted to a court hearing, and if the suspect requires so, AJA § 792c(4), the defence lawyer shall be present.139 (c) Seizure The main aim of any search of premises is to obtain evidence. If the police find relevant material/objects during the search, the material/object is subsequently assessed to see if it is material that may be seized in accordance with AJA, chapter 74. Danish legislation distinguishes between seizure of objects in the possession of/owned by the suspect (AJA § 802) and the seizure of objects in the possession of a third person (AJA § 803). The seizure of objects/material or of financial assets may also be conducted for reasons other than the securing of evidence. AJA § 801(1) no 1; AJA § 801(1) states that the seizure may be conducted to: — — —

136 137 138 139 140

ensure the public’s financial claims in connection with the crime (cost for the criminal proceedings or the payment of a fine) or later confiscation; ensure the victim’s claims in connection with the crime (concerning stolen objects or claims concerning financial compensation); freeze the suspect’s financial assets in whole or part if the suspect has fled from the criminal proceedings.140

Smith et al (n 4) 500–02. Ibid 501. Ibid 501; AJA § 792 c (3). Smith et al (n 4) 501. Ibid 501.

80 Denmark AJA § 802 distinguishes between objects in the suspect’s possession (AJA § 802(1)) and objects owned by the suspect (AJA § 802(2)). In either situation there must be reasonable grounds (rimelig grund) for suspecting the person of having committed an offence. A suspect’s financial assets (formue) may be seized in whole or in part in a situation where the suspect has fled from the criminal proceedings and an indictment has been issued (tiltale, see above), AJA § 802(3). If the seizure concerns a third person (a person who is not a suspect), the seizure may be executed if there is reason to believe (grund til at antage) that the material can be used as evidence, or if the material was taken from the owner during a crime and must be returned to the owner.141 In the case of objects in the possession of the suspect and objects owned by the suspect, the measure may only be initiated if the investigation concerns a crime that can be prosecuted by the public. This also applies to the seizure of objects in the possession of third persons (AJA §§ 802 and 803). If the seizure concerns the financial assets of a suspect who has fled from the criminal proceedings, it is a requirement that the offence in question must entail a potential sentence of up to at least 18 months (AJA § 802(3) no 1). There is no clear regulation regarding time limits or the duration of the seizure, other than that the measure has to be ended if the case is closed, AJA § 807d(1).142 The general principle of proportionality has to be obeyed and this is specifically highlighted in AJA § 805(1) and (2).143 Certain objects, letters or notes, from persons who are excluded from the obligation to be a witness (vidneudelukkede) cannot be seized. The people in question are those named in AJA § 170(1). In regard to defence lawyers and clerics, there is no exception to this exclusion. Furthermore, certain material from people who are covered by the rules of witness exemption (vidnefritagelse, see section B.3.) is excluded from the seizure. See AJA § 802(4) and § 803(2). As stated previously, a seizure requires a court order, AJA § 806(2). The court order is in written form and contains the reasoning for the justification of the measure. Before the court rules on the question of seizure, the individual concerned has to be given the opportunity to comment on the police request, AJA § 806(2). The court’s decision may be appealed against. A court order is not required if the individual concerned gives his consent to the seizure in written form, AJA § 806(7) and the police have the competence and authority to carry out the seizure. In ‘periculum in mora’ situations, where the police assess that a seizure is immediately required/necessary, the individual concerned can subsequently request a court judgment regarding the legality of the search, AJA § 806(3). A suspect’s financial assets in whole or part may only be seized in situations where the suspect has fled the criminal proceedings and may only be conducted after a court order, AJA § 806(4). 141 142 143

Ibid 483f. Ibid 488. Ibid 467–68.

Investigation Measures 81 13. On-line Search of Computers The Danish legal system has permitted the use of on-line searching (dataaflæsning) as an investigative method since 2002. Prior to this, the police could get information on traffic between computers under the measure of ‘interception into the communication secrecy’ and in connection with search and seizure. On-line searching in this context is the ‘real time’ gathering of the content and traffic of a computer by use of ‘sniffing programmes’.144 The measure is regulated by AJA § 791b. The measure requires ‘specific reasons’ (bestemte grunde) to presume that the information in the system/computer has been/will be used to commit serious crimes, AJA § 791b(1), no 1 (concerning the serious crimes in question see below under b)). Furthermore, it is a requirement that the measure will have important relevance (afgørende betydning) to the investigation, AJA § 791b(1) no 2.145 This measure is only permitted in connection with grave crimes, AJA § 791b(1), no 3, or with criminal offences that can entail a prison sentence of at least six years. However, this does not mean that the specific crime is expected to be punished with at least six years. The measure is also permitted for crimes against the state, specified in chapters 12 and 13 of the criminal code. AJA § 791b(2) explicitly highlights the principle of proportionality in connection with on-line searching, prohibiting disproportionate measures. An on-line search may not be conducted if the communication concerns individuals who are privileged by the rules of ‘witness exclusion’ (vidneudelukkelse), according to AJA § 170(1) without exception (defence lawyers and clerics), AJA § 791b(4), AJA § 782(2). The measure must be applied for as brief a period as possible, and the court may only allow the measure to run for a maximum of four weeks at a time, AJA §§ 791b(3), 783(4). The measure in question requires a court order. The prosecution service applies for a court order. The order by the court is written and names the computer concerned and the time frame, AJA § 791b(3). As mentioned above, the measure is a ‘clandestine measure’. Therefore the individual who owns/has access to the computer will not be informed of the proceedings and the court order so long as the measure is ongoing. The interests of the individual concerned are therefore protected by a lawyer appointed by the court, AJA § 791b(4), AJA § 784. Again, this lawyer is not the defence lawyer, and is specifically appointed in connection with the measure. The lawyer has access to the police’s material and can challenge the police’s line of inquiry. The lawyer can also appeal if the court allows the measure.146 The person/company who has the main access to the computer will usually be informed after the measure is concluded, AJA §§ 791b, 788(1), no 3 and 4. In periculum in mora situations concerning telecommunication the measure is also accepted, AJA §§ 791b(3), 783(4). The case must subsequently be presented to the court within 24 hours.

144 145 146

Ibid 456. Ibid 436ff. Smith et al (n 4) 456f.

82 Denmark 14. Monitoring of Bank Transactions and Production Orders The Danish legal system does not allow the monitoring of bank transactions as a measure in a criminal investigation. If the investigating authorities want to scrutinise the suspect’s bank account, they must use the measure of ‘order of edition’. Persons or organisation which are not in themselves part of the investigation but have seizable items in their possession, may be obliged to produce them for inspection or to hand them over to the investigative authorities under an ‘edition order’ (edition), AJA § 804(1). A typical situation for this measure is a request to scrutinise the bank account of a suspect.147 An ‘edition order’ is initiated when the police have reason to believe (grund til at antage) that the object can be used as evidence, can be confiscated or was taken from the owner during a crime and which must be returned to the owner. The measure of ‘edition’ is closely linked to the above measure of seizure of objects in the possession of third persons and the regulation of both measures is closely linked. Therefore, see the above concerning the main aspects of an ‘edition order’.

15. Invoking the Assistance of Experts to Examine Clues etc. In the Danish legal system the police/prosecution service may involve experts in the investigation without restriction. This is not seen as a measure demanding legal regulation.

16. Infiltration The Danish legal system distinguishes in the context of infiltration between undercover agents (agenter) and informers (meddeler).148 Furthermore, the question of using a person as a ‘potential victim’ to lure and arrest the perpetrator is seen as a potential form of infiltration. However, this is not seen as a measure that requires regulation with a specific procedure. The distinction between ‘undercover agents’ and informers can be difficult in practice. However, it is an important distinction, as informer activity is not regulated and therefore does not require a specific procedure. The following concerns therefore only the use of ‘undercover agents’. Agent activity according to AJA § 754a is defined as the police offering assistance to an offence or taking steps with the view of inciting a person to commit/ continue a crime.149 This means that such an agent’s activities may often involve behaviour which could be punishable as ‘assistance to a crime’ (medvirken). In general, undercover agents are always police officers (AJA § 754b(1)). However, under certain circumstances private individuals may be used as undercover agents if their contribution to the crime is of minor relevance, AJA § 754b(2). Agent activity may be used in an investigation if there is a ‘reasonable suspicion’ (begrundet mistanke) that a specific crime is about be committed, AJA § 754a(1) no 1, and if the measure is expected to be of ‘important relevance’ (afgørende betydning) for the 147 148 149

Langsted, Garde, Greve (n 1) 167. See Langsted, Garde, Greve (n 1) 151. Ibid 149.

Prosecution Measures 83 investigation, AJA § 754a(1) no 2. The measure may be used if the crime investigated can entail a prison sentence of at least six years, AJA § 754a(1) no 3. Agent activity requires a court order, AJA § 754c(1). The investigation authorities apply for the court order. The decision by the court is written and includes the facts and the reasoning of the decision, see AJA § 754c(2). The court can at any time reconsider the decision, AJA § 745c(2). In ‘periculum in mora’ situations, where the police assess that the agent activity has to be initiated without delay for it to have an effect, the agent activity may be started without a court order. The police must subsequently apply for a court order within 24 hours, AJA § 754c(3). Notification is not required when the measure is initiated. If the investigation results in an indictment (tiltale), the defence lawyer of the accused must be informed. In certain situations, for example where state security is concerned, the defence lawyer may be prohibited from providing the information to third parties/individuals, AJA § 754d. Agent activity may not result in an aggravation or increase of the crime, AJA § 754b(1). This means for example, that the agent is prohibited from encouraging a suspect to sell more drugs then he/she intended to do.150 The agent may only influence aspects of the crime which do not aggravate or increase the crime, for example, concerning the place of delivery in connection with a drug deal.

17. Controlled Deliveries The question of whether controlled deliveries are part of a cover agent’s activities regulated by the AJA has been discussed. However, since 2003 this question is specifically dealt with in AJA § 754a(2), which clarifies that controlled deliveries are not part of a cover agent’s activities, so as long as the police does not influence the main circumstances of the crime. This means that controlled deliveries as such are not seen as a measure requiring regulation and a specific procedure.151

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution As mentioned above, a criminal investigation is initiated on the basis of a report by a citizen or by own initiative. An investigation may be initiated where there is a ‘reasonable presumption’ (rimelig formodning), AJA § 742. If the evidence gathered under the investigation indicates that a trial will lead to a conviction, the prosecutor initiates the prosecution. The prosecuting authorities in Denmark are the only official bodies permitted to institute criminal proceedings and this monopoly is absolute. A few minor offences defined by the law, such as violations of privacy, are subjected to private proceedings (privat påtale). These types of offences are dealt with in accordance with the regulations governing civil cases and are prosecuted by the victim himself/herself, AJA § 989.

150 151

Ibid 149. Toftegaard Nielsen (n 8) 79f.

84 Denmark At the end of the investigation there are five possible outcomes; the first one concerns the situation where no one was charged as a formal suspect, while the others concern situations were a formal suspect exists: 1. If the investigation does not result in finding a formal suspect it will be closed, in accordance with the rules in AJA § 749. 2. If a person is a formal suspect.152 According to AJA § 721, there are three reasons to end the case (påtaleopgivelse): —

First, a case must be dropped if the accusations are unfounded (grundløs). This would typically be the case if the investigation has resulted in positive evidence indicating that the suspect is not guilty.153

Secondly, the case may be ended if the authorities find that any further investigations or starting criminal proceedings will not result in a conviction, AJA § 721(1) no 2. This is the most common reason to end the case. —

Finally, a case may be ended if the completion of the criminal investigation and court proceedings will result in a disproportionate use of resources compared to the offence in question.154 This rule is often used in cases concerning comprehensive financial criminal cases, where it for instance is necessary to reconstruct bookkeeping, etc, which often require a large amount of resources. The authorities have the right to ‘trim’ cases and deselect some offences, if the cost and resources that would be used are disproportionate in relation to the seriousness of the crime and the expected outcome of the court proceedings. There are some guidelines concerning the ending of cases because of resources.155 The Director of Public Prosecution (Rigsadvokaten) has published guidelines that form the basis of how to use this law.156

3. Withdrawal of charges, eg ending the case for reasons of opportunity (see below). 4. A shortened procedure. 5. Prosecution. There is no remedy against the decision to prosecute—it is then up to the courts to decide whether the accused is guilty or not of the charges on the indictment. A decision not to prosecute under the principle of opportunity (see below) may be appealed to the superior prosecutor, AJA § 724(1). As indicated above, where cases are dropped, two sets of rules apply. The use of these rules depends on whether the investigation has reached a stage where a person has (or has not) formally been given the status of a formal suspect. (a) Ending a Case Without any Formal Suspect If the investigation does not result in finding a formal suspect it will be closed, in accordance with the rules in AJA § 749. This means that the prosecution service can end a 152

§ 721 AJA; § 749(2) AJA. Smith et al (n 4) 157; § 721(1) no 1 AJA. 154 Smith et al (n 4) 158. 155 Betænkning 1066/1986, 190. 156 Anklagemyndighedens Årsberetning 1987, 124; Anklagemyndighedens Årsberetning 1989, 110; Anklagemyndighedens Årsberetning 1993, 155. 153

Prosecution Measures 85 case on the basis of a lack of evidence or because the investigation has exhausted all other possibilities. If the initiation of an investigation is based on a citizens’ report and this report obviously does not serve as an adequate basis to initiate an investigation, the report shall be declined.157 This is for example the case where the report concerns incidents which are not punishable offences. A case that was ended in accordance with the rules of AJA § 749 can be reopened. The case may be reopened if there is new information or evidence available, which the Police find relevant to the case. Reopening a case that was closed in accordance with AJA § 749 is unproblematic because no specific person was named as a suspect at the time of the ending of the case and therefore no individual needs protection against a reopening. (b) Ending a Case with a Formal Suspect The other set of rules concerns the situation where a person is a formal suspect.158 As noted above, according to AJA § 721, there are three reasons to end the case (påtaleopgivelse): — A case must be dropped if the accusations prove unfounded (grundløs).159 — A case may be ended if the authorities find that any further investigations or starting criminal proceedings will not result in a conviction.160 — Finally, a case may be ended if the criminal investigation and court proceedings will result in a disproportionate use of resources.161 If the case is ended in accordance with AJA § 721, this decision has to be brought to the suspect’s attention (forkyndt). The case can only be reopened within a two-month period proceeding from the date when the case was originally closed. Within this two-month period a case can be continued by either the Regional Public Prosecutor or the Chief of Police. The Regional Public Prosecutor will only reopen the case if there has been an appeal. There is no remedy against the decision to continue the case within the two-month period. (c) Withdrawal of Charges The ‘withdrawal of charges’ (tiltalefrafald) is a settlement where the suspect is considered guilty.162 Because of this, it is required that the suspect is proven guilty and it is therefore argued that this procedure usually requires the suspect’s confession.163 There are various reasons given in AJA § 722 allowing charges to be withdrawn. The reasons for using this procedure are usually limited to minor cases or, for example, to cases concerning juveniles. See AJA § 722(1) no 1–7.164 AJA § 722(2) allows charges to be withdrawn where there are ‘special mitigating circumstances’; there is no restriction concerning the seriousness of the crime. In theory, this means a homicide case could also be ended. 157 158 159 160 161 162 163 164

Ibid 156. § 721AJA; § 749(2) AJA. Smith et al (n 4) 157; § 721(1) no 1 AJA. For further information regarding the degree of suspicion see para 14. Smith et al (n 4) 158. Ibid 172–73. Ibid 173. Ibid 174–76.

86 Denmark However, in practice ‘withdrawal of charges’ arises in a set of common situations.165 The ‘withdrawal of charges’ may be either unconditional or conditional. If the ‘withdrawal of charges is conditional, the actual conditions must be sanctioned by the court (AJA § 723). As noted, if a case against a person is ended with a ‘withdrawal of charges’, it cannot be reopened after a period of two months has elapsed; the settlement has negative legal force (retskraft).166 The ‘withdrawal of charges’ will be registered in the Danish criminal register. In cases where private individuals have committed offences on the behalf of a company, and it is possible to indict the company, the authorities have the right to execute a ‘withdrawal of charges’ concerning the persons acting for the company if they find the indictment of the company sufficient.167 The Chief of Police (politidirektøren) does not usually require authorisation for diversion. In certain situations concerning AJA § 722(2), the Regional Public Prosecutor can decide whether or not there are sufficient grounds to execute a ‘withdrawal of charges’; for example, where a serious crime has been committed and the individual committing the crime has injured himself in a very severe and permanent way, and the injury is considered sufficient punishment.168 There is no formal demand that the accused must accept an unconditional ‘withdrawal of charges’; this creates no problem in most cases, as it is often seen as an unofficial requirement that the accused confesses. However, there are examples where the accused has not pleaded guilty and has refused a ‘withdrawal of charges’ without being able to avoid it. This has been criticised, as the ‘withdrawal of charges’ mentioned above includes an assumption of guilt, and the accused in this situation has no opportunity to clear his/her name.169 The injured party (forurettede) and other relevant parties (who have the right to appeal the decision to the higher level of the prosecution service) shall be notified. (d) Shortened Procedure If the prosecution service is only claiming a fine for a given crime, it will send a letter to the suspect.170 This letter will have the same content as an indictment (eg setting out the alleged crime) and will inform the suspect/accused that the matter might be settled by the payment of a fine of a given amount. If the suspect/accused pays the fine, the case will be ended. In terms of AJA § 832, a precondition for this procedure is that the accused pleads guilty. In practice however, it is seen as sufficient if the accused chooses to pay. If the accused pays, but declares his/her innocence at the same time, the case will be brought to court. If the accused does not accept the compound fine, the case will also be brought to court.171 Policemen can issue ‘out of court fines’ by issuing a ‘ticket’ for violations of the Road Traffic Act, AJA § 832(4).172 The upper limit for an ‘on the spot’ fine is 3000 DKK and the 165 166 167 168 169 170 171 172

Langsted, Garde, Greve (n 1) 184. Smith et al (n 4) 173, 178. Ibid 175. Toftegaard Nielsen (n 9) 100. See Langsted, Garde, Greve (n 1) 185f. Toftegaard Nielsen (n 9) 121–24. Langsted, Garde, Greve (n 1) 188. Greve (n 11) 4.

Evidence 87 specific amount is metered out according to guidelines. In the case of an ‘out of court’ fine issued by letter, however, there is no upper limit.173 (e) Prosecution The prosecutor has a monopoly of representing the state in criminal proceedings, and is the body that initiates the procecution. This happens by issuing a written indictment. There is a special shortened procedure in cases where the suspect pleads guilty (Tilståelsessager) (AJA § 831). In these cases there are no formal requirements of the indictment being in written form. 2. Reopening of Otherwise Closed Cases In very rare cases, the Special Complaints Court (Den Særlige Klageret) has the authority to reopen otherwise closed cases. This could for instance be the case if a person is convicted of a murder, but after his conviction the DNA evidence used in the court proceedings turns out to be faulty, or if evidence has clearly been tampered with, AJA § 977. Furthermore, the case will only be reopened if the court finds that the new information would have entailed a different judgement. A case can only be reopened if the request is filed within five years, AJA § 979(1).

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence The assessment of evidence by the court is, for the most part, unrestricted in the Danish legal system, AJA § 880, and a verdict can only be based on the evidence that is directly or indirectly presented in the court.174 One of the decisive principles for criminal proceedings is the principle of ‘material truth’ (materielle sandheds princip), focusing on the obligation of the courts to find the objective truth in criminal cases.175 In general, the regulations concerning the use of evidence in Danish law are quite liberal; only a few situations exist where the exclusion of evidence is compulsory. For example, if the accused has been interrogated without being informed of his/her right to remain silent or if a witness has not been informed of his/her possible privilege of not being obliged to give evidence, the content of their statements may not be used, neither directly nor indirectly (eg questioning the policemen who took the statement).176 In other situations, the Danish courts have been quite lenient and have permitted illegally obtained evidence when the evidence was judged to be reliable. In such decisions, the court is making a specific assessment, weighing the severity of the breach of law with the importance of the evidence being presented and the severity of the specific crime in question.177 This lenient approach can be seen as a consequence of the principle of material truth 173 174 175 176 177

Langsted, Garde, Greve (n 1) 188. Ibid 137. Smith et al (n 4) 26f. Langsted, Garde, Greve (n 1) 143f. Smith et al (n 4) 30f.

88 Denmark (materielle sandheds princip), guiding the Danish criminal justice system. However, in recent times the courts seem to have been more focused on complying with the formal regulations and appear to be less open to admitting illegally obtained evidence. This development seems to be highly influenced by the rulings of the ECtHR.178

2. Admissibility of Written Reports Written reports of statements made in court by the accused may be admitted directly as evidence. Furthermore, written reports of witness statements made in court may be used in court if the witness is unavailable, refuses to answer or changes his/her statement, AJA § 871. The trust in these records is related to the fact that a comprehensive summary of the statement is always included in the transcript, enabling misunderstandings to be corrected.179 Documents made in connection with a public duty may be admitted directly. For example, a description of a crime scene made by crime scene officers, AJA § 871(2). Furthermore, the criminal record of the accused is admitted and always known to the court.180 The question of whether the records of police interrogations can be admitted to the court as evidence is more complicated. Such records are always kept in the court files, in the files of the defence and in the files of the prosecutor. If the accused or witness changes his/her statement, the court can and usually does grant permission for the accused/witness to be confronted with his/her former statement. If the former statement is vital, the police officer who conducted the interrogation may be called as a witness.181 In this respect, the Danish legislation appears not to prohibit ‘hearsay’ statements as evidence. However, the courts seem to be sceptical when evaluating indirect evidence and the prosecution will always prefer to present direct evidence if possible.182

3. Status of Evidence Obtained in Other Member States The Danish legal system does not distinguish between evidence obtained in Denmark and evidence obtained in another Member State. Evidence obtained in another Member State is admissible evidence and it is treated exactly the same way as evidence obtained in Denmark.

E. THE RIGHTS OF THE SUSPECT

As mentioned above, it should be noted that AJA § 746(1) provides a system of court control in connection with conflicts regarding the investigation. The courts decide on the initiative of the involved parts on conflicts as to the legality of investigation steps taken by the police 178 179 180 181 182

See further on this development Smith et al (n 4) 641–45 (with further references). Langsted, Garde, Greve (n 1) 143. Ibid 143. Ibid 143; See also AJA § 871. Langsted, Garde, Greve (n 1) 142.

The Rights of the Suspect 89 and on conflicts concerning the rights/competences (beføjelser) of the accused and the defence. This is an part of the system of checks and balances in the Danish legal system.

1. Presumption of Innocence The presumption of innocence is one of the core legal principles of criminal procedures. The degree of proof being the basis for a conviction is not codified but the principle of ‘in dubio pro reo’/certainty beyond reasonable doubt for a guilty verdict to be passed, is fully accepted, even if it is not codified.183 The presumption of innocence ceases with the guilty verdict in a court of first instance.

2. The Right of the Defence to Undertake Investigative Measures The question of whether the defence can undertake its own investigative measures has been the object of discussion in Denmark.184 The procedural rules do not regulate this particular question and give no specific investigative competences to defence lawyers. The main arguments against passing legislation that would grant specific investigative competences to the defence is that there is no need for such legislation because the prosecution/police are obliged to work objectively and the defence can have access to police files, and the defence can actually apply (begære) for specific investigative actions.185 On the other hand, there are many steps taken in an investigation where activities do not demand a legal basis. For example, everyone, including the defence lawyer, may view a crime scene in a public space and take photographs of the scene after the police have conducted their evidence-gathering and reopened the area to the public.186 The question of the right of the defence to carry out investigative measures is especially discussed in relation to the question of whether the defence lawyer may approach potential witnesses. It is argued that making approaches to potential witnesses and asking them questions requires no legal remedy because the people in question are free to choose to refuse to answer. On the other hand, there have been examples where courts have criticised defence lawyers for having approached witnesses.187 At all times, the defence lawyer is prohibited from obstructing the criminal proceedings against his/her client.188

3. The Right to Legal Assistance A suspect has the right to receive legal assistance at any stage of the proceedings, AJA § 730(1). Furthermore, legal assistance is obligatory in certain situations described by the

183 184 185 186 187 188

Ibid 137; Smith et al (n 4) 598–602. See Smith et al (n 4) 345–53. Toftegaard Nielsen (n 9) 62–64. Smith et al (n 4) 345. Toftegaard Nielsen (n 9) 63. Smith et al (n 4) 347–52; Toftegaard Nielsen (n 9) 63f. See Smith et al (n 4) 347.

90 Denmark law, and in such situations the court will appoint a ‘public’ defence lawyer.189 There is no formal requirement for informing the accused of his/her rights, and the use of privately hired defence lawyers is quite rare in Denmark, mainly because ‘public’ defence lawyers are appointed in the majority of serious cases. Furthermore, in most cases the suspect can select the ‘public’ lawyer to be appointed by the court, and the professional competency of the appointed lawyer is usually very high.190 AJA § 731 outlines the situations where the court will appoint a ‘public’ defence lawyer if the accused has not chosen one. In general, two situations can be distinguished: in the first situation the appointment of a defence lawyer is mandatory both for the court and the suspect; in the second situation the appointment is mandatory for the court, if the suspect applies for an appointment.191 The situations in which a ‘public’ defence will be appointed according to AJA § 731 vary, and in practice the appointment of a public defence takes place in the majority of cases (but not in very minor cases). For example, a ‘public’ defence lawyer will be appointed in a case where the suspect is detained for more than 24 hours and if certain investigative measures are used in the investigation. The suspect is not required to accept the ‘public’ lawyer, and in general, will have a new lawyer appointed if he/she requests this. The suspect has the right to request that a specific lawyer is appointed, and in general, this request is approved. If the defence lawyer is not appointed by the court, the suspect has to pay the costs of the lawyer. In the case of a not guilty verdict, the suspect may have these costs reimbursed (up to a certain limit). If the defence lawyer is appointed by the court, the state will pay for the defence lawyer. Payment for the services of the defence lawyer is regulated by rates agreed between the Ministry of Justice and the National Bar Association. If the suspect is convicted, then he/ she is obliged to reimburse all costs of the proceedings, including defence costs. In many cases, the convicted person is unable to pay that bill.192

4. The Right to have Another Person Informed About One’s Arrest There is no formal codified right to inform a person of choice about an arrest, but it is argued that such a possibility should be granted, as the general principle for arrest is that is should only include the restrictions necessary for the goal of the arrest.193

5. The Right to Submit Written Statements The suspect may submit written statements at any time. There is no formal requirement that the suspect should be instructed of this right. However, this does not seem to be a 189

The situations in which a defence lawyer will be appointed are outlined in Langsted, Garde, Greve (n 1)

131f. 190 191 192 193

Langsted, Garde, Greve (n 1) 131f. Ibid 132. Ibid 133. Ibid 169f.

The Rights of the Suspect 91 problem. It should be mentioned again in this context that compared with other legal systems, the Danish system of criminal justice does not place as much focus on the formalisation of criminal procedure.

6. The Right to Ask for a Special Act of Investigation The suspect, or in practice the suspect’s defence lawyer, has the right to ask for investigative measures to be taken. The police are not formally obliged to carry out these measures. In the case of a refusal by the police to comply with the defence’s wish for an investigative measure to be taken, the matter can be referred to the court, AJA § 746(1). As mentioned above, criminal proceedings are guided by the principle of material truth (materielle sandheds princip), and therefore the police often comply with the defence’s submitted request.

7. The Right to be Informed that his/her Statement may be Used as Evidence In the Danish legal system the statement of the accused is not seen as formal evidence, though of course often, if the suspect does not choose to remain silent, it forms a central source of information in the case. If the accused waives the right to remain silent during the court proceedings, the prosecutor may confront the accused with a former statement.194 There is no formal obligation for the suspect to be informed that his/her statement might be used as evidence. But as mentioned previously, the suspect must be informed of his/her right to remain silent.

8. The Right to Require a Precise Wording of the Statements and the Right to Full and Accurate Recording of this The suspect has the right to review his/her written statement, and to revise any misunderstood wording, AJA § 751(2). AJA § 751 regulates the requirement concerning the documentation of the statement and clarifies that all significant (væsentlige) details must be written down. Furthermore, the police must ensure that the essential (afgørende) part of the statement is written down ‘in the suspects own words’. The suspect has the right to review his/her written statement, and has the right to revise any misunderstood wording, AJA § 751(2).

9. The Right to Refer to Documents The right to refer to documents during the interview is not seen as an issue requiring regulation in Denmark. Once again, this lack of codification should be seen in relation to the

194

Smith et al (n 4) 200ff.

92 Denmark already mentioned guiding principle of ‘material truth’ (materielle sandheds princip); the suspect may refer to whatever he/she thinks is relevant under the interview.

10. The Right to be Informed About Possibilities of Reconciliation with the Victim In 2010, Denmark introduced a general scheme of mediation between offender and victim (konfliktråd).195 This scheme was established on the basis of a number of previous projects related to mediation in criminal cases. The mediation scheme is not directly connected to the criminal proceedings and is seen as a supplement and not as an alternative to punishment. The mediation should be offered in all possible cases, eg where there is an identifiable victim, the offender has confessed and both parties agree with the mediation.196

11. The Right to be Informed of the Place of Detention The suspect is normally present during the preliminary court hearing (grundlovsforhøret) concerning his/her detention. There is no formal right for the suspect to be informed about the specific place of detention, but it seems that this is an unproblematic matter—it is seen as ‘common sense’ to inform the person concerned.

12. Access to the File During Pre-Trial Proceedings In general, questions regarding access to files (aktindsigt) are regulated by AJA §§ 729a– 729d. In general, the suspect has the right to gain access to the case files, AJA § 729b. This concerns both the investigation material that the police have obtained and the court books. If the suspect has a defence lawyer, access to the material will be processed by the defence lawyer, AJA § 729a. As for the investigation material obtained by the police, the police (or the court) must approve the disclosure of this information to the suspect, AJA § 729a(3). In general, the suspect has the right to gain access to the case file to the same extent as the suspect’s defence lawyer.197 In some cases (see below), the suspect is limited to a socalled inspection of the material. This is the equivalent to a situation where for example, the defence lawyer is restricted from physically handing over a police report. As mentioned above, the right to access to the file concerns the investigation material that the police have obtained and the court book (retsbogen).198 It should be noted in this context, that the law makes a distinction between these two types of documents. This distinction is related to the restriction and limitation of access, see further below. In general, only the suspect and the defence lawyer have the right to access the documents. As for the documents obtained by the police during the investigation, the consent of

195 196 197 198

Lov om konflikråd i anledning af en strafbar handling (law no 467 of 12 June 2009). See the Danish Ministry of Justice webpage, www.justitsministeriet.dk/konfliktraad.html. Smith et al (n 4) 216f. Ibid 211f.

The Rights of the Suspect 93 the police is required before the defence lawyer can show these documents to the suspect, AJA § 729a(3). In general, the victim is not allowed access to the files until after the criminal proceedings are concluded. It is possible to gain access during and after the investigation is completed. In minor criminal cases, where no defence lawyer is appointed, it can be in the interest of the suspect to gain access at an early stage of the investigation. When the criminal proceedings have concluded the possibility of gaining access is much greater because there are not the same investigational considerations. Concerning this question of refusal and/or postponing access one has to distinguish between the following situations. (a) In a Case Where the Suspect has a Defence Lawyer As for the access of the court documents (retsbøgerne), the court may decide that the defence lawyer must refrain from handing over documents, if the requirements of AJA §§ 748 and 856 are met. For example, in cases where it is feared the investigation would suffer or be obstructed by the suspect. As for the material the police have gathered during the investigation, the defence lawyer has the right to gain access and if possible have the material handed over. The defence lawyer is prohibited from handing over these documents to the suspect without the consent of the police, AJA § 729a(3). This means that the defence lawyer has greater access to the documents than the suspect. (b) In a Case Where the Suspect does not have a Defence Lawyer As a starting point, the same system as mentioned above applies, AJA § 729b. The suspect has the same rights of access to the documents, as a suspect who has an appointed defence lawyer.199 (c) In Both Situations AJA § 729c allows a limitation of the suspect’s and the defence lawyer’s right to access the documents. This limitation may only apply if the case involves the security of the state, the elucidation of the case, a third party’s health, etc. The requirements are largely the same as in AJA §§ 748 and 856. It is the responsibility of the court to decide on the limitation, AJA § 729c(4). As a limitation to the application of AJA § 729c(1), AJA § 729c(2) states that if there is considerable concerns regarding the defence lawyer’s ability to safeguard the suspect’s rights, the measure may not be applied. Usually copies of the file can be made. However, if access is restricted to an inspection of the relevant material, no copies may be made. The decision of the police may be challenged at a court hearing, AJA § 746, but this possibility has only little importance in practice.

199

Smith et al (n 4) 216f.

94 Denmark If the defence or the suspect has not had the time to prepare their defence, the court proceedings can be postponed.

13. The Right to an Interpreter If the suspect does not speak a language both parties understand an interpreter will be summoned already under the pre-trial phase. All court proceedings will be in Danish, here an interpreter is required if the suspect/accused’s knowledge of Danish is insufficient. The question of who bears the cost of interpretation depends on whether the suspect is convicted. If the suspect is convicted, he/she must pay for the costs of the interpreter. If the suspect is not convicted, the state pays for all costs relating to the case. There is no general obligation to translate documents. If any documents need to be translated, it will usually be the suspect’s own responsibility to do so. Only the report where the charges are noted must be translated, should the suspect wish it.

14. The Right to Silence The suspect’s right to remain silent is respected throughout the whole criminal process. The suspect must be informed of the right to remain silent as soon as he/she is formally regarded as a ‘suspect’ in the investigation. In general, the suspect is verbally informed; the fact that the suspect was informed must be documented in the police record. If a suspect was not informed of the right to remain silent, any statement that the suspect gives to the police cannot be used as evidence in a later court trial (see above).

15. Rights of Legal Persons in Criminal Proceedings Danish procedural legislation does not distinguish between legal persons and persons. However, in connection with a number of procedural steps and coercive measures, it is common sense that they cannot be applied to the legal person, but to the person(s) acting for the legal person.

3 The Netherlands* IDLIR PEÇI

Introduction

T

HIS CONTRIBUTION SEEKS to give a global picture of certain aspects of Dutch pre-trial criminal proceedings. To this end the paper will first discuss some general aspects of the procedure, such as sources of criminal law, phases of criminal procedure, bodies carrying out investigation and prosecution, specialised procedure for financial criminal investigations and the status of the suspect in pre-trial proceedings. The paper goes on to discuss investigation measures, followed by prosecution measures. The last two topics discussed are certain issues concerning evidence and the rights of the suspect during the pre-trial phase. A. GENERAL ASPECTS OF THE PROCEDURE

1. Sources of Criminal Procedural Law (a) Statutory Law Article 1 of the Code of Criminal Procedure (CCP) requires that criminal procedure takes place only in accordance with the law—law meant in a formal sense. The foundation of CCP Article 1 is legal certainty for the citizens and the avoidance of arbitrariness. Criminal procedural powers can have a tremendous impact on the life of a country’s citizens and therefore it should be very clear when, how and against whom those powers may be used. Moreover, the law of criminal procedure is a nationwide law, not local or provincial/regional.1 The most important source of Dutch criminal procedure is the CCP, which regulates the entire criminal procedure from the first phase of the proceedings (ie the starting of an investigation) until the passing of sentence. The Netherlands’ Constitution also contains provisions which are relevant for the criminal procedure, concerning fundamental rights, the applicability of international law into the Dutch legal order, the administration of criminal justice and jurisdiction etc. Important provisions of criminal procedure are also found in the Law on Judicial Organisation. A number of other special legislative acts provide various kinds of criminal procedural provisions in the fields of fiscal and customs criminal law, military law, socio-economical criminal law, etc. * The manuscript of this chapter was concluded in November 2011 and therefore possible legislative changes after that date are not reflected in this chapter. 1 HR (Supreme Court) 12 April 1897 W 6954.

96 The Netherlands (b) International Treaties and Conventions International treaties and conventions are an important source of criminal procedure. In this respect, human rights conventions, such as the ECHR and the International Convention on Civil and Political Rights have a great impact on the criminal procedure. Article 93 of the Constitution stipulates that provisions of treaties and of resolutions by international institutions, which may be binding on all persons by virtue of their contents, become binding after they have been published and ratified.2 Moreover, according to Article 94 of the Constitution international treaties and conventions prevail upon national law. (c) EU Instruments Other sources of criminal procedure are of course the Framework Decisions and EC/EU directives in the field of (procedural) criminal law. (d) Policy Rules The prosecution service regularly issues all kinds of policy rules. The most important are instructions (aanwijzingen) and directives for criminal procedure (richtlijnen voor strafvoordering). The instructions constitute compelling, normative rules and are often used in order to instruct the prosecutors with respect to the use of their discretionary powers in the field of investigation and prosecution of criminal offences. Directives prescribe rules to the prosecutors concerning the penalties that they must request in certain categories of cases. The Dutch Supreme Court has decided that rights may be derived from adequately published directives.3 (e) General Principles of Law General principles of law and especially principles of due process play an important role in criminal procedure. They supplement the discretionary statutory powers of criminal procedure. This supplementary role of principles of due process is also accepted by the Supreme Court. In a classic decision, the Supreme Court held for example that entering a private home without the permission of the occupant should meet not only the statutory requirements but also the requirements of due process, such as the subsidiarity and proportionality principles.4

2. Phases of Criminal Procedure The criminal procedure in the Netherlands is divided into phases, as reflected in the structure of the CCP. In principle, the legislator has chosen for a chronological structuring of the Code. Book II of the CCP regulates the procedure in the first instance. Title I of Book II of the CCP deals with the investigation. Titles II, III and IV contain provisions on the 2 3 4

Article 91 Dutch Constitution. HR (Supreme Court) 28 March 1990 NJ 1991, 118. HR (Supreme Court) 12 December 1978 NJ 1979, 142.

General Aspects of the Procedure 97 judicial investigation and the decision to (further) prosecute, while Titles V and VI deal with bringing the case before the court and the court hearing. Book III contains provisions on legal remedies (appeal), and Book V deals with the execution of court decisions. However, it should be noted that these phases are not hermetically divided from each other. Investigation, prosecution and bringing to judgment overlap each other. The prosecution phase does not end at the moment when the case is brought to judgment. The judgment (adjudication/trial) forms part of the prosecution. Moreover, the investigation phase does not come to an end with the commencement of the prosecution.5 The possibility to (further) investigate is barred neither by the summoning of the suspect nor by a decision of the lower courts, provided that the judge is aware of the ongoing investigation, and the rights of the suspect and the principles of due process are respected.6 What follows below is a brief description of each phase of the process. (a) Investigation Until the coming into force of the Special Investigative Powers Act,7 the CCP did not define investigation. However, the Dutch doctrine as well as the Dutch courts interpreted investigation as meaning inquiries that take place after a reasonable suspicion has arisen that a criminal offence has been committed. Only after this moment could one speak of investigation.8 Thus, investigation meant the clarification of an offence already committed. In this context, investigation had a reactive character. With the coming into force of the Special Investigative Powers Act, the CCP contained for the first time a definition of investigation. According to (the old) Article 132a, investigation not only comprised of the classic (reactive) investigation, but also the proactive one, namely, inquiries that take place as a result of a reasonable suspicion that offences are being planned or are being committed in the context of organised crime, and whose purpose is the imposition of criminal sanctions.9 Thus, it does not just react to offences that have already been committed—as the classic reactive investigation does—but also addresses criminal offences that may be committed in the future. In this sense, Article 132a introduced a wider concept into the CCP. This new concept of investigation was the result of a parliamentary inquiry on the use of investigation methods in the context of organised crime. The report of the commission in charge of the inquiry, baptised with the name of the chairman of that commission, Van Traa, revealed that a number of far-reaching measures were used without any statutory basis.10 Therefore, the new concept of investigation made it possible that those investigative methods used in the proactive phase would have a statutory basise in the CCP.11 With the coming into

5 G Knigge, ‘Opsporing, vervolging en berechting als fasen in de strafvordering’ in G Knigge (ed), Leerstukken van strafprocesrecht, 5th edn (Deventer, Gouda Quint, 2001) 27. 6 HR (Supreme Court) 5 December 1989 NJ 1990, 719. 7 The Special Investigative Powers Act (Wet bijzondere opsporingsbevoegdheden) came into force on 1 February 2000. 8 OJDML Jansen, Het Handhavingsonderzoek: Behoren het handhavingstoezicht, het boeteonderzoek en de opsporing verschillend te worden genormeerd? (Nijmegen, Ars Aequi Libri, 1999) 45; G Knigge, ‘Van opsporing en strafvordering’, Delikt en Delikwent, March 1990 209. 9 GPMF Mols, ‘De gemoderniseerde opsporing’ in LEM Hendriks, JH Klifman, GPMF Mols, TA de Roos, J Wöretshofer (eds), Hoofdstukken strafprocesrecht, 5th edn (Deventer, Gouda Quint, 1999) 177–84; see also Knigge (n 4) 19. 10 Kamerstukken 196–1997, 24072, nr 10–20. 11 Book I Title V of the.

98 The Netherlands force of the Act on the Widening of the Possibilities for the Investigation and Prosecution of Terrorist Offences on 1 February 2007, Article 132a of the CCP was amended and the legal concept of investigation was widened again. According to the new Article 132a, investigation is any inquiry in relation to punishable facts, under the authority of the public prosecutor, and with the view (purpose) of taking decisions in criminal proceedings. The new definition is considerably wider than the old one, since the concept of investigation comprises also the exercise of competences without any reasonable suspicion that a punishable fact is committed or will be committed.12 However this does not mean that there is no suspicion at all required when certain investigative measures or powers are exercised. In the first place, the exercise of certain coercive measures, ie, arrest for questioning of a suspect who is not caught in flagrante delicto,13 requires that there should be a suspect of an offence for which detention on remand is allowed. Article 67 CCP contains as a criterion for detention on remand that the offence is punishable with a prison sentence of at least four years. Moreover, a list of other offences is inserted in Article 67 CCP which are not punishable with a sentence of at least four years’ imprisonment, but which may nevertheless give rise to detention on remand. Other coercive measures, ie, searching of premises for the purpose of seizure,14 require a reasonable suspicion of an offence for which detention on remand is allowed, but it is not necessary that there is a suspect. (b) Prosecution and Opportunity Principle Article 167(1) CCP stipulates that the decision to prosecute is that of the public prosecutor. According to the same article, prosecution takes place through the imposition of a penal order or otherwise. Since the coming into force of the Public Prosecutor Settlement Act in 2008, the public prosecutor may impose a penal order without the intervention (at first instance) of the court.15 The serving of such an order falls also within the realm of prosecution.16 Otherwise, the prosecution takes place through the involvement of the (investigative) judge by the public prosecutor in a criminal case. Such involvement may occur in different ways and moments. The most common way is the serving of the summons, which, following Article 258(1) CCP, means that the case is brought to judgment and the judge becomes acquainted with the case. In such a case the public prosecutor should in the first place look into the feasibility of a conviction. He should thus attempt to anticipate the decision that the trial judge will give. If for example there is not enough evidence, then the public prosecutor would be better not to prosecute, since the probability that the judge will acquit the suspect is high.17

12 See I Peçi, E Sikkema, ‘De Rechtsbeschermende functie van het opsporingsbegrip’, in AA Franken, M de Langen, M Moerings (eds), Constante Waarden (Den Haag, Boom Juridische uitgevers, 2008) 354–55. 13 CCP, Art 54. 14 CCP, Art 96c. 15 CCP, Arts 257a–57h. 16 G Corstens, Het Nederlandse Strafprocesrecht, 6th edn (Deventer, Kluwer, 2008) 117. See also WECA Valkenburg ‘Artikel 167 SV, aant [note] 3’ in CPM Cleiren, JF Nijboer, Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 793. 17 Corstens (n 15) 525, 529.

General Aspects of the Procedure 99 Furthermore the public prosecutor may involve a judge in a criminal case when he (the prosecutor) requests the opening of a judicial investigation by the investigative judge.18 The request for pre-trial detention is another example of involving the judge in a criminal case.19 Summing up, it may be said that prosecution means the serving of a penal order by the prosecutor or the involvement of the judge by the prosecutor in a criminal case.20 The Dutch legislator has opted for the opportunity principle.21 Article 167(2) CCP stipulates that the public prosecutor may decide not to prosecute on the grounds of general interest. A literal reading of this provision would lead to a negative application of the opportunity principle: prosecution is the general duty, while exceptions to this general duty are allowed only on grounds of general interest.22 It seems however, that in practice a positive assertion of the opportunity principle prevails.23 This means that prosecution is desirable only if the general interest so requires. Other forms of enforcement, ie, administrative, civil or disciplinary, are also possible.24 There are certain limits to the opportunity principle. The opportunity principle is applicable only in concrete cases. Applicability of the principle to a whole category of cases or persons is not allowed, because in this way the public prosecutor would take the role of the legislator.25 Moreover, the opportunity principle may not lead to arbitrary decisions where only individual interests are taken into consideration. The principles of due process form a further limit to the application of the opportunity principle.26 (c) Bringing to Judgment Bringing to judgment means that the public prosecutor has summoned the suspect to appear in court.27 However, the public prosecutor may withdraw the summons before the court hearing begins.28

3. Bodies Carrying out Investigation and Prosecution The Public Prosecutor is the central body during the pre-trial phase in the Netherlands. The Public Prosecutor leads the investigation. Moreover, the prosecution service is the only agency having the power to prosecute. There is no other service, authority or person who can prosecute. The prosecution service has thus a monopoly of prosecution. Therefore, what follows below is a description of the bodies carrying out investigations

18

CCP, Art 181. CCP, Arts 63, 65, 67. 20 Corstens (n 15) 117; Knigge (n 4) 23–24. 21 JMAV Moons, ‘Het opportuniteitsbeginsel’ [1969] NJB 485–95, 521–29. 22 Valkenburg (n 15) 791. 23 Ibid 792. 24 AC ‘t Hart, Om het Openbaar Ministerie, openbare les Tilburg (Zwolle, Tjeenk Willink, 1976) 12; Moons (n 20) 485–95, 521–29. 25 Hart (n 23) 12. 26 Corstens (n 15) 526. 27 CCP, Art 258(1). 28 CCP, Art 266. 19

100 The Netherlands in the Netherlands. Special attention will also be paid to the interaction of those bodies during the investigation phase. (a) Police Investigation is regulated in Title I of Book II of the CCP, in which Articles 141 and 142 play an important role. These two articles contain a limitative enumeration of the persons in charge of investigating criminal offences.29 Article 141 CCP names the first category of persons charged with the investigation of criminal offences. They are the officials of the public prosecution service, the police and the Royal Military Police. The police are responsible for the bulk of investigations, but investigation of criminal offences is only one part of the police’s task. According to Article 2 of the Police Act 1993 (Politiewet 1993), the task of the police is to actively maintain the legal order and to grant help to those who need it. The active (actual) maintenance of the legal order means that the police are on the one hand busy with the criminal law enforcement of the legal order, while on the other hand they maintain public order.30 The criminal law enforcement of the legal order implies that the police have to investigate criminal offences. The police derive their investigative powers from Article 141 CCP.31 It is interesting to note that the police are under the supervision of two different authorities. Specifically, for criminal law enforcement of the legal order, the police are under the supervision of the public prosecutor, while for the maintenance of public order, the mayor of the relevant district is their boss. (b) Public Prosecution As mentioned above, the prosecution service is one of the agencies that may investigate pursuant to Article 141 CCP. The public prosecutor is moreover the senior investigator32 and the investigation is conducted under his authority.33 However, in practice the police are responsible for the bulk of investigation and the majority of the cases that come to trial are prosecuted only on the basis of the information collected by the police during investigation, It should be noted that the public prosecutor is responsible for the conduct of the police during the investigation and he has to ensure that the police observe all the rules and procedures. (c) Investigative Judge The investigative judge may conduct a judicial preliminary investigation,34 either him/ herself or with the involvement of other investigators, usually the police.35 In these cases

29 The question of whether CCP, Arts 141 and 142 contain a limitative enumeration is a point of debate in Dutch legal literature. JM Reijntjes suggests that it does not make sense to talk about investigative competency and therefore everyone may investigate, while the persons who are charged with investigating must investigate. See JM Reijntjes, Boef of burger? (Arnhem, Gouda Quint, 1989) 6ff. 30 Art 12 and 13 Politiewet (Police Act) 1993. 31 Knigge (n 4) 7. 32 CCP, Art 148; Art 13 Politiewet 1993 (Police Act). 33 CCP, Art 132a. 34 CCP, Art 181–241c. 35 CCP, Art 177(1).

General Aspects of the Procedure 101 the investigative judge remains in charge of and is responsible for the investigation. It should be noted that the involvement of the Police in carrying out certain investigative acts during the judicial investigation should not lead to a weakening of the position of the suspect during the judicial preliminary investigation.36 (d) Specialised Agencies/Extraordinary Investigative Officers The persons named in Article 141 CCP are seen as the regular investigative officers. This is derived from Article 142 CCP, which introduces the extraordinary (special) investigative officers. These officers are: (a)

persons to whom the Minister of Justice, as well as the College of General Attorneys has officially granted the power to investigate;37 (b) adult persons who belong to categories or units indicated (designated) through the Minister of Justice;38 (c) persons who are charged in special statutes with the investigation of criminal offences created by those statutes, or persons who are charged by law with supervising compliance with those special statutes.39 The extraordinary investigative officers do not belong to the police force. Various special investigative services are established with the purpose of enforcing and supervising compliance with special acts. Often the special acts provide for supplementary investigative powers which go further than the powers contained in the CCP. However, the supplementary investigative powers granted under the special acts may be used exclusively for the investigation of the criminal offences created from those acts.40 The special investigative agencies include the FIOD (Fiscal Information and Investigation Service) and the ECD (Economic Control Service) of the Inland Revenue, the social information and investigation agency of the Ministry of Social Affairs and Employment, the investigative agency of the General Inspectorate of the Ministry of Agriculture, Nature and Food Quality, and the information and investigation agency of the Ministry of Housing, Spatial Planning and the Environment. Such services operate in difficult structural environments. On the one hand they are part of a ministerial department, which means that the minister concerned is charged with the administration of the service and is responsible for the general implementation policies; on the other hand the public prosecutor supervises the investigative activities of the investigation officers employed by those special services.

36 Such a weakening may occur when the Police is interrogating the suspect on behalf of the investigating judge. In such cases the Police may be inclined to refuse to allow the defence lawyer to be present during the interrogation since, formally speaking, the law (Article 186a CCP) gives the right to the defence lawyer to be present only if the accused is interrogated by the investigating judge him(her)self; Corstens (n 15) 318–19. 37 CCP, Art 142(1)(a). The original Dutch term used in Art 142(1)(a) is ‘akte van opsporingsbevoegdheid’, which could be translated literally as a ‘deed of investigative powers’ or ‘a licence to investigate’. However, an ‘akte van opsporingsbevoegdheid’ is neither a deed nor a licence; it is more of an official form compiled by a public authority, which declares that a person may conduct a specific activity. 38 CCP, Art 142 (1)(b). 39 CCP, Art 142(1)(c). 40 G Knigge, NJM Kwakman, ‘Het opsporingsbegrip en de normering van de opsporingstaak’ in MS Groenhuijsen, G Knigge (eds), Het vooronderzoek in strafzaken: Tweede interimrapport onderzoeksproject Strafvordering 2001 (Deventer, Gouda Quint, 2001) 128.

102 The Netherlands 4. Specialised Procedure for Financial Criminal Investigations It should be noted from the outset that the term meaning ‘financial criminal investigation’ is used in the Netherlands for investigations into the proceeds of crimes, ie, the illegally obtained financial gains.41 Such an investigation may be conducted to see what the profits are from various criminal activities, including robberies, drug trafficking or trafficking in human beings, thus not necessarily profits stemming from financial crimes (although these may also be the subject of such investigation). The purpose of these investigations is to establish the illegally obtained profit (wederrechtelijk vergkregen voordeel), so that the suspect or the convicted persons may be ordered by the court to pay that money to the state.42 Investigations into financial or economical crimes on the other hand are governed by both the CCP and the Economic Offences Act (WED). The WED functions as a framework statute for many special acts in the field of socio-economic and environmental regulatory legislation. The WED can be seen as a codification of a special domain of criminal law. However, it should be kept in mind that the main rule is that the investigation, prosecution and sentencing of economic (criminal) offences are bound by the rules of the general criminal (procedural) law, unless the WED provides for another deviant trajectory.43 Articles 1 and 1a WED contain limitative lists of economic (criminal) offences. This does not mean that these articles provide for the definition of each offence. The definitions of the offences are already given in the special laws concerned. What the WED does is a listing of those articles, contained in special acts, whose infringement constitutes an economic (criminal) offence. As mentioned above, there are specialised agencies which conduct criminal investigations into financial and economical offences namely FIOD/ECD. Besides from the specialised agencies, the police are also empowered to investigate financial offences.44 Title III of the WED contains provisions concerning the investigation of the economic and financial (criminal) offences. An investigation which has began as a result of a violation of a provision contained in Articles 1 or 1a WED is usually conducted by the so-called extraordinary investigative service FIOD/ECD. The powers that the WED grants to these agencies are: (i) the power to seize objects and to demand the handing over of such objects (Article 18); (ii) the powers to inspect records and documents (Article 19); (iii) the power to enter premises (Article 20); (iv) the power to weigh, measure and take samples (Article 21); and (v) the power to control goods and vehicles (Article 23). The Dutch legislator, following the Dutch Supreme Court,45 has determined that the investigation powers of the WED are not bound to the reasonable suspicion criterion. Therefore they may be used also against a person against whom there is not yet a reasonable suspicion in the sense of Article 27(1) CCP.46 The threshold is that these powers should be used in the interest of investigation.

41

CCP, Arts 126–26f. CC, Art 36e. 43 CPM Cleiren, JF Nijboer (eds), inleidende opmerkingen bij WED, aant. [note] 1b, Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 2002. See also A Mulder, DR Doorenbos, Schets van het economisch strafrecht, vol 11, 7th edn (Deventer, Kluwer, 2008) 99. 44 WED, Art 17; CCP, Art 141. 45 HR 9 March 1993 NJ 1993, 633. 46 See section A5 below. 42

General Aspects of the Procedure 103 Article 142 CCP serves as a link between the CCP and those special acts which provide investigative powers to the extraordinary investigative officers.47 Therefore, the Fiscal Information and Investigation Service and Economical Supervisory Service (Fiscale Inlichtingen- en Opsporingsdienst en Economische Controledienst—FIOD-ECD) possesses all the investigative powers of the CCP. In addition to those powers, the FIOD-ECD may also use the investigative powers of the WED, which are broader than those of the CCP.48 However, the supplementary investigative powers of the special acts, in this case the WED, may be used exclusively for the investigation of the criminal offences contained in those acts.49 The Public Prosecutor’s Office is responsible for supervising and leading the investigations, including investigations into financial criminal offences. With the coming into force of the Special Investigative Agencies Act on 1 June 2007 there is a legal basis for the establishment of the so-called functioneel parket.50 This is a national entity within the Public Prosecutor’s Office which in practice has been functioning since 2003 and is responsible for supervising and leading the investigators of the Special Investigative Agencies like FIOD/ECD.

5. The Status of the Suspect/Accused Article 27 CCP defines who can be considered as a suspect. Article 27(1) CCP contains a substantive criterion regarding the definition of the suspect: facts and circumstances should lead to a reasonable suspicion that someone is guilty of a punishable act. First of all, there should thus be a reasonable suspicion. This suspicion should be as objective as possible. The criterion of facts and circumstances is seen as a safeguard for the objectivity of the reasonable suspicion. A general suspicion is not sufficient. Facts and circumstances could include witness testimony or the experience of the investigating officer.51 However, the fact that police officers saw a person running from a bar which was known to them as a gathering place for drug dealers does not lead to a reasonable suspicion of a punishable act.52 A simple intuition is also not sufficient. A reasonable suspicion can be based on well-known facts as well.53 An anonymous tip which is not supported by any other fact or testimony will also not be enough for a reasonable suspicion.54 The bottom line is thus that the reasonable suspicion is based on concrete facts and is not dependent solely on the inner judgment of the investigative officer. The judge can thus in a later stage easily control the reasonability and objectivity of the suspicion if it is based on concrete facts and circumstances. The other criterion of Article 27(1) CCP is that there is a reasonable suspicion that someone is guilty of a punishable act. The guilt does not refer here to the dolus or culpa as such, but to the fact that the relevant persons can be reasonably suspected of having

47 48 49 50 51 52 53 54

See section A2 above. A Mulder, DR Doorenbos, Schets van het economisch strafrecht, 6th edn (Deventer, Kluwer, 2002) 89. Knigge, Kwakman (n 39) 128. Wet RO (Act on the Organisation of the Judiciary), Arts 134(1)(d) and 137a. HR (Supreme Court) 6 December 1983 NJ 1984, 442; HR (Supreme Court) 20 March 1984 NJ 1984, 549. Hof Amsterdam (Appeal Court Amsterdam) 3 June 1977 NJ 1978, 601. HR (Supreme Court) 28 May 1985 NJ 1985, 876. Hof Gravenhage (Appeal Court Gravenhage) 25 January 2007 NbSr 2007, 303.

104 The Netherlands committed the punishable act. Following the principle of substantive legality the relevant act should be punishable by law at the moment when it is committed.55 According to Article 27(2) CCP a person who is being prosecuted or even tried is still a suspect. The Dutch legislator has thus chosen to make no differentiation in the terminology. The reason for this seems to have been the presumption of innocence. In this way a clear message is given to the public: even though someone is standing trial, he is still suspected of being guilty of a punishable act. The word ‘accused’ bears a heavier connotation in this context. However, the position of the suspect differs, depending on the phase of the proceedings. The more advanced the proceedings are, the more safeguards the suspect has.56

B. INVESTIGATION MEASURES

1. Interrogation of the Suspect in Pre-Trial Proceedings Once a suspect has been detected,57 the police will try to interrogate him/her. This can be done either pursuant to arrest, or without arresting the suspect. In practice the coercive means of arrest is not applied often because of the often cooperative attitude of the suspects. The police may request the suspect to appear at the police station for interrogation, but the suspect is not obliged to agree to such a request. This paragraph seeks to discuss the rules applicable to the interrogation of the suspect, regardless of whether he/she has been arrested or not. The rules of interrogation are independent of the whether the suspect is arrested or not. The police who are responsible for the bulk of the investigation may pose questions to anyone who has any knowledge of a certain offence. A suspect may be questioned for all types of offences, regardless of their gravity. Article 29(1) CCP provides that if a person is interrogated as a suspect he has the right to remain silent. Moreover, the interrogating officers should refrain from exercising pressure on the suspect. This rule is of course applicable also in cases where a suspect is interrogated without arrest. Most of the situations where improper pressure is exercised on the suspect occur during investigations that take place at the police station after the suspect has been arrested. However, improper pressure can occur arise in situations where the suspect is interrogated without being arrested. One classical example is promises made by the interrogating officers that the suspect will get a minimum (or diminished) penalty if he agrees to confess. This can lead to untrue or unreliable confessions.58 Article 29(2) contains the duty to caution the suspect about his right tot remain silent. The duty to caution the suspect applies whenever the suspect is interrogated. The Dutch Supreme Court has defined the interrogation as any question posed by an interrogating officer to a suspect about his/her involvement into a punishable act.59 The threshold of the reasonable suspicion of Article 27(1) CCP, as discussed above 55 E Sikkema, ‘aant. [note] 7.1 op Art 27 (suppl. 169, oktober 2008)’ in AL Melai, MS Groenhuijsen et al (eds) Het wetboek van strafvordering (Deventer, Kluwer, ‘losbladig’). 56 E Sikkema, ‘aant. [note] 3.7 op Art 27 (suppl. 169, oktober 2008)’ in AL Melai, MS Groenhuijsen et al, Het wetboek van strafvordering (Deventer, Kluwer, ‘losbladig’). 57 See section A5 above for the concept of suspect. 58 See eg JAW Lessing, Het verhoor van de verdachte in strafzaken (Arnhem, Gouda Quint, 1988) 169–75. 59 HR (Supreme Court) 2 October 1979 NJ 1980, 243.

Investigation Measures 105 in section A5, plays a very important role in this respect. The interrogating officer who has such a reasonable suspicion should administer the caution as soon as he starts interrogating the person concerned. The criterion of reasonable suspicion plays an important role during the hearing of the case in the court room, in the event that the suspect claims that the interrogating officer administered the caution too late, after the reasonable suspicion arose. The judge can thus on the basis of objective facts and circumstances decide at what point there was a reasonable suspicion. The subjective perception of the interrogating officer is thus not decisive.60 From that point on, the interrogating officer should have administered the caution before any interrogation begun. It is of course not a problem if the interrogating officer administers the caution before there is a reasonable suspicion, because the suspect can make use of his right to remain silent at an early stage.61 However, the case law shows that the courts do not accept very easily that a person was a suspect when general questions, such as questions concerning the contents of a plastic bag, are posed to a person known to the police for his previous convictions.62 Article 29(3) CCP requires that the statements of the suspect, and especially any confession made by him/her, are recorded with the utmost accuracy in the so-called procesverbaal. The record should also contain the administration of the caution. The purpose of Article 29(3) CCP is to guarantee that the statements of the suspect are recorded in the words of the suspect and not according to the perceptions of the interrogator. However, in practice it the investigative officers have the tendency to record the statements of the suspect in such a way as to facilitate the construction of evidence in the indictment. This goes of course contrary to the purpose of Article 29(3) CCP.63

2. Interrogation of Witnesses in the Investigation Phase The police may in principle interrogate witnesses as soon as an investigation has started. As we saw above,64 the definition of investigation in the Netherlands reads as follows: investigation is any inquiry in relation to punishable facts, under the authority of the public prosecutor, and with the view (purpose) of taking decisions in criminal proceedings. The commencement of investigation is not linked to any degree of suspicion. Therefore, for investigations conducted by the police, there no degree of suspicion is necessary for interrogating witnesses. Things are different if there is a judicial investigation. The judicial investigation may be requested by the prosecutor if he deems it necessary to have a judicial investigation opened in relation to a concrete criminal offence. The written request of the prosecutor should also specify the offence and should describe it as accurately as possible. If the identity of the suspect is known to the prosecutor, then the request for a judicial investigation should also specify who the suspect is.65 This means that if a judicial investigation has commenced, there is at least a reasonable suspicion that an offence has been 60

HR (Supreme Court) 22 June 1931 NJ 1931, 1602. Lessing (n 57) 188. 62 HR (Supreme Court) 29 September 1981 NJ 1982, 258 (the so called ‘plastic groceries bag’ case). See also HR (Supreme Court) 18 October 1988 NJ 1989, 479; HR (Supreme Court) 31 October 1989 NJ 1990, 258. 63 TNBM Spronken, ‘Artikel 29 SV, aant. [note] 6’ in CPM Cleiren, JF Nijboer (eds), Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 92. 64 See section A2 above. 65 CCP, Art 181. 61

106 The Netherlands committed.66 In this sense the degree of suspicion necessary for the investigative judge to interrogate witnesses is that there should be at least a reasonable suspicion that a criminal offence has been committed. It should be noted from the outset that during the investigation conducted by the police, under the CCP, witnesses are not obliged to answer any questions and therefore there is no need to impose any restrictions during these kinds of investigations. However, things are different under a judicial investigation. Article 221(1) provides that if the witness refuses without any legitimate reason to cooperate with the investigative judge (ie, refuses to answer questions) then he can be committed to prison for contempt. This implies that in principle, the witness is obliged to cooperate with the investigative judge. Moreover the witness is also obliged to testify nothing but the truth pursuant to Article 215. In line with this, Articles 217–19b contain provisions on privileged witnesses. Article 217 grants an excuse to testify to certain categories of family members and blood relatives of the suspect. In this respect the legislator has given priority to the protection of family bonds. Article 218 grants an excuse to testify to those professionals who have a duty of confidentiality. Lawyers are one of the categories of those professionals.67 According to Article 219, a witness has the specific right not to answer questions which will incriminate him or his family relatives. The categories of family relatives are the same as those indicated in Article 217. Moreover, if a witness has been involved in the questioning of a threatened witness, because of his/her office or profession, then he/she may refuse to answer questions which may reveal the identity of the threatened witness (Article 219a). If a witness has been involved in the questioning of an anonymous witness, because of his/her office or profession, then he/she may refuse to answer questions related to that anonymous witness. Special and detailed rules apply to threatened witnesses (Articles 226a–26f), witnesses who are suspects or convicted and on whom a promise is made for a diminished sentence (kroongetuige) (Articles 226–26k) and anonymous witnesses (Articles 226m–26s).

3. Invoking the Assistance of Experts to Examine Clues etc. During the Pre-Trial Phase The assistance of experts in the pre-trial phase is regulated in CCP, Articles 150a–50c and during a judicial investigation in Articles 227–32 and 236. No special degree of suspicion is required for invoking the assistance of experts in the pre-trial phase. The only requirement is that the expert is appointed in the interest of the investigation (Articles 150a and 227). The assistance of experts may be invoked for the investigation of any offence. As a rule, experts should be registered in the Netherlands Register of Judicial Experts, and only registered experts should be appointed. Only in exceptional cases may an unregistered expert be appointed. In such a case the decision to appoint an unregistered expert should be motivated and in particular should indicate the grounds on which such a person qualifies as an expert (Articles 51k and 227(2)). An expert may be appointed either by the prosecutor, on his own initiative, or at the request of the suspect, or by the judge, on his own 66 AE Harteveld, ‘Artikel 181 SV, aant. [note] 3, 4’ in CPM Cleiren, JF Nijboer, Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 822. 67 Corstens (n 15) 146.

Investigation Measures 107 initiative or on the request of the suspect or of the prosecutor. If the expert is appointed by the judge, including the investigative judge, then he has a duty to provide the services that are required of him. However, if the expert is appointed by the prosecutor, he may refuse to cooperate. It should be kept in mind that the prosecutor may always resort to the investigative judge and request the appointment of an expert by him (CCP, Article 227(1)).

4. Coercive Means of Investigation The coercive means of investigation are regulated in Book I, Titles IV of the CCP. These powers may be used by citizens, investigators (ie, police and prosecutor) and judges. The only coercive measure that citizens are empowered to use is the arrest of the suspect in flagrante delicto pursuant to CCP, Article 53. The other coercive means, such as nonflagrante delicto arrest of the suspect, search and seizure, freezing, pre-trial custodial detention (inverzekeringstelling), or detention on remand (voorlopige hechtenis), are allocated to investigating authorities and/or the judge. The general principle is that the more coercive the means of investigation, the higher the authority should be which is so empowered. The same principle applies to the conditions applicable for the use of the coercive means: the more far-reaching the coercive means, the stricter the conditions for their use. Pre-trial custodial detention, for example, which is much briefer than any form of detention on remand, can be ordered by an auxiliary to the prosecutor or the public prosecutor,68 but its prolongation can be ordered only by the public prosecutor.69 Detention on remand, on the other hand, may be ordered only by a judge.70 Moreover, the law requires only one ground for pre-trial custodial detention, namely the interests of investigation,71 whereas CCP, Article 67a stipulates several (stricter) grounds for detention on remand.72 The same system can be observed with respect to searches and seizures. If a private home has to be searched in order to seize certain objects in that home, and the occupant of the home refuses to grant entrance, then the only authority which can order entry into the home is the investigative judge. The public prosecutor or his auxiliary may order entry into private premises without the permission of the investigative judge, but only in urgent situations and pursuant to a warrant by the investigative judge. Premises other than a home may be searched by order of the public prosecutor or his auxiliary.73 What follows is a brief discussion of some of the most important coercive means of investigation. (a) Arresting the Suspect and Detention for Questioning A suspect may be arrested for interrogation when caught red-handed. This measure is regulated in CCP, Article 53. CCP, Article 54 requires that there should be a reasonable suspicion that someone is guilty of a punishable act in the sense of CCP, Article 27(1) 68

CCP, Art 57(1). CCP, Art 58(2). 70 CCP, Arts 63–66. 71 CCP, Art 57(1). The interests of investigation are fulfilled in cases where the suspect is taken into pre-trial custody for the purpose of further interrogation, or in order to be confronted with witnesses or for the identification or verification of identity of the suspect. 72 The grounds required by CCP, Art 67a are: absconding, recidivism and public disorder. 73 Corstens (n 15) 374. 69

108 The Netherlands (see section A.5. above). A suspect may be arrested for interrogation also in cases where he is not caught red-handed. Once arrested, the suspect may be detained for a short period of time for questioning (CCP, Article 61 ophouden voor onderzoek). The degree of suspicion necessary for the detention is the same as that for arrest, because arrest is a precondition for this measure. If caught red-handed the suspect may be arrested for any type/gravity of offences. Otherwise the suspect may be arrested for interrogation only for offences for which detention on remand is allowed (Article 54(1) CCP). Article 67 CCP stipulates a criterion for detention on remand that the offence is punishable with a prison sentence of at least four years. A list of other offences is inserted in Article 67, which are not punishable with a sentence of at least four years’ imprisonment but which may nevertheless give rise to detention on remand. Article 67(2) provides that detention on remand may also be imposed on a suspect who does not have a permanent residence in the Netherlands, and who is suspected of an offence that is punishable with imprisonment. After arrest the suspect may be detained not only for questioning but also for other purposes, such as to determine his/her identity or to issue declarations or statements concerning the case to the suspect in person. In case the suspect is detained for the purpose of identification, then certain measures can be imposed on him. These measures are listed in CCP, Article 61a(1) and concern the making of pictures, videos or body measurements, taking of fingerprints, confrontation with the victim or witness, identification through smell (by a trained dog), shaving, cutting or allowing for the growing of a moustache, beard or hair, putting on certain clothes or attribution for the purpose of confrontation, placement in an observation cell and research on gunshot residues on the body. All these measures, except for the making of pictures, videos or body measurements and the taking of fingerprints, may be imposed only if there is a reasonable suspicion of an offence for which pre-trial custodial detention is allowed (see the next section for pre-trial custodial detention). (b) Pre-Trial Custodial Detention Pre-trial custodial detention is regulated in CCP, Articles 57–59c. Once arrested, the suspect may be taken into custodial detention (Article 57 inverzekeringstelling). The degree of suspicion necessary for the detention is the same as that of arrest because arrest is a precondition for this measure (see the previous subparagraph). Thus, for the application of this measure it is necessary that there is a reasonable suspicion that the person detained is guilty of a punishable act in the sense of CCP, Article 27(1) (see section A.5. above). CCP, Article 58(1) stipulates that pre-trial custodial detention may be imposed only for offences for which detention on remand is allowed (see the previous section for the definition of the offences for which detention on remand is allowed). It is however not necessary that the suspect is placed in custodial detention for the same facts that he was arrested.74 Pre-trial custodial detention may be imposed for a maximum of three days, and this period may be extended for a further three days only if there is an urgent necessity (CCP, Article 58(2)). One day implies here a 24 hours. The possibility of extension should not be

74 EF Stamhuis, ‘Artikel 54 SV, aant. [note] 4’, in CPM Cleiren, JF Nijboer, Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 253.

Investigation Measures 109 seen as automatic. The prosecution should try to round off the case in the first three days of custodial detention. If within the first three days it is clear for example that detention on remand will be requested, than there is no reason for the prosecutor to ask for an extension of the custodial detention.75 (c) Interception of Postal Communications The interception of postal communication, including letters, is regulated by CCP, Articles 100–102 where there is no judicial investigation, and by Article 114 in the case of a judicial investigation. The degree of suspicion required is that there should be a flagrante delicto, or a reasonable suspicion that a punishable fact has been committed.76 The measure can be applied for any type/gravity of offences in case of a flagrante delicto. Otherwise the reasonable suspicion should concern an offence for which detention on remand is allowed. The measure may be applied only to postal communication which manifestly originates from the suspect, or is intended for the suspect or relates to him, or is the object of the offence or has served for the commission of the offence (Article 100(1)). The postal communication may in the first place be seized. If the executing officer decides not to seize the communication, then he should return it without delay to the transporting company (person) from whom the communication was taken (Article 101(1)). If the communication is seized and opened, then it should be either included in the case file, or sent back to its destination after being resealed (Article 102(1)). The latter might happens if upon scrutiny of the contents it is clear that the communication is of no importance to the investigation (Article 102(1)).77 The executing officers owe a duty of confidentiality in relation to those communications which are not included into the case file. There is a duty to cooperate with the authorities for those who possess or will possess postal communication for the purpose of transporting it (Article 100(2)). However those categories of person listed in CCP, Articles 217–19, including lawyers, are excused from this duty. Moreover, the public prosecutor may issue a production order to those persons in whose power/ability it lies to follow the order. The order must be followed; non-compliance with it constitutes a criminal offence (Criminal Code, Article 184). (d) Access to Relevant Premises The power of access to relevant premises conferred under Dutch criminal procedure is not an autonomous power. It may be used only as a supportive coercive power. For example, an investigative officer may access any place for the purpose of seizure (Article 96 CCP). Merely accessing premises, with no further purpose, is thus not allowed. The CCP sets out dozens of situations where relevant premises may be accessed. The conditions of access will then depend on the purpose of access.

75

Ibid, 254. CCP, Art 100(1), see also CCP, Art 114(1) for the judicial investigation which declares Art 101 applicable mutatis mutandis. 77 Items that are included in the case file and which are of importance for the file are items which contain information/evidence both against and in favor of the suspect. See for example HR (Supreme Court) 7 May 1996, NJ 1996, 687; HR (Supreme Court) 20 June 2000, NJ 2000, 502. 76

110 The Netherlands Article 12(1) of the Dutch Constitution requires that the power to access premises is regulated by law, and that only those persons who are empowered by law may access premises. Article 12(2) of the Constitution requires that persons empowered to gain access must identify themselves before doing so. Exemptions to this are allowed only by law ... There are special and stricter rules with respect to access to a house without the permission of the occupant of the house. Article 2 of the General Act on Access to Premises (GAAP) requires that an investigative officer may enter a house only if he has written authorisation to do so from a higher authority. Judges or prosecutors do not need an authorisation to enter premises (Article 2(1)). It is not necessary that the whole body of an investigator access the house; access can occur also if only the arm of the investigator has accessed the house.78 The question of whether a premises is a house at the time of access is ultimately decided by the trial judge on the basis of the evidence presented during the trial.79 An authorisation to access a house is not needed in case of emergency (GAAP, Article 2(3)). A classic example of an emergency is for instance if an armed suspect enters a house during pursuit and takes hostage the occupants of the house, or if there are grounds to believe that hostage-taking will occur. The authorities who are empowered to issue an authorisation are the public prosecutor at the Court of Appeal, a public prosecutor at a district court, or an auxiliary to the public prosecutor (GAAP, Article 2(1)). During night-time a house may be accessed without the permission of the occupant or in case of his absence only between midnight and six o’clock in the morning. There should be an urgent necessity and the authorisation should expressly provide for such access (GAAP, Article 7). (e) Search and Seizure The power of search (premises) is not an autonomous power. It may be exercised only to support other powers, such as seizure, arrest or to secure/capture (computer) data. Therefore, the degree of suspicion necessary for exercising the power of search depends on the purpose for which this power is to be used. Body searches (including clothing) may be applied only against an arrested suspect against whom a serious (thus more than reasonable) suspicion exists (CCP, Articles 56(1)(2)(4) and 195(1)(2)). Serious suspicion means that the probability that the suspect has committed the punishable act is much higher than in the case of a reasonable suspicion.80 The power to seize is generally regulated in CCP, Article 96 and it may be applied in various situations and in different places. However, the degree of suspicion contained in Article 96 serves as a threshold, and is repeated in all the situations where seizure may take place, save for a few exceptions. According to Article 96, there should be a flagrante delicto or a reasonable suspicion that a criminal offence has been committed. This degree of suspicion is also needed when places or means of transportation 78

HR (Supreme Court) 7 February 1956, NJ 1956, 147. HR (Supreme Court) 19 June 2001, NJ 2001, 574. 80 See for a good analysis AM Kengen, ‘Ernsitge bezwaren als vereiste voor fouillering’, in JP Balkema et al, Dynamisch strafrecht (Arnhem, Gouda Quint, 1995) 191–201. Serious suspicion existed in a case where the head of a police corps was aware that large quantities of drugs were used and sold in a youth centre. This was confirmed by a number of police officers at the night in question, and later on one of these police officers had pointed out the suspect as one of the persons who had drugs in his possession. See HR (Supreme Court) 14 January 1975, NJ 1975, 207. 79

Investigation Measures 111 have to be searched in order to seize (CCP, Articles 96b, 96c, 97, 110) or in order to secure/ capture (computer) data (CCP, Article 125i(1)). The arrest of the suspect is a precondition for body search (including clothing). Therefore, the type/gravity of offences for which this measure may be applied is the same as that of the arrest. The search and seizure concerning premises requires a flagrante delicto situation, thus any type of offence or a reasonable suspicion that an offence is committed for which detention on remand is allowed. The same applies to searches for the purpose of securing/capturing (computer) data (CCP, Articles 96b, 96c, 97, 110 and 125i(1)). The Economic Offences Act (WED) sets out certain special powers for investigation into economic/financial crimes. Article 18 contains the power to seize objects and to demand the handing over of such objects (production order). A special power to inspect records and documents is found in Article 19, by which investigators are empowered to copy those records and documents, and if this is not possible at the location where those records and documents are found, then they can take them away for a short period for copying, but only after a receipt has been issued. Article 21 contains the power to weigh, measure and take samples. The investigators may open sealed packages, and if the sample cannot be taken at the place where it is located, then the object may be taken away for a short period of time, again only after a receipt has been issued. If possible the samples are given back and the stakeholder is informed at his request as soon as possible about the results of the examination of the sample. The power to search vehicles/ships/aeroplanes etc, and to examine/ inspect their cargo is contained in Article 23. The investigator may demand to inspect the cargo manifest or other documentation, and he may order the driver/pilot/captain to stop the vehicle in order to bring it to a place indicated by the officer. These powers may be used if there are indications—note: not a reasonable suspicion—that an economic regulation/ provision is not being complied with. Furthermore there is a duty to cooperate, including the suspect (WED, Article 26).

5. Special Investigative Powers Apart from the coercive measures discussed above, the CCP contains other investigative powers, the so-called special investigative powers. These powers were introduced to the CCP with the coming into force of the Special Investigation Powers Act,81 which was a result of a Parliamentary inquiry into the use of investigation methods in the context of organised crime. The report of the commission in charge of the inquiry, which was given the name of its chairman, Van Traa, revealed that a number of far-reaching investigation methods were used without any statutory basis.82 Book I, Titles IVA–VD provide a legal basis for the use of certain investigative powers, such as infiltration, controlled deliveries, interception of telecommunication (including e-mail and internet), monitoring of telecommunication traffic data, surveillance in public and private spheres, front stores, etc. The conditions for use of these powers differ depending on the context in which they are used. The investigative authorities can use the special investigative powers in the event of a reasonable suspicion that a criminal offence has been committed (the so-called classic 81 See for a general overview of this Act Y Buruma, Buitengewone opsporingsbevoegheden, 2th edn, vol 34 (Deventer, Tjeenk Wilink, 2001). 82 Kamerstukken 196–1997, 24072, nr 10–20.

112 The Netherlands investigation). They can also use special investigative powers in case of a reasonable suspicion that offences are being designed or are being committed within a criminal organisation (the so-called proactive investigation). An Act on the Widening of the Possibilities for the Investigation and Prosecution of Terrorist Offences, passed on 1 February 2007, made it possible that the same investigative powers may be used if there are indications that a terrorist offence has been or will be committed. The threshold is thus indications, which is a much lower degree of suspicion than reasonable suspicion.83 What follows is a brief discussion of some of the most important special investigative powers.

(a) Interception of the Contents of Telecommunication This power is regulated in CCP, Articles 126m (classic investigation), 126t (proactive investigation), and 126 zg for terrorist cases. This measure includes also the contents of e-mail flowing and the so-called on-line searching of computers.84 As mentioned above, the degree of suspicion required for the use of this measure depends on the context in which the measure is deployed. The classic investigation requires a reasonable suspicion that a criminal offence for which detention on remand is allowed has been committed. Moreover, the particular suspected offence should also constitute a serious breach of the legal order. The proactive investigation requires a reasonable suspicion that offences (felonies) are being designed or are being committed within a criminal organisation and that these offences should also constitute a serious breach of the legal order. Terrorist cases require indications (thus not a suspicion) that a terrorist offence has been or will be committed. Certain important restrictions apply with respect to this power. The telephone of professionally privileged persons, including lawyers, may not be tapped. This has been established in the case law of the Supreme Court.85 This exception is not applicable if the privileged person is a suspect in the case.86 The contents of telecommunications intercepted by means of these measures may be kept for a limited period of time. CCP, Article 126cc provides that intercepted items of communication which are not included in the case file may be kept for a period of two months after the case has ended, or after the last notification to the persons concerned is made. The ratio of these provisions is first of all to protect the private life of all the persons concerned, including third parties affected by the measure.87 In this way the suspect or other parties/persons may check whether the application of the measure was not justified, or in the case of the suspect, whether the information should be included in the case file. After the two-month period the information should be destroyed. (b) Monitoring of Telecommunication Traffic Data This power is regulated in CCP, Articles 126n, 126na (classic investigation), 126u, 126ua (proactive investigation), and 126zh and 126zi (terrorist cases). Articles 126n, 126u and 83 84 85 86 87

I Peçi, E Sikkema (n 11) 354–55. Corstens (n 15) 450. HR (Supreme Court) 10 April 1979, NJ 1979, 439. HR (Supreme Court) 29 June, 1993, NJ 1993, 692 CCP, Art 126aa(2). Kamerstukken II 1996–1997, 25403, nr 3, p 86.

Investigation Measures 113 126zh concern the monitoring of telecommunication traffic data such as the date and time of (telephone) connections or attempts to get connected, the data concerning the location of the phone (connection), the telephone numbers dialled, the duration of telephone calls, the location from which a telephone call with a mobile telephone is made.88 Articles 126na, 126ua and 126zi relate to user data such as the name, address, residence, the number and the type of service of user of a communication service. (c) Surveillance in Public and Private Spheres The rules on surveillance include also the rules of tracing and tracking of persons and objects. The latter is a special form of surveillance. No special investigative power is needed for incidental surveillance which occurs in public and which does not constitute a breach to the right to private life as guaranteed by ECHR, Article 8 and Article 10 of the Dutch Constitution. In such cases the general provisions on the tasks of the police under the Police Act Article 2 provide for a sufficient legal basis.89 The same may be said for the surveillance of objects which are not connected to a person. If, however, the object is connected to a person, or the object is observed in order to gather information about a person (eg, a car in which the suspect is travelling), then the general provisions of Police Act Article 2 are not sufficient and a special investigative power is required. The systematic surveillance of persons (or objects connected to a person, or which are observed in order to gather information about a person) requires a special investigative power. Systematic surveillance may be defined as that form of surveillance which provides a more or less complete picture of certain aspects of someone’s private life.90 The systematic surveillance is regulated in CCP, Articles 126g (classic investigation), 126o (proactive investigation) and 126 zd(1)(a) for terrorist cases. Article 126g applies to any felony. Article 126o requires an offence for which detention on remand is allowed and which constitutes a serious breach of the legal order. Article 126zd(1)(a) requires indications that a terrorist offence has been or will be committed. As already noted above, the rules on systematic surveillance include the rules of tracing and tracking of persons and objects through technical devices. The public prosecutor may decide that a technical device may be used in exercising this measure. Technical devices (eg, a transmitter) may not be placed on a person without his/her permission, but only on objects (which can ‘travel’ together with a person, eg, suitcases) (CCP, Articles 126g(3), 126o(3) and 126zd(4)). Controlled deliveries may fall under the realm of surveillance if the investigative authorities have no influence on the delivery (eg, through infiltration) and limit themselves to observation.91 (d) Infiltration Infiltration is regulated in CCP, Articles 126h (classic investigation), 126p (proactive investigation) and 126ze for terrorist cases. The classic investigation in case of infiltration

88

Corstens (n 15) 448. HR (Supreme Court) 19 December 1995, NJ 1996, 249; HR (Supreme Court) 18 May 1999, NJ 200, 407; see also HR (Supreme Court) 14 October 1986, NJ 1988, 511. 90 Y Buruma, ‘Stelselmatig—een sleutelbegrip in de Wet Bijzondere Opsporingsbevoegdheden’, NJCM-Bulletin 2000, 649–58. 91 Corstens (n 15) 465. 89

114 The Netherlands requires a reasonable suspicion that a criminal offence for which detention on remand is allowed has been committed. Moreover, the particular suspected offence should also constitute a serious breach of the legal order. Article 126p requires an offence for which detention on remand is allowed and which constitutes a serious breach of the legal order. Article 126ze requires indications that a terrorist offence has been or will be committed. In the context of infiltration the so-called Tallon-criterion applies.92 The executing officer may not inflict (cause) a person to commit an offence other than the one he/she intended to commit before the involvement of the undercover officer (CCP, Articles 126h(2), 126p(2) and 126ze(2) in conjunction with 126h(2)). Infiltration may also take place through the use of citizens as undercover (CCP, Articles 126w, 126x and 126zu). The degree of suspicion and the type and gravity of offences are the same. The use of citizens in infiltration operations may be used only if the use of an investigative officer is not possible and the interests of investigation urgently requires such a measure (the subsidiary principle) (CCP, Articles 126w(2), 126x(2) and 126zt(2)). Controlled deliveries may fall under the realm of infiltration if undercover agents or citizens under the instructions of the prosecutor or police are involved in the delivery. In such cases all the legal rules on infiltration should be respected.93 Where the infiltration concerns an undercover officer, the prosecutor must give an order. The order is given to an investigative officer; it should be written, and in the case of classic investigation should contain the following elements (CCP, Article 126h(3)): (a) the felony, and if known, the name of the suspect, or as accurate as possible a description of him/her; (b) a description of the group of persons where the infiltration will take place; (c) the facts and circumstances, indicating that the requirements for the application of the measure are fulfilled; (d) the way that the measure will be applied, including the punishable acts that are allowed to be committed, in so far as they can be foreseen at the moment the order is given; (e) its duration. In case of proactive investigation the order should contain a description of the organised crime context and the elements described in points c, d and e above (CCP, Article 126p(3)). In terrorism cases, the order should contain the terrorist offence and the elements described in points b to e above (CCP, Article 126ze(3) in conjunction with Article 126za(2)). In case of citizen infiltration there is no order but an agreement between the prosecutor and the citizen. The agreement should contain the elements described above for the infiltration of an investigative officer. In addition to that the agreement should also contain the duties and the rights of the citizen during the infiltration. The order given to the investigative officer and the agreement made with the citizen should contain the criminal offences that they are (or are not) allowed to commit, in so far as these are foreseeable. The order and the agreement serve as grounds for exemptions from

92 93

HR (Supreme Court) 4 December 1979, NJ 1980, 356. Corstens (n 15) 465.

Investigation Measures 115 criminal liability. Moreover, the agreement or the order may be supplemented if it becomes clear that it is inevitable that crimes will be committed. The principle of trust in the promises made by the authorities and the power of the prosecutor to refrain from prosecution may also be a solution to crimes committed during the infiltration operation by the investigator or the citizen.

6. Monitoring of Bank Transactions The rules on monitoring of bank transactions are found on the Prevention of Money Laundering and the Financing of Terrorism Act (PMLFTA). These rules concern a duty to report unusual transactions in the context of money laundering and financing of terrorism. Their purpose is to provide for a better legal basis in preventing and fighting money laundering and the financing of terrorism. In that context, special rules establish a duty for certain institutions and persons to report unusual (bank) transactions that may bear some relation to money laundering and/or the financing of terrorism. The institutions and persons concerned are listed in PMLFTA, Article 1(a) and they cover a wide range of (financial, investment) institutions and persons including lawyers and notaries. They should report all kinds of unusual transactions to the Financial Intelligence Unit—Netherlands (FIU—Netherlands). This Unit was created in 2006 and is currently an independent and autonomous entity within the Department of International Police Information (Dienst IPOL) of the Netherlands Police Agency (KLPD). The detailed tasks of FIU—Netherlands are set out in PMLFTA, Article 13. Generally speaking, FIU—Netherlands may be described as a unit which gathers and analyses information on unusual transactions, provides for specialised intelligence to the law enforcement authorities, and which researches and informs stakeholders on trends of money laundering and financing of terrorism etc. Detailed rules on indicators which will help the institutions and persons concerned to identify the unusual transactions are laid down in an administrative normative act.94 The institutions and persons concerned have a duty to report, which means that intentional negligence to do so is punishable. Moreover, the FIU—Netherlands may ask for further information. The PMLFTA respects the nemo-tenetur principle, because information which is provided as a consequence to the duty to report may not be used as a basis of or for a criminal investigation or as evidence in criminal proceeding for money laundering or financing of terrorism against the institution or person who provided that information (PMLFTA, Article 19(1)(3)).

7. Production Orders Production orders can be found in several places in the Criminal Code of Procedure. The public prosecutor can order the production of letters, messages and packages by any holder of such messages other than the suspect, if those are sent by or to the suspect or have any role in committing the criminal act.

94 Uitvoeringsbesluit Wet ter voorkoming van witwassen en financieren van terrorisme (Implementing decision Law on Prevention of money laundering and financing of terrorism).

116 The Netherlands Any investigative officer can order a person, other than the defendant, to produce any good that could also be seized (CCP, Article 96a in connection with Articles 94 and 94a). The investigative judge can order a person other than the suspect to produce any good that could also be seized (CCP, Article 105). Other laws contain similar powers, such as Article 18 of the Economic Offences Act (Wet economische delicten). The Special Investigation Powers Act (Wet bijzondere opsporingsbevoegdheden), introduced additional provisions to the Criminal Code of Procedure concerning production orders. Some of these powers (CCP, Articles 126n, 126na, 126u, 126ua, 126zh, 126zi) are given in the context of monitoring telecommunication traffic data. Other powers on production orders in this context concern data, including information on bank account numbers, for identification of a person (CCP, Articles 126nc, 126uc, 126zk). Production orders can be also issued with respect to data other than those for the identification of a person (CCP, Articles 126nd, 126ud, 126zl). The information gathered with these production 95 orders may concern among other bank transactions made during a given time period. A production order concerning data other than identification data may be issued also for future data (CCP Articles 126ne, 126ue, 126zm). In such cases the production order may be issued for a period of four weeks, which may be extended for another four weeks. The production orders mentioned here may not be given to a suspect.

8. Data Mining and Profiling Data mining and profiling are deployed for a wide range of purposes in the Netherlands, and the data is collected in a wide range of situations. The activities which fall under the realm of data mining and profiling may take place throughout the whole criminal procedure. One of the central concepts in the regime of data mining and profiling is that of ‘data processing’, found in the Police Data Act. This Act, together with the Protection of Personal Data Act, seeks to fulfil the requirements stemming from the privacy legislation such as Article 8 ECHR and Article 10 Dutch Constitution, which requires that breaches of private life may by legitimised only by law. Article 1(c) of the Police Data Act defines the concept of ‘data processing’ as any activity with respect to police data such as gathering, securing, organising, preserving, updating, modifying, requesting, consulting, using, comparing, disclosing by transmission, distributing or any other form of posting, assembling, piecing together, deleting or destroying the police data. The data processing may take place only if it is necessary for the goals formulated in the Police Data Act (Article 3(1)). One of these goals is the fulfilment of the daily police task (Article 8). This includes basic police activities such as street patrolling or basic detective activities.96 Another goal concerns inquiries with the view to enforcing the legal order in a given situation (Article 9). Within the ambit of this goal falls the more serious police work, such as activities during the use of special investigative powers or exploratory inquiries.97 Data processing may also take place in 95 T Blom, ‘Artikel 126nd SV, aant. [note] 1’, in CPM Cleiren, JF Nijboer, Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 504. 96 Kamerstukken 2005–2006, 30327, nr 3, p 38. 97 Ibid, p 343. Exploratory inquiries (CCP, Art 126gg) take place in the phase of investigation where there is no reasonable suspicion of a committed crime, or that a crime will be committed. They are conducted as preparatory work and may also be used in order to determine the criminal trends within a group of persons or (economic) operators.

Prosecution Measures 117 order to gain insights in the involvement of persons into serious threats to the legal order (ie, organised crime) (Article 10 Police Data Act). This concerns the building-up of information positions of the police without there being an investigation of a concrete criminal offence.98 It may thus be obvious that the scope of the concept of ‘data processing’ is very wide, and covers almost all the tasks of the police. Article 3(2) Police Data Act stipulates that only legally gathered data may be processed. The Police Data Act does not give any power to gather data. That occurs during the investigation or other activities of the police or judicial authorities. A detained suspect for example may have to undergo certain measures during his detention for questioning (ie, photographs, fingerprints, or DNA material are taken for forensic tests,99 or for use by specialised units such as Financial Intelligence Unit—Netherlands, etc). The Police Data Act requires that the responsible authorities set up a detailed and precise system of authorisations for the processing of police data (Article 6). Moreover, the College for the Protection of Personal Data is responsible for the supervision of the proper application of the rules on data mining and in case of non-compliance it may impose an administrative fine on the responsible authorities (Article 35).

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution A criminal case usually starts as a result of reports by private citizens to the police about a certain criminal offence, or as a result of the discovery by the police of facts which lead to a suspicion that a criminal offence may have been committed. In the former case, the report of a citizen is put into the form of a proces-verbaal, which is signed by the investigative officer and the person furnishing the information. We saw above that the decision to prosecute belongs to the public prosecutor.100 This means that the prosecutor has a monopoly to prosecute. Citizens may not prosecute in the Netherlands. The public prosecutor may, on the grounds of the opportunity principle,101 select those cases it will prosecute. Moreover, it is the prosecutor who decides on the nature of the charges and the trial judge is bound by the charges brought by the prosecutor; as a rule the trial judge may not deliberate on charges other than those brought by the prosecutor. This concerns the so-called grondslagleer.102 As mentioned above,103 investigation and prosecution often overlap each other. Since the coming into force of the Public Prosecutor Settlement Act in 2008, the public prosecutor may impose penal orders without the intervention (at first instance) by the court.104

98

Kamerstukken 2005–2006, 30327, nr 3, p 347. DNA Tests of Convicts Act. 100 See section A2 above. 101 Ibid. 102 For a detailed account on the grondslagleer see DH de Jong, De macht van de tenlastelegging in het strafproces (Arnhem, Gouda Quint, 1981). 103 See section A2 above. 104 CCP, Arts 257a–57h. 99

118 The Netherlands The serving of such an order falls also under the realm of prosecution.105 Otherwise, the prosecution takes place through the involvement of the (investigative) judge by the public prosecutor in a criminal case. Such involvement may occur in different ways and at different times.106

2. Unilateral Disposal of the Case Under certain circumstances, criminal acts can be dealt with without starting criminal proceedings. Articles 152 and 155 CCP make it mandatory for police officials to take statements concerning criminal acts, and send these to the public prosecutor in the form of a report (proces verbal). Through that procedure, the decision to prosecute stays with the public prosecutor’s office. Nonetheless, there is case law showing that it has been decided in certain cases, when the prosecutor has not been expected to instigate proceedings, that police officers are not obliged to take the statement and send it to the prosecutor.107 These cases are known as police dismissals (politiesepot). The public prosecutor also has the power to dismiss the case, either conditionally or unconditionally. The conditional dismissal is regulated in CCP, Article 167(2) if there is no prosecution and in CCP, Articles 244(3) and 245(3) if the prosecution has already begun (in the sense that an investigative judge has already been involved in the case; see section A2 above). A conditional dismissal means that the prosecutor may delay the decision to (further) prosecute. In such cases the suspect may speculate that if certain conditions are fulfilled, the prosecutor will dismiss the case.108 Article 167(2) contains a further ground for dismissal: the opportunity principle, also called an informal dismissal. This is an unconditional dismissal and takes place if the prosecution has not yet started (in the sense that an investigative judge has already been involved in the case, see section A2 above). Another form of unconditional dismissal is contained in CCP, Article 242(2). This is called the formal dismissal, and it may occur when a prosecution has already started but the prosecutor decides not to prosecute further. In case of a formal dismissal the prosecutor should inform the suspect of his decision within a certain time period (CCP, Articles 243, 244 and 245). Such a notification must mention the grounds for the decision based on CCP, Article 247(c, d, e). If the prosecutor fails to inform the suspect within the time limits set out by law, then his right to prosecute cease to exist.109 Under the realm of formal dismissal falls also the situation where the prosecutor withdraws the summons in accordance with CCP, Article 266 (possibly with a notification concerning the decision no to prosecute further, Article 266(3)). Withdrawal of the summons is only possible prior to the start of the first court hearing. Once the case is called by a court official, the prosecutor can no longer stop the trial. The trial judge must then hear the case in accordance with CCP, Articles 268–344a and render a verdict in accordance with CCP, Articles 345–66a. If the case is dropped by the prosecution, parties concerned, usually victims or their relatives, can lodge a complaint at the Court of Appeal (gerechtshof) under CCP, Article 12. The

105 106 107 108 109

Corstens (n 15) 117. See also Valkenburg (n 15) 793. For more details on this point as well as the commencement of investigation, see section A2 above. HR (Supreme Court) 31 January 1950 NJ 1950, 668. Corstens (n 15) 532–31. HR (Supreme Court) 29 March 1994 NJ 1995, 10; HR (Supreme Court) 16 September 1996 NJ 1997, 122.

Prosecution Measures 119 Court of Appeal can in turn order either further investigative (ie, if the case was dropped because of lack of evidence) or prosecutorial steps.

3. Multilateral Disposal of the Case and Imposition of a Penal Order Dropping the case or bringing the case to trial are not the only possibilities for the public prosecutor. The public prosecutor also has the power to offer the suspect a so-called transactie, or out-of-court settlement pursuant to CC, Article 74. If the defendant agrees to the settlement, there will be no prosecution if the conditions of the settlement are met by the defendant (usually the payment of a sum of money to the state). The possible conditions are also mentioned in CC, Article 74. The transactie may be offered for any contravention and felonies, with a maximum term of imprisonment of six years (CC, Article 74). The police can also use an out-of-court settlement according to CC, Article 74c: the politietransactie. However, the police may use the transactie mostly for minor offences and traffic violations.110 Transactie will soon be replaced by the strafbeschikking, a decision by the prosecutor to give a penal order pursuant to CCP, Article 257a. Currently, the transactie and the strafbeschikking coexist. The penal order is a criminal sanction and constitutes prosecution. It may be imposed for any contravention and felonies with a maximum imprisonment of six years (Article 257a). The power given to the prosecutor to impose a penal order is also given to police officials or other investigators in accordance with Article 257b. An administrative normative act provides for which types of contraventions Police officers may impose a penal order. The same act also provides for which felonies of a simple nature and with a maximum imprisonment of six years Police may impose the penal order. Only the categories of investigators mentioned in the normative act may impose a penal order (Article 257b).111 The difference between the transactie and the strafbeschikking is that the suspect must agree to the measure when it concerns a transactie. A transactie does not constitute prosecution. Once the terms of the transactie are accepted by the suspect, he may not challenge it before a court of law. A strafbeschikking is simply imposed and the suspect may then challenge the decision before a court of law if he does not agree with it (CCP, Articles 257e257f). A suspect cannot protest against a transactie once he has agreed with the conditions of the settlement. If the suspect does not adhere to the conditions, the public prosecutor will initiate criminal proceedings in which the defendant can defend himself before a court of law. CCP, Article 552ab(1) provides the option to interested third parties (thus not the suspect) to lodge a complaint with the district court about the out-of-court settlement or the penal order. The subject of the complaint is objects or property rights which are affected by the measure. A precondition of the complaint is that interested parties should first request the prosecutor to restore the affected rights or objects. They may use the possibility of Article 552ab(1) in case the prosecutor refuses to do so. Moreover, interested third parties, ie, the victim or his/her relatives, may complain against the decision to prosecute through a penal order or against an out of court settlement, pursuant to CCP, Article 12.

110 111

Transactiebesluit 9 May 1994. Besluit Om-afdoening, 4 July 2007, Stb 255.

120 The Netherlands 4. Reopening a Case In principle it is not possible to reopen proceedings in a dropped case if a penal decision is taken or a decision not to initiate proceedings is communicated to the suspect (CCP, Article 255), unless new objections have risen against the suspect. Proceedings can also be initiated (and thus sometimes reopened) if there is a court order to prosecute through the CCP, Article 12 procedure, if a notification of a decision not to prosecute was communicated (CCP, Article 255, para 1). In this latter case, no new objections are needed. New objects are statements of the suspect or witnesses, reports (processen-verbaal), documents or items which became known after the decision to drop the case were taken or which are not yet enquired. In the event of new objections, the suspect can be summoned only after a (new) judicial investigation has taken place (CCP, Article 255(3)). New perceptions of the prosecutor or new case law do not constitute new objections.112

5. Presenting the Case in Court The public prosecutor represents the case for the state (CCP, Article 9). The prevailing view in the Netherlands is that the prosecutor may not concentrate only on winning or losing the trial. The prosecutor has a duty to weigh the public interest against the interests of the individual (ie, suspect or victim). In the same line of thought, the prosecutor must also present both incriminatory and exculpatory evidence. He is part of the public prosecutor’s office or openbaar ministerie. The Netherlands is divided in districts (arrondissementen) and circuits (ressorts). There is one District Criminal Court and one public prosecutor’s office (arrondissementsparket) per district. The circuits each have one Court of Appeal and a public prosecutor’s office (ressortsparket). The districts have officieren van justitie and the circuits have advocaten-generaal. The districts handle cases in the first instance and the circuits handle the cases on appeal. There is also a national public prosecutor’s office which is not linked to any particular district court. This office is responsible for investigating and prosecuting (inter)national organised crime.113 The so-called Functional Prosecution Office is responsible for investigating and prosecuting offences in the fields where the special investigative agencies operate (including investigations on economic/ financial crimes).114

D. EVIDENCE

1. Preliminary Remarks This paragraph seeks to discuss certain issues related to evidence gathering and the use of evidence in criminal proceedings in the Netherlands. What follows does not reflect a thorough discussion of all aspects of evidence gathering and the use of evidence in the 112 113 114

Valkenburg (n 15) 960. See for extensive information www.om.nl. Ibid.

Evidence 121 Netherlands. The subject matter which is discussed below concerns the status of illegally or improperly obtained evidence, the admissibility of written reports and the status of evidence obtained in other Member States.

2. Status of Illegally or Improperly Obtained Evidence The CCP contained no provisions on the status of illegally or improperly obtained evidence before 1995. However, the Supreme Court had ruled on the matter on different occasions and thereby established an exclusionary rule.115 The case law of the Supreme Court was codified in an Act adopted in 1995116 (entering into force in 1996) which introduced Article 359a to the CCP. Article 359a provides the trial judge with the possibility to react in case of irregularities that have taken place during the pre-trial investigation phase. The irregularities should have taken place during the investigation of the case which is brought for trial before the judge. Irregularities which for example have taken place in the case of another suspect do not fall under the realm of Article 359a.117 The Supreme Court has given priority to the possibility to repair the irregularities.118 However, if the irregularity is irreparable and the law does not foresee any consequences for the irregularity, then the trial judge has four possibilities to react to the irregularity. The Supreme Court has held that Article 359a gives the judge a discretionary power (and thus it does not impose any duty upon the judge) to react to irreparable irregularities.119 Therefore, the first option open to the judge is to simply declare that an irregularity has taken place during the pre-trial investigation and not attach any consequences further. The second option is to reduce the sentence, if this will lead to a proper compensation of the disadvantage that the irregularity has caused to the suspect (Article 359a(1)(a)). The third possibility is to exclude the illegally or improperly obtained evidence (Article 359a(1)(b)). The fourth and final possibility is to declare the prosecution inadmissible if the result of the irregularity is that the principles of due process cannot be met anymore (Article 359a(1)(c)). According to Article 359a(2), the judge should take into account three factors when he decides to attach the consequences provided in section 1 of Article 359a CCP. The first factor which plays a role in this context is the interest/good which the breached provision protects. The second factor is the severity of the breach/irregularity. The third factor concerns the disadvantage that the irregularity has caused to the suspect. The Supreme Court has held that with respect to the third factor it is important to determine whether and to what extent the irregularity has actually caused damages to the defence of the suspect.120 It is the duty of the suspect to indicate very clearly and in a motivated fashion which factors have played a role in his case and which consequences the judge should attach to the alleged irregularity.

115 116 117 118 119 120

HR (Supreme Court) 26 June 1962 NJ 1962, 470; HR (Supreme Court) 18 April 1978 NJ 1978, 365. Wet van 14 September 1995, Stb 441. HR (Supreme Court) 30 March 2004 NJ 2004, 376, para 3.4.2. HR (Supreme Court) 3 July 2001 NJ 2001, 536. HR (Supreme Court) 30 March 2004 NJ 2004, 376, para 3.6.1. Ibid, para 3.5.

122 The Netherlands The Supreme Court has held that the reduction of the sentence may be applied only if the irregularity has caused actual disadvantages to the suspect, the disadvantage is caused by the irregularity, the disadvantage can actually be compensated through reduction of the sentence, and reduction of the sentence is also justified by the interest that the breached provision protects and the severity of the breach/irregularity.121 Evidence may be excluded if the evidence gathered was the result of the irregularity and in case an important (criminal law) provision is breached.122 The inadmissibility of the prosecution is in the eyes of the Supreme Court the ultimate sanction. This sanction may be imposed only in cases where serious breaches of the principles of due process have occurred and where the investigators consciously or with grave negligence have breached the rights of the suspect.123 As far as the exclusion of illegally or improperly obtained evidence in the context of CCP, Article 359a is concerned, the following may be observed. Not every illegally or improperly obtained evidence is suitable for exclusion. The Supreme Court looks in the first place at whether the irregularity has really affected the interest which the breached provision seeks to protect. For example, if the investigators hearing the suspect have not cautioned him about his right to remain silent (CCP, Article 29(2)), it may be said that in principle the irregularity has affected the interest that an (important) provision protects, as well as the interests of the suspect, and therefore any statement made without the caution should be excluded from the evidence. However, evidence does not need to be excluded if the suspect is a practising lawyer.124 Exclusion of the evidence is not appropriate if the suspect is not affected directly from the irregularity (this is the so-called Schutznorm) and if the suspect has not suffered any damage or disadvantage in his defence.125 Exclusion of evidence is also not appropriate if the investigators have acted in good faith; for example the investigators have entered premises without a warrant of the judge thinking that the relevant premise was not a private home.126 Last but not least, evidence may be excluded only if there is a causal link between the irregularity and the evidence. The causal link between the irregularity and evidence is also important for the application of the ‘fruits of the poisoned tree’ doctrine. The standard case in this respect is one where the police took the key of the apartment from the belongings of an arrested suspect. They went to his apartment without his knowledge, and found a gun and later on confronted the suspect with that gun. The suspect confessed as a result of the confrontation, The Appeal Court of Amsterdam held that neither the gun nor the confession made as a result thereof could be used in evidence against the suspect, even if the suspect had repeated the confession three times during the hearings. The motivation for the exclusion was that the confessions (and also the gun) were the fruit of an irregular and improper investigation.127

121

Ibid, para 3.6.2. Ibid, para 3.6.4. 123 Ibid, para 3.6.5. 124 Corstens (n 15) 712. 125 HR (Supreme Court) 30 March 2004 NJ 2004, 376, paras 3.5 and 3.4.3. 126 HR (Supreme Court) 19 June 2001 NJ 201, 574. However, this does not mean that there is no need for a reaction, especially if the investigators have entered the house of the suspect; the judge may impose a reduced sentence. 127 Hof (Court of Appeal Amsterdam) 4 May 1979 NJ 1980, 48. 122

Evidence 123 3. Admissibility of Written Reports CCP, Article 338 requires among other things that the trial judge must base his decision only on legal means of evidence. CCP, Article 339 contains a limitative list of the legal means of evidence. Written documents are one of those means. CCP, Article 344 defines written documents. Written reports compiled by bodies or persons who are authorised to compile reports may be used as evidence in criminal proceedings. The most important of those written reports are the reports compiled by investigators during the pre-trial investigation (processen-verbaal) (Article 344(1) subsection 2). Such reports may contain the observations of the investigators, as well as statements of the suspect and/or witnesses. Hearsay evidence is admissible in the Dutch criminal procedure. The Dutch Supreme Court admitted hearsay evidence in an early decision dating back to 1926.128 One of the questions raised in that case was whether a written report made by an investigator, which contained the statement of a witness which concerned a statement of the suspect, could be considered as admissible evidence. The Supreme Court held that the written report was admissible evidence. This decision has been considered as being more meaningful for the criminal procedure than the whole CCP.129 Since this decision, witness statements do not need to be produced at the hearing before the judge.130 The consequence is that, as far as the gathering of evidence is concerned, the pre-trial investigation has become more important than the investigation during the hearing.

4. Status of Evidence Obtained in Other Member States Evidence obtained in another Member State is first of all considered admissible evidence under CCP Article 344(1) subsection 3 if it concerns a document compiled by a public servant of another country, including another Member State. Such a document can be the report of an interrogating officer of another Member State which contains the statement of a witness.131 Written reports compiled by foreign investigators in the context of joint investigation teams or in the context of transfer of proceedings have the same status as reports compiled by Dutch investigative officers (proces-verbaal) as explained in the previous section above. However, it should be noted here that the status of such evidence may not exceed the probative value that it would have in the country where it was obtained. If for example, an investigative officer who has compiled a report needs to testify orally in court in his/ her own country about the probative value of the report, he/she should testify in the Netherlands as well.132

128

HR (Supreme Court) 20 December 1926 NJ 1927, 85. WPJ Pompe, ‘Het bewijs in strafzaken’ in WPJ Pompe (ed), Vijf Opstellen van Willem Pompe, (Zwolle, Tjeenk Willink, 1975) 46. 130 Of course this can be done only if the requirements stemming from the case law of the ECtHR concerning witnesses are respected. 131 HR (Supreme Court) 7 October 2008 NJ 2009, 107. 132 See for the joint investigation teams CCP, Art 552qc and for the transfer of proceedings CCP, Art 552gg(1). For the joint investigation teams, see also Kamerstukken II 2001/02, 28 351, nr 3, 9; For the transfer of proceedings see also Kamerstukken II 1979/80, 15 972, nr 3, 9. 129

124 The Netherlands E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Preliminary Remarks This section seeks to give a global picture of the rights of the suspect during the criminal investigation and prosecution in the Netherlands. The purpose is again not to discuss all the rights of the suspect during the pre-trial proceedings, but only the most important rights. Nor will these rights be discussed in detail. The aim is to highlight the most important features of those rights.

2. Presumption of Innocence The ECHR is directly applicable in the Netherlands, and therefore the Dutch authorities responsible for the application and enforcement of criminal law are obliged to respect the presumption of innocence, as laid down in ECHR, Article 6(2) and the case law of the ECtHR. Moreover, different aspects of the presumption of innocence have found their way into both the case law of the Supreme Court and the legislation. One of the aspects of the presumption of innocence concerns the burden of proof. It is for the prosecution or the judge to prove the guilt of the accused. However the ECtHR has held that once a material fact is proven (ie contraventions lacking a subjective element) the burden of proof may be on the side of the accused.133 The Dutch courts do not go so far. In cases of contraventions where there is no need to prove a subjective element (dolus or culpa), the judge is obliged to look at whether there are any grounds to exempt the suspect from liability, even if the suspect has not made any claim in that respect.134 Another aspect of the presumption of innocence is expressed in CCP, Article 271(2), which stipulates that the trial judge should not express any opinion/conviction on the guilt of the accused during the hearing. This is also an expression of the impartiality of the judge. In the context of the presumption of innocence, due care should be taken that temporary measures, such as pre-trial detention, do not pursue any criminal law purposes. This is allowed only if the suspect is declared guilty by the judge.135 Moreover, the suspect should not be treated as a convicted person during the pre-trial detention (see eg Article 2(4) Penitentiary Principles Act). The presumption of innocence also has an impact on the information that the public prosecution provides to the media about a particular case. Such information should be limited only to established facts, and should not contain any conclusions concerning the guilt of the suspect (or any other criminal law qualifications).136

133 134 135 136

Salabiaku v France App no 10519/83 (ECtHR, 7 October 1988). Corstens (n 15) 58. HR (Supreme Court) 2 March 1954 NJ 1954, 240. See for example Den Bosch Court of Appeal 28 March 2002 NJ 2003, 12.

The Rights of the Suspect/Defendant During Investigation and Prosecution 125 3. The Right to Ask for a Special act of Investigation The defence may not undertake investigative measures/acts in their own right. However, the suspect has the right to ask for a special act of investigation during all the phases of the process. During the pre-trial phase, whether or not a judicial investigation has started is important. If it has, then the suspect may make use of the competence provided to him by CCP, Article 208 to ask the investigative judge to call and hear witnesses and/or experts on his behalf or to indicate facts which need further investigation. If no judicial investigation has started, then the suspect may use the possibility given to him by Article 36a CCP to ask the investigative judge to undertake special acts of investigation (the so-called mini-instructie). During the trial the suspect can ask the judge/court pursuant to CCP, Article 328 to call new witnesses or experts, or to order the submission of new pieces of evidence (CCP, Article 328 in conjunction with Article 315). Furthermore, the suspect may ask the judge/court to transfer the hearing to another location, eg, to the crime scene in order to inspect it closely. Transfer of the hearing can also occur in order to hear a witness, suspect or expert, who did not appear in court, at another location or to look at a reconstruction of the crime made by the police (CCP, Article 328 in conjunction with Article 318). The defence can also ask the court to order an investigation on the mental capacity of the suspect (CCP, Article 328 in conjunction with Article 317).137

4. The Right to Legal Assistance CCP, Article 28 contains a general competence of the suspect to be assisted by a defence lawyer. Article 28 (in conjunction with CCP, Article 331) is clearly applicable during the trial phase. However, this provision does not specify from which moment of the pre-trial phase the suspect may exercise this competence/right. As far as the right to legal assistance in the pre-trial phase is concerned, Article 40 provides that the suspect is entitled to be assisted by a lawyer from the moment he is placed in custodial detention (for the pre-trial detention see CCP Articles 41 and 42, which provide for the right of the suspect to be assisted by a lawyer and the obligation of the state to provide the suspect with a lawyer). There are no statutory provisions providing the suspect with the right to be assisted by a defence lawyer at an earlier moment of the pre-trial phase, ie, during the first police interrogation. However, since the decisions of the ECtHR in the cases of Saduz v Turkey138 and Panovits v Cyprus,139 the Dutch Supreme Court has issued a number of decisions, which have had an impact in practice.140 Before the first interrogation of the suspect in the police station, the suspect now has the right to consult a lawyer. 141 Note that this is simply a consultation right. Thus, the suspect is allowed to meet (or in some cases call) the lawyer before

137 For the sake of completeness, it should be noted that the suspect may also ask the trial judge to summon and examine a witness which has not been refused by the prosecutor before the commencement of the trial (CCP, Art 287(3)(b)). 138 App no 36391/02 (ECtHR, 27 November 2008). 139 App no 4268/04 (ECtHR, 11 December 2008). 140 HR (Supreme Court) 30 June 2009 NJ 2009, 350. 141 Ibid. See also OM-Aanwijzing rechtsbijstand politieverhoor, Stcr 2010, 4003.

126 The Netherlands the interrogation and discuss the defence strategy during the interrogation; the lawyer is not allowed to be present during the first interrogation after arrest.

5. The Right to Submit Written Statements As already mentioned,142 written documents are legal means of evidence by virtue of CCP Article 344 (in conjunction with CCP Articles 338 and 339). Article 344(5) stipulates that other written documents (besides written reports) may be considered as written legal means of evidence. In this context, written statements of the suspect or witness statements may fall under the aegis of Article 344(5) if they are not recorded in a proces-verbaal. Thus, the suspect may submit written statements under this provision. Written statements which are not recorded in a report (proces-verbaal) may be submitted under Article 344(5) only if there is some other evidence that supports them. In other words, they can be submitted only if they are related to the contents of some other (legal) means of evidence. Written statements of the suspect or witness may not relate only to a statement of another person who confirms that the written statement is indeed the statement of the suspect or the witness. There should be something else which confirms the contents of the written statement; otherwise, the principle unus testis nullus testis would be breached.143

6. The Right to be Informed that his/her Statements may be Used as Evidence CCP, Article 29(2) sets out the duty to caution the suspect about his right to remain silent. The administration of the caution implies that the interrogating officer or the trial/investigative judge informs the suspect that his/her statements may be used as evidence. The duty to caution the suspect applies whenever the suspect is interrogated. The Dutch Supreme Court has defined the interrogation as any question posed by an interrogating officer to a suspect about his/her involvement in a punishable act.144 The threshold of the reasonable suspicion of CCP, Article 27(1), as discussed above,145 plays a very important role in this respect. The interrogating officer that has such a reasonable suspicion should administer the caution as soon as he starts interrogating the person concerned. The criterion of reasonable suspicion also plays an important role during the hearing of the case in the court room, in the event that the suspect claims that the interrogating officer administered the caution too late, thus after the reasonable suspicion arose. The judge can thus on the basis of objective facts and circumstances decide at what point there was a reasonable suspicion. The subjective perception of the interrogating officer is thus not decisive.146 From that point on, the interrogating officer should have administered the caution before any interrogation begun. It is of course not a problem if the interrogating officer administers the caution before there is a reasonable suspicion, because the suspect can make use of his

142 143 144 145 146

See section D3 above. Corstens (n 15) 702. HR (Supreme Court) 2 October 1979 NJ 1980, 243. See section A5 above. HR (Supreme Court) 22 June 1931 NJ 1931, 1602.

The Rights of the Suspect/Defendant During Investigation and Prosecution 127 right to remain silent in an early stage.147 However, the case law shows that the courts do not very easily accept that a person was a suspect when general questions, such as questions concerning the contents of a plastic bag, are posed to a person known to the police for his previous convictions.148

7. The Right to Full and Accurate Recording of the Statement and the Right to Require a Precise Wording of his/her Statements CCP, Article 29(3) requires that statements made by the suspect, and especially any confession, are recorded with the utmost accuracy in the so-called proces-verbaal. The record should also contain the administration of the caution. The purpose of Article 29(3) is to guarantee that the statements of the suspect are recorded in the words of the suspect, and not according to the perceptions of the interrogator. However, in practice it occurs quite often that investigating officers have a tendency to record the statements of the suspect in such a way as to facilitate the construction of evidence in the indictment. This of course is contrary to the purpose of Article 29(3).149 Apart from the right to a full and accurate recording of the statement, the suspect also has the right to require a precise transcript of his/her statements in the following situations. The first one is the so-called raadkamerprocedure (CCP, Articles 21–25). The raadkamerprocedure concerns all those cases where the CCP does not foresee that a decision should be taken by the court during the trial. Examples of raadkamerprocedure are the procedure concerning the suspension of the pre-trial detention, the procedure concerning complaints about seized objects, complaints about the decision (not) to prosecute, the decision to issue an order to limit the contact between the suspect and his/her lawyer, etc. The registrar makes a report of the proceedings (proces-verbaal) and the suspect may ask that his statements are recorded in his own words (CCP, Article 25(1)(2)). The second situation where the suspect may ask for a precise wording of his/her statement concerns the different procedures before the investigative judge. According to CCP, Article 172(3), the suspect has a similar right as described above in the case of the raadkamerprocedure. The third situation concerns CCP, Article 326(2) where a similar right is foreseen for the suspect to request a precise transcript of his/her statement made during the trial. The difference with the other two situations described above is that if the suspect is of the opinion that his/her statement was not accurate enough, the trial judge will decide about this.

8. The Right to be Informed about the Charges In practice, suspects are informed when arrested about the reasons of their arrest and the allegations (charges) against them in compliance with the provisions of ECHR, Article 5(2). The case law of the ECtHR is applicable in these cases. Moreover, the suspect is informed 147

Lessing (n 57) 188. HR (Supreme Court) 29 September 1981 NJ 1982, 258. See also HR (Supreme Court) 18 October 1988 NJ 1989, 479; HR (Supreme Court) 31 October 1989 NJ 1990, 258. 149 Spronken (n 62) 92. 148

128 The Netherlands thoroughly about the charges through the summons. The summons has four functions in the Dutch criminal procedure: indicate the suspect, summon the suspect to appear before a court at a specific day and time, charge the suspect with (a) concrete offence(s), and inform the suspect of certain rights. The summons includes thus also the indictment (CCP Article 261). The indictment should include a report of the charged offence(s) and it should mention the time and the place of the offence and the circumstances under which the offence was committed (Article 261(1)(2)). The indictment must be clear, understandable and must not be drafted in contradictory terms.

9. The Right of Access to the File During Pre-Trial Proceedings The right to access to the file is primarily concerned with that of the suspect.150 CCP, Article 51 stipulates that the defence lawyer has the same rights as the suspect with respect to access to the file. CCP, Article 30(1) provides the suspect with the right to have access to the file during the pre-trial investigation. The suspect has the right to inspect a certain piece of evidence in the file from the moment that item of evidence which is relevant for the case is added to the file. As will be discussed below, during the pre-trial investigation, access may temporarily be refused to certain information in the file. However, CCP, Article 33 stipulates that the suspect has the right to full access to the file once the pre-trial judicial investigation has ended151 or is closed or, in case there was no judicial investigation, from the moment the prosecutor has decided to bring the case to trial or the prosecutor has issued a penal order. According to CCP, Article 30(2), access to the file may be denied during the pre-trial investigation. In a judicial investigation, the decision is taken by the investigative judge.152 If no judicial investigation has taken place, then the decision is taken by the prosecutor. Refusal to certain documents/information in the file occurs if the interest of the investigation so requires. The CCP does not define when the interests of the investigation demand that the suspect should temporarily be denied access to certain information in the file. The purpose of this provision is the protection of the investigation.153 Therefore, access to the file should be refused only in those cases where there are serious reasons to believe that the suspect will seriously hinder the investigation process if he has access to the information that is at stake.154 A school example of such a situation is when the interrogation of a witness leads to the interrogation of other witnesses and there are serious reasons to believe that the suspect will attempt to influence the other witnesses. It should be noted here that access may not be refused in order to prevent the suspect from determining his position/strategy 150 The victim has also a right of access to the file pursuant to CCP, Art 51d. Persons who have lodged a complaint at the Court of Appeal about the decision not to prosecute may also have access to the file pursuant to CCP, Art 12f(2). 151 The pre-trial judicial investigation ends when the prosecutor informs the investigative judge that he (the prosecutor) has decided not to prosecute further (CCP, Art 238) or that he has issued a summons in conformity with CCP, Art 258(2). 152 In case the information is obtained as a result of the so-called special investigative powers (ie, infiltration, tapping, observation, controlled deliveries etc) The decision to refuse access is taken only by the prosecutor even if there is a judicial investigation going on (CCP, Art 126aa). 153 TNBM Spronken, ‘Artikel 30 SV, aant. [note] 6’ in CPM Cleiren, JF Nijboer (eds), Strafvordering: Tekst & Commentaar, 8th edn (Deventer, Kluwer, 2009) 98. 154 Ibid.

The Rights of the Suspect/Defendant During Investigation and Prosecution 129 before the interrogation.155 The question of whether access to rehabilitation or psychiatric reports about the suspect should be refused has proved to be problematic. Strictly speaking, access to such reports may not be refused on the basis of Article 30(2) and the suspect should have access to such reports.156 However, access to such reports may be damaging to the psychological situation of the suspect and therefore in practice access is often granted only to the defence lawyer.157 The prosecutor or the investigative judge, as the case may be, should inform the suspect or the defence lawyer (depending on who has asked for access) in writing about the decision to refuse access (Article 30(2)). The defence has then the possibility to lodge a complaint with the district court where the investigative judge or the prosecutor belongs about the refusal (CCP, Article 32). CCP, Article 30(2) provides that only access to certain information may be refused. Therefore, no full denial may occur. Moreover, CCP, Article 31 stipulates that access to certain documents/information from the file may not be denied in any phase of the proceedings. In the context of Article 31(a)(c) the suspect must have free access to the reports (processen-verbaal) of his/her interrogations or to reports (processen-verbaal) of interrogations, the contents of which are fully and orally communicated to the suspect. Furthermore, access may not be denied to reports (processen-verbaal) of interrogations or investigative measures where the suspect or his/her lawyer had the right to be present (Article 31(b)). For example, the suspect and/or his lawyer have the right to be present during a search and seizure (CCP, Articles 99 and 99a) or during the interrogation of a witness or expert in the context of a judicial investigation (CCP Articles 186 and 186a–87). The suspect should thus have access to the reports (processen-verbaal) made in such cases. However, under certain circumstances the contact between the suspect and his/her lawyer may be limited for a certain period (CCP, Article 50(2)). This limitation is closely linked with the possibility to refuse the suspect access to certain information to the file as described above. Thus if the defence lawyer has been present to the interrogation of a witness and the interests of the investigation require that the suspect should temporarily not have access to the statements of that witness, then the court may decide in the so-called raadskamerprocedure to limit the contact between the suspect and his/her lawyer. Article 31(b) makes sure that the suspect may not have access to the relevant reports (processen-verbaal) in such cases.

10. The Right to an Interpreter and Translation of Written Documents The Dutch CCP contains provisions about an interpreter only in the context of judicial investigation and the trial phase. However, following the case law of the ECtHR on ECHR, Article 6(3)(e), and the case law of the Dutch Supreme Court, the investigating authorities do provide in practice for an interpreter from the very first police interviews. CCP, Article 191 contains provisions about the interpreter during the judicial investigation. According to this provision, the investigative judge has the power to appoint an interpreter if the suspect (or witness, expert) does not speak/understand the Dutch language (Article 191(1)). In case the suspect (or witness) cannot or can hardly hear or speak, the investigative judge 155 156 157

Ibid. HR (Supreme Court) 27 November 2007 NJ 2008, 173. Spronken (n 129) 99.

130 The Netherlands may decide to communicate in writing with the suspect (or witness) (Article 191(2)). If the suspect (or witness) also cannot or can hardly read or write, then the investigative judge may appoint an interpreter (Article 191(3)). The appointment of an interpreter during the trial is regulated in CCP, Articles 274–76. According to Article 274(1) the trial judge may decide to communicate in writing with the suspect who cannot or can hardly hear or speak. If the suspect also cannot or can hardly read or write, then the trial judge may appoint an interpreter in accordance with Article 274(2). Article 275(1) stipulates that the trial judge must appoint an interpreter if the suspect does not speak/understand the Dutch language. The provisions of Article 275(1) are more imperative than those of Article 191 concerning the appointment of an interpreter by an investigative judge. Article 275(1) creates an obligation for the trial judge, while Article 191(1) contains a discretionary power of the investigative judge. As for the right of the suspect to have an interpreter appointed during the police interrogations/investigation (thus when no judicial investigation has commenced), the following may be observed. As already mentioned above, the CCP is silent about this phase of the proceedings. However, according to the case law of the ECtHR the suspect must have the right to an interpreter in the early stages of the investigation, thus also during the police interrogations.158 The College of Procurators-General has issued instructions concerning the appointment of interpreters during the police interrogations. According to the instructions, the police and the prosecutors are obliged to appoint an interpreter if the suspect does not speak/understand Dutch.159 Following the decision of the ECtHR in the Kamasinski case, the Dutch Supreme Court has held that the suspect has the right to translation of written documents. However, such a right is not an absolute one. Not all the materials of the file needs to be translated. Sometimes it is enough that a summary of the document is translated. It is the duty of the defence to request and to indicate exactly which documents need translation. During the pre-trial investigation such a request should be addressed to the investigative judge if a judicial investigation has commenced, and otherwise the request must be addressed to the prosecutor. After the summons is issued, the request should be addressed to the president of the District Court or to the trial judge if the trial has already started.160 It goes without saying that the summons (indictment) must also be translated in the event that the suspect does not speak/understand Dutch. The state bears the costs of interpretation and translation.161

11. The Right to Silence During the Pre-Trial Procedure It should be noted from the outset that Dutch law, jurisprudence and doctrine make a distinction between the right to silence and the privilege against self-incrimination, or the so called nemo-tenetur principle. The nemo-tenetur principle contains more than the right 158

See for example Kamasinski v Austria App no 9783/82 (ECtHR, 19 December 1989). Aanwijzing bijstand van tolken en vertalers in het opsporingsonderzoek in strafzaken (2008A010). The instructions are available at the website of the Public Prosecution: www.om.nl/algemene_onderdelen/ uitgebreid_zoeken/@151335/aanwijzing_bijstand/. 160 HR (Supreme Court) 16 December 1997 NJ 1998, 352. 161 Wet tarieven in strafzaken (Tariffs in Criminal Cases Act). See also HR (Supreme Court) 16 December 1997 NJ 1998, 352. 159

The Rights of the Suspect/Defendant During Investigation and Prosecution 131 to remain silent during interrogation, and it is not absolute. There are thus exceptions to the principle that the suspect may not be compelled to cooperate in inquiries that might incriminate him. These exceptions are both statutory and jurisprudential. The Supreme Court has held for instance that Dutch law does not recognise an absolute right or privilege that the suspect may not be compelled in any way to cooperate in the gathering of potentially incriminating evidence against him/her.162 A person who is suspected of driving under the influence of alcohol, for example, is obliged to grant his/her cooperation in a blood or breath test (Road and Traffic Act 1994, Article 163). Another example of a restriction on the privilege against self-incrimination concerns DNA tests. The suspect may be compelled (even by the use of force) to give/provide material (blood, hair) for a DNA test (CCP, Article 151b(3)). It should be noted here that the nemo-tenetur principle has a relative meaning in practice and there is still discussion in the literature concerning the scope of the principle.163 As far as the right to silence is concerned, the following may be observed. The right to silence is expressed in CCP Article 29, and is absolute. This means that the suspect may not be compelled to make a statement. Moreover, production orders (ie, an order to produce documents) with the view to seizure may not be addressed to the suspect (CCP, Article 96a). However, the case law of the Supreme Court has posed some restrictions to the right to silence. Accordingly, the trial judge may attach adverse consequences to the silence of the suspect if, for example, the suspect does not give a reasonable explanation for incriminating circumstances.164

12. Rights of Legal Persons in Criminal Proceedings Legal persons are criminally liable in the Netherlands and they have human rights just as natural person. These rights are exercised by the representative of the legal person. Therefore, the rights discussed above are equally applicable to legal persons, except for those rights which are related to detention or arrest, since legal persons cannot be detained or arrested; nor can the representatives of the legal persons be arrested or detained on behalf of the legal person.165 The Supreme Court has held that the provisions on the right to silence of the suspect (including the administration of the caution) apply equally to the representative of the legal person.166 However, the Dutch doctrine does not seem to agree on a common view with respect to the right to silence of the legal persons during the pre-trial investigation. Some authors have casted doubts on the right to silence of legal persons during the pre-trial investigation.167 Torringa argues that, as a rule, legal persons do not have a right to silence 162

HR (Supreme Court) 9 October 1984 NJ 1985, 176. See eg, JM Reijntjes, Nemo tenetur (Arnhem, Gouda Quint, 1996); JW Fokkens, WJW Spek, ‘Het nemo teneturbeginsel en het Nederlandse straf(proces)recht’ in AHEC Jordaans, PAM Mevis, J Wöretshofer (eds), Praktisch strafrecht (Nijmegen, WLP, 2005); L Stevens, Het nemo tenetur-beginssel in strafzaken: van zwijgrecht naar containerbegrip (Nijmegen, WLP, 2005); I Peçi, Sounds of Silence: a research into the relationship between administrative supervision, criminal investigation and the nemo-tenetur principle (Nijmegen, WLP, 2006). 164 HR (Supreme Court) 19 March 1996 NJ 1996, 540; HR (Supreme Court) 3 June 1997 NJ 1997, 584. 165 Kamerstukken II 1975/76, 13 655, nr 1–3, 23. 166 HR (Supreme Court) 13 October 1981 NJ 1982, 17. 167 RA Torringa, Strafbaarheid van rechtspersonen (Arnhem, Gouda Quint, 1984) 134; J Wortel, De onderneming in het strafrecht (Lelystad, Koninklije Vermande 1987) 96. 163

132 The Netherlands during the pre-trial investigations. Only one-man legal persons constitute an exception to this rule, and having the right to silence during the pre-trial investigation, because in such cases the director/only-shareholder can be seen as the ‘real’ suspect.168 Other authors, on the other hand, have argued that it should be possible for legal persons to exercise their right to silence through their representatives during the pre-trial investigation.169 In this view, the caution should be administered to the representative of the legal person. In case the representative is not known yet, or the legal person has not appointed a representative yet, then the caution need not be administered to anyone.170

168 169 170

Torringa (n 143) 135. Lessing (n 57) 189. N Jörg, Strafbare rechtspersonen in Amerika (Arnhem, Gouda Quint, 1990) 183.

4 England TRICIA HOWSE, CBE

Introduction

E

NGLAND IS THE country where the body of rules and principles generally referred to as ‘the accusatorial system’ originated, and for that reason foreign lawyers generally assume that modern English criminal procedure must be the archetype of such a system. In truth, however, English criminal procedure—like criminal procedure in the rest of Europe—has undergone many changes over the centuries, and in recent years has acquired a number of features that are usually thought of as more typical of the inquisitorial tradition. These include, at the institutional level, professional public prosecutors: for ordinary cases, members of the centrally organised Crown Prosecution Service, created by statute in 1985, and for major fraud cases, the personnel of the Serious Fraud Office, created by statute in 1987. Looking at the rules of criminal procedure, moves in the inquisitorial direction include giving the police the right to arrest and detain suspects for questioning (1984), and giving the Director of the Serious Fraud Office the right to require suspects in fraud cases to answer questions (1987). They also include imposing on defendants the duty to tell the court and the prosecutor, in advance of a contested trial, the general lines of the defence on which they propose to rely (1996) and, more recently, the identity of the witnesses whom they intend to call to support it. A traditional feature of the system which remains much in evidence is its heavy reliance on lay citizens as the tribunal of fact: in serious cases, a jury of 12 citizens, chosen at random, who deliver an unreasoned verdict; and for the majority of offences that are less serious, a tribunal of fact composed of two or three lay ‘justices of the peace’. Another traditional feature of the system (and one which in practice is highly inconvenient) is the absence of a Criminal Procedure Code. In 2005, the secondary and more detailed rules of criminal procedure were arranged into a single document known as the Criminal Procedure Rules, but the basic and fundamental rules are still to be found scattered over a large number of different statutes—or, in the absence of any statutory basis, in the relevant case law of the higher courts. This makes the system difficult for outsiders to explore, and not always easy to navigate for those who are familiar with it. Heavy reliance is placed, for those who have to operate the system, on two well-known practitioners’ books: Archbold’s Criminal Pleading, Evidence and Practice (the first edition of which appeared in 1822) and its more recent rival, Blackstone’s Criminal Practice (which dates from 1991).

134 England A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure Article 86 TFEU distinguishes between investigation, prosecution and bringing to judgment in a criminal justice process. In English law, the process is divided into investigation and prosecution: the latter encompassing both pre-trial hearings and the trial itself. Following conviction, the defendant is sentenced, and this also counts as part of the ‘trial’ process. (a) Investigation A criminal investigation is defined by the Criminal Procedure and Investigations Act 1996 as: [A]n investigation conducted by Police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it.

The Act’s Code of Practice also specifically applies, by virtue of section 26 of the Act, to Government departments and agencies (such as the Serious Fraud Office (SFO), HM Revenue and Customs (HMRC) and the Financial Services Authority (FSA)), which are all legally entitled to investigate specific criminal offences1 with or without the involvement of police officers. (b) Prosecution Prosecution is the term universally used in England and Wales to cover the process of bringing a person charged with a criminal offence before a court. Charging occurs in personam on arrest, by a police officer, or by a magistrates’ court issuing a written summons.2 The concept of the prosecution stage of the process in England encompasses pre-trial court hearings relating to bail and mode of trial and preliminary hearings (which may or may not form part of the trial), as well as the trial itself and any sentencing hearings that take place after conviction. Prosecutors are normally government lawyers (though low-level cases may be prosecuted by non-lawyers under particular acts) or self employed advocates engaged by the prosecuting authority from the Bar of England and Wales. The principal prosecuting authority in England and Wales is the Crown Prosecution Service (CPS), though other departments and agencies may prosecute under specific acts. (c) Bringing to Judgment As explained above, this phrase is not one found in the English criminal justice system; English criminal procedure divides the process following investigation and charge of an accused person into the pre-trial, trial and (if there is a conviction) sentencing stages.

1 Those offences involving serious or complex fraud, revenue and customs offences and offences under the Financial Services and Markets Act 2000. 2 A procedure that will eventually be replaced by a new procedure, called ‘charge and requisition’, under which the Crown Prosecution Service, rather than the magistrates’ court, requires the defendant to come to court.

General Aspects of the Procedure 135 Sentencing may include confiscation of criminal assets and compensation to victims, though the hearings relating to those two processes may be separated. Other relevant postconviction judgments or hearings in relation to financial crimes may include: confiscation, means enquiries (for those sentenced to monetary fines/penalties), disqualifications (company directors) and Serious Crime Prevention Orders.3 Prosecutors in England and Wales also have power to bring civil proceedings in rem against criminal assets in the High Court under the Serious Crime Act 2007, Schedule 8, Part II. These proceedings are quite separate from any related criminal proceedings and are heard in a different court under the civil jurisdiction.

2. Sources of Criminal Procedural Law Criminal procedure rules in the English legal system may have a statutory or case law base, or a combination of the two. Nearly all criminal procedural rules have statutory bases, either under an Act of Parliament or more commonly under subsidiary legislation such as statutory enactments, an example being the Criminal Procedure Rules 20104 which provide for preparatory hearings in serious fraud cases. In addition to the Criminal Procedure Rules, the Lord Chief Justice, with the concurrence of the Lord Chancellor, issues general ‘Practice Directions’, which regulate, in a detailed way, various practical matters. These are consolidated and published together with the Criminal Procedure Rules. In some cases procedural rules or ‘best practice’ may be prescribed by Codes of Practice, such as that governing prosecution disclosure under section 23 of the Criminal Procedure and Investigations Act 1996, which may or may not have the force of law; or even by the courts themselves. The appeal courts may comment adversely if ‘voluntary’ codes are not followed. To these extents statutory bases are not required, as English law has always accorded a great degree of freedom to judges to order the conduct of parties in court. Judges may apply the sanction of imprisonment for contempt of court if their orders are not obeyed. Some rules have case law bases; eg High Court, Court of Appeal and Supreme Court decisions, along with those of the ECJ, may affect criminal laws and procedures by interpretation. This occurs through the long-established English law doctrine of stare decisis, by which the higher domestic courts listed above may lay down ‘precedents’ which must be followed by lower courts. The Human Rights Act 1997 imports the ECHR in toto (apart from Art 13) into English law.

3. Bodies Carrying out Investigation and Prosecution (a) Investigations Initial investigations into allegations of criminal activity are usually carried out by the police. There are 43 police forces in England and Wales, others in Scotland and one in 3 4

Serious Crime Act 2007. SI 2010/60 (L2).

136 England Northern Ireland. In addition, there are specialist police forces such as the British Transport Police, with limited functions. The City of London Police is the lead force for financial fraud investigation in England and Wales. The Serious Organised Crime Agency (SOCA), staffed by police, HMRC and other officers, also investigates serious organised crimes. Only the Serious Fraud Office (SFO) has prosecutors actually directing criminal investigations. Normally there is separation between investigators and prosecutors. Crown Prosecutors have, since the Serious Organised Crime and Police Act 2005 (SOCPA), had special investigation powers to issue Disclosure Notices for interview, information and documents. These are deployed to assist police investigations. Some government departments and agencies, eg: the Department for Business, Innovation and Skills (BIS), the Department of Health and Social Security (DHSS), Her Majesty’s Revenue and Customs (HMRC), the Department for the Environment, Food and Rural Affairs (DEFRA5), the Office of Fair Trading (OFT), and the Financial Services Authority (FSA), and also all local authorities, may investigate specific crimes in their area of activity and may prosecute under specialist acts.6 In this chapter such bodies are referred to collectively as law enforcement agencies. There are also many others. Only those which deal with fraud and financial crimes are included in this article. The way in which investigations are divided between each agency is straightforward: Each law enforcement agency investigates and prosecutes the criminal offences created by the Act which gives them their powers, though non specialist offences may be added to an indictment in the Crown Court, if appropriate, to avoid duplication of labour. Investigators and/or prosecutors may informally consult with each other to agree the lead agency in overlapping enquiries, and they may exchange information and evidence. They may agree to form joint investigation teams with one or more police force, other agencies, or with SOCA. (b) Prosecutions The Crown Prosecution Service undertakes most of the criminal prosecutions nationally and may prosecute under any Act which does not give exclusive competence to a single authority. In England and Wales, the police do not prosecute, though they may compromise a prosecution by giving a formal caution for certain minor offences.7 There are also a variety of government departments, public bodies and local authorities which are law enforcement agencies, legally entitled to investigate and prosecute the criminal offences created by the Act(s) which give(s) them their powers. Private prosecutions by individual citizens are possible, but rare. An individual must persuade a magistrates’ court to issue a summons to the accused. Such prosecutions (and indeed any prosecutions) may be taken over or terminated by the Attorney General issuing a fiat of nolle prosecui. Prosecutions are divided between different agencies with power to prosecute in the same way as investigations are. Informal consultations are common and may result in an agreed

5

DEFRA prosecutors have recently (2012) been absorbed into the Crown Prosecution Service. In this chapter the term ‘Act’ is used to describe any law with a statutory basis. Elements of the English common law may remain in force to supplement an Act. 7 This procedure, which is an alternative to prosecution for minor offences, should be distinguished from the warning caution given to offenders on arrest or charge under Police and Criminal Evidence Act 1984 Code C. 6

General Aspects of the Procedure 137 lead prosecutor. Some acts specify that the Director of Public Prosecutions (DPP) or the Attorney General for England and Wales must consent before a prosecution is brought for a particular offence; and some acts may provide that only a particular secretary of state may authorise prosecution. In such cases formal applications for consent are made to the competent body.

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle There is no legal obligation to investigate a complaint in England and Wales. The Act which creates the criminal offence may specify the threshold for investigation of the offence concerned, but the Criminal Procedure and Investigations Act 1996 and the Police and Criminal Evidence Act 1984 (PACE) apply to all criminal investigations. Both provide codes of conduct or practice governing criminal investigations, which are defined8 and which apply to all investigators, police officers and civilians. There are statutory thresholds for arrest, detention and coercive measures but not for investigations per se. The Code for Crown Prosecutors9 provides criteria for all prosecutors in deciding whether or not a person should be charged with a criminal offence. Case law (the ‘prima facie’ test10) indicates that the evidence should be such that a reasonable jury, properly directed, would be able to convict the person. It must also be in the public interest to prosecute the individual concerned. Prosecution is always discretionary, in English law. The Code for Crown Prosecutors provides for two tests: evidential sufficiency and public interest. Even if there is sufficient evidence, the public interest may not require prosecution; particularly if some other more appropriate sanction is available.

5. The Status of the Accused/Defendant An individual has no special legal status vis-a-vis the investigation unless or until he is charged. He may have legal rights, eg when he is arrested/detained, or questioned about an offence, or when his property or person is searched. But he is not entitled to see any dossier or prosecution evidence until he has been formally charged. That said, some regulatory acts (eg the Financial Services and Markets Act 2000) provide detailed procedures for notifying suspects during the investigations, to enable them to make representations about it, but the general criminal law affords no special status to a suspect akin to the French inculpation. A person can become a suspect at any time during an investigation. The investigators are not obliged to tell a suspect that he is under suspicion unless and until he is arrested/detained

8 Criminal Procedure and Investigations Act 1996, s 22: ‘a criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged has with an offence is guilty of it.’ 9 A published document (www.cps.gov.uk), followed by all prosecutors. 10 R v Galbraith [1981] 73 Cr App R 124, CA. This case permits the defence to submit, before any trial has concluded, that there is insufficient evidence to enable the jury to convict. All prosecutors have this case well in mind when initiating or continuing a prosecution.

138 England or formally interviewed under caution,11 when the offences which are being investigated must be described to him in general terms. If a suspect is arrested (eg before the interview) without also being charged, the grounds for his arrest must be given to him.12 The main difference in status between a suspect and an accused/defendant in the English system is that once a person has been charged, the offence is explained to him in detail. Another is that, generally speaking, the police and prosecutors have no power to question him from this point on. However, a charged person may be interviewed after this point regarding criminal assets (ie it is permitted to question them during the confiscation investigation), or under PACE Code C in the case of ambiguities in their interviews, new information being obtained by the police or to prevent harm or loss.13 He is also entitled to legal aid at this stage. Prior to his trial, he is entitled to see the prosecution evidence and any other material obtained during the investigation which is relevant to the case.

6. Specialised Procedure for Financial Criminal Investigations The term ‘financial investigation’ is not a formal one in English law, although the description ‘financial investigator’ is often applied to civilians who work with the police on financial crimes and confiscation. Relevant specialised powers and procedures for investigations generally or into a person’s finances are provided in several acts, principally: (1) (2) (3) (4) (5)

Proceeds of Crime Act 2002 (POCA); Criminal Justice Act 1987; Serious Organised Crime and Police Act 2005 (SOCPA); Police and Criminal Evidence Act 1984 (PACE); and Companies Acts.14

The specialised procedure to be followed will depend upon which statute has provided the powers being utilised, and thus when it is triggered will also vary. The point of trigger for specialised procedures in relation to those set out above respectively are as follows: (1) The court may issue POCA 2002 production orders when necessary and proportionate, for the purposes of a confiscation investigation (as defined15), or a civil recovery investigation. There are detailed preconditions in section 345. (2) The Director may require any person (including a person under investigation) to attend interview or provide information and documents relating to the investigation.16 These powers are only exercisable for the purposes of an investigation into an

11 PACE 1984 and its Codes of Practice, s 28 provides that a person arrested must be informed of the grounds for his arrest at the time, or as soon as practicable. 12 Arrest may be on warrant (issued by a court), or without one if the arresting officer is a constable (police officer): Police and Criminal Evidence Act 1984, s 24 as amended by Serious Organised Crime Act 2005, s 110. 13 PACE Code C, para 16.5 (as amended in January 2008). 14 Eg Companies Acts 1985 and 1989, Companies (Audit, Investigations and Community Enterprise) Act 2004, and Insolvency Acts. 15 Proceeds of Crime Act 2002, s 341: ‘a confiscation investigation is an investigation into (1) whether a person has benefited from his criminal conduct, or (b) the extent or whereabouts of his benefit’. Money laundering investigation is also defined. 16 Criminal Justice Act 1987, s 2.

General Aspects of the Procedure 139 offence involving serious or complex fraud; and where it appears to the Director that there is good reason to exercise them. (3) Similar powers are available to Crown Prosecutors to issue Disclosure Notices under SOCPA 2005 section 62. There must be reasonable grounds for suspecting both that an indictable offence has been committed, and that the individual to whom the order is directed has committed it. The material must also be likely to be of substantial value to the investigation.17 (4) Under PACE 1984 section 9 and Schedule 1, the court has power to issue Special Procedure (Production) Orders for the delivery of information or documents to police officers and others. There are detailed preconditions for obtaining an order, but in general terms the police must have tried to obtain the material and failed, and it must be in the public interest for the material to be obtained. (5) The Secretary of State has wide powers to enquire into the financial health of UK registered companies. The FSA has similar powers to investigate suspected offences relating to financial services and markets.18 All of the above acts also contain specialised procedural rules for cases to which they apply. The relationship between the system of financial investigations and general criminal procedure is that normally criminal investigations do not require the cooperation of the suspect or of any witness. However, all the above acts provide compulsory powers for those investigating to obtain financial and other information relevant to the offence from the accused or from third parties. Criminal penalties are provided for failure to cooperate or for providing false or misleading information. In England, the system of financial investigation is not subservient to the public prosecutor; the CPS may not even be involved in the financial or other investigation concerned. In cases involving organised crime or terrorism the Crown Prosecution Service may be advised of the investigation, but it does not become formally seised of a case until the police have referred a case to it, eg for advice on the charges to be brought. The police must involve the CPS earlier if the investigation requires the use of disclosure orders under SOCPA 2005, as these can only be issued by the CPS. In SFO cases, the prosecutor will be involved from the start and directs the investigation through a case manager. Other law enforcement agencies’ lawyers do not direct the investigation, but may be asked to advise before charges are brought. However, in all except SFO cases, it is normal—and sometimes legally required—to seek the Crown Prosecutor’s advice before charge. The prosecutor will nearly always draft the charge. Once the charge has been made, it is still common for law enforcement agencies to engage specialist self-employed advocates (barristers) to appear for them in trials. Barristers act under the instructions of a prosecutor/lawyer from the agency concerned, but also have an independent duty to the court. Prosecutors in England and Wales remain responsible for a case throughout all court hearings and until any appeals have been concluded, or the time for appeal has passed. They are not responsible for enforcing judgments.

17 18

Serious Organised Crime and Police Act 2005, s 62. Financial Services and Markets Act 2000.

140 England (a) International Cooperation International cooperation in criminal matters of England and Wales is governed by the Crime (International Co-operation) Act 2003. This Act is freestanding and does not require mutuality. Foreign civil judgments may also be enforced through the courts in England and Wales.19 In an international investigation, police or other law enforcement agencies charged with the duty of conducting investigations into criminal offences must act fairly and, since the Criminal Procedure and Investigations Act 1996 (CPIA 1996), must have regard to the Code of Practice issued under it. An officer in charge must be appointed; information and evidence obtained during an investigation which may be relevant20 to the investigation must be recorded, retained and eventually disclosed to the prosecutor and by him to the accused person. The investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect (CPIA 1996 Code of Practice para 3.4). All these rules apply whether the investigation is a domestic one, or one conducted in response to a letter of request. Only those prosecuting authorities explicitly nominated in the Crime (International Co-operation) Act 2003,21 or a judge of a criminal court, may send formal letters of request. The information they give is usually provided by the investigators. When acceding to the 2000 Mutual Legal Assistance Convention, the UK indicated that the Home Office Central Authority for Judicial Co-operation should receive letters of request directed to courts and law enforcement agencies in England and Wales. European arrest warrants (EAWs) and the enforcement of overseas forfeiture orders are handled exclusively by the SOCA. In traditional judicial cooperation, both in respect of sending and receiving the cooperation request, the role of the prosecutorial authorities in England is to draft letters of request for sending and make contact (when necessary) with their opposite number in the requested state. When letters of request are received in the UK Central Authority, they are passed to the appropriate prosecuting authority, or to the police, HMRC, SOCA or other law enforcement agencies for execution. In cooperation based on mutual recognition both in respect of issuing and executing the warrant/order, outgoing EAWs may be drafted by police/SOCA or a prosecutor, depending on the complexity of the case. SOCA is responsible for sending EAWs. Incoming EAWs are received by SOCA, which may consult CPS or other prosecutors for advice in relation to execution.

B. INVESTIGATIVE MEASURES

1. Formal Designation as a Suspect As explained above, there is no formal designation of a suspect in English law. However, special legal rights may arise at particular times and circumstances. There are detailed rules 19

Civil Jurisdiction and Judgements Act 1982. Material is relevant if it has some bearing on the offence under investigation or any person being investigated, or on the surrounding circumstances of the case (CPIA 1996 Code, para 2.1). 21 Crime (International Co-operation) Act 2003 Annex C as amended: includes the Attorney General, Commissioners for Revenue and Customs, DPP and Crown prosecutors, Director and SFO lawyers, Secretary of State for Trade and Industry, FSA. 20

Investigative Measures 141 in Codes of Practice issued under PACE 198422 as to the treatment and rights of persons (who may not later be charged at all) who are interviewed under caution, or arrested, or those whose property is searched.

2. Questioning the Suspect A person of whom there are grounds to suspect an offence must be cautioned23 before any questions about an offence are put to him. There are legal time limits, set out for most cases in PACE 1984, for detention without charge for questioning.24 A suspect must be charged when the officer in charge of the investigation reasonably believes there is sufficient evidence to provide a realistic prospect of conviction. Only when such a person has been formally charged with an offence does he acquire a special legal status. English law traditionally divided crimes into arrestable and non-arrestable offences. Under PACE 1984 as amended by SOCPA 2005, constables (police officers) now have power to arrest for any offence, subject to certain conditions. In all other cases, a court must issue a warrant of arrest, or a summons to bring a suspect to court to answer the charge. A court must also issue a search warrant before the police can enter property, unless an Act provides otherwise; though the police have certain limited powers to enter without a warrant in connection with making arrests. PACE 1984 and other acts permit police officers to stop and search persons in a variety of circumstances such as terrorism, public order, etc.25 Revenue and Customs officers and Immigration and Border Control officers have statutory powers to search persons for uncustomed goods, illegal immigrants, etc. PACE 1984 Codes of Practice A-G cover inter alia26 police powers of arrest, searches, the treatment and questioning of vulnerable persons, persons who do not speak English, juveniles and children. Each Act also provides particular preconditions and restrictions on the powers of the Officers concerned. Property owners and occupiers have legal rights under PACE 1984 Code B when property is searched. There is no duty to cooperate with the investigative authorities, unless an Act specifically provides otherwise. For example: statutory notices, disclosure or production orders issued under PACE 1984, the Criminal Justice Act 1987, the Proceeds of Crime Act 2002 or the Serious Organised Crime and Police Act 2005 require cooperation. There are no special rules for legal persons; notices, disclosure or production orders may be issued to legal or natural persons; and legal persons may commit crimes. There are also no special conditions for financial investigations other than the statutory powers available under the Criminal Justice Act 1987, the Proceeds of Crime Act 2002 (POCA), the Serious

22

Codes of Practice A-E issued under PACE 1984. The caution (Code C) warns the suspect: ‘You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’ 24 And longer periods are permitted under the Terrorism Act 2000. 25 For example Criminal Justice and Public Order Act 1994, Terrorism Act 2000, Commissioners for Revenue and Customs Act 2005. 26 Code A: Stop and search; Code B: Search of premises and seizure; Code C: Detention, treatment and questioning; Code D: Identification; Code E: Audio recording of interviews; Code F: Visual recording of interviews; Code G: Power of arrest. 23

142 England Organised Crime and Police Act 2005 (SOCPA) and other relevant acts; which may apply to various types of investigation. The act concerned specifies which type of officer may issue or execute the notice, disclosure or production order. For example, only accredited financial investigators under POCA 2002; only Crown Prosecutors under SOCPA 2005. Sometimes such a measure may require organisation; eg a notice under the Criminal Justice Act 1987 section 2 requiring banking information must be authorised by the Director of the SFO. A production order under PACE 1984 or POCA 2002 must be issued by a court. A disclosure order under SOCPA 2005 must be signed and countersigned on behalf of the CPS. The authorisation is applied for by an officer from the law enforcement authority that wishes to execute it. Authorisation is granted by an officer of the rank specified in the Act, or a court, as the Act requires. The authorisation will be in written form, either by countersignature on the notice or by stamping the order. Neither contains reasoning, though the reasons for granting the authorisation are recorded and may be called for by a court on an application for judicial review. There is judicial review of this process insofar as any person can challenge in the High Court the decision, action or failure to act of a public body or other body exercising a public law function. However, there is no judicial review, in the sense of continuous judicial oversight—as exercised by a juge d’instruction in France. Criminal investigations are never the responsibility of judges in English law. Courts and law enforcement agencies such as the SFO, CPS and SOCA keep copies of notices, orders and warrants issued and the reasons for their issue. Notices and orders are addressed to specific named persons. Banks or other witnesses may be required not to notify clients; eg in money laundering27 or terrorist cases where there is a risk of tipping-off. PACE 1984 Codes of Practice give persons arrested and detained the right to consult a lawyer or to have someone informed of their arrest.28 This may be delayed if a senior officer has reasonable grounds for believing that external contact will interfere with the investigation, harm others, alert suspects or hinder the recovery of property.29 Unless delay is authorised as above, detained persons may at any time consult and communicate privately with a lawyer and may not be interviewed without the lawyer being present. Similar rights apply to vulnerable persons, juveniles and children in respect of social workers or parents. Where notices or orders are served, there is no requirement for the law enforcement agency to inform a defence lawyer. Detained/arrested foreign nationals may communicate at any time with their High Commission, embassy or consulate, subject to authorised delay as above. PACE 1984 Code C requires that a detained person may not be interviewed without an interpreter if he is deaf, has difficulty understanding English, or asks for one. Interpreters are provided at public expense. There is no requirement for notices or orders to be translated. The English legal system provides for judicial review of this measure, and any person may apply for judicial review of any decision, action or failure to act of a public body or other body exercising a public law function. Each law enforcement agency is responsible for overseeing the execution of any official measure and for complying with the conditions

27 Proceeds of Crime Act 2002, s 333. Governor and Company of the Bank of Scotland v A Ltd [2001] 1 WLR 751 provides guidance to banks and the SFO where an account holder is known to be the subject of a police investigation. 28 PACE 1984 Code C, ss 5 and 6. 29 Ibid, Codes of Practice Annex B.

Investigative Measures 143 provided for in the Act concerned. The courts have general oversight via the judicial review procedure. (a) Questioning Pre-Trial Without Arrest Any person may be interviewed as a volunteer, without arrest, whether they are a suspect or not. A person of whom there are grounds to suspect an offence30 must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put.31 A person interviewed under a statutory notice or order such as a Criminal Justice Act 1987 section 2 Notice need not be cautioned, but the answers the person gives to questioning may not be used in evidence against him in court unless he introduces them into evidence himself,32 or commits perjury, or on a prosecution for giving false information in response to the notice or order. Law enforcement officers in England and Wales may question any person suspected of any criminal offence, but they must follow (or have regard to, if they are not police officers) the PACE 1984 Codes of Practice. These impose various restrictions—notably the duty to caution the suspect. The so-called common law privilege against self-incrimination is now subject to numerous, though strictly conditional, statutory exceptions. As above, there is a duty to cooperate only where statutory powers are used. There are no special rules for legal persons, who, if suspected of criminal offences, may be questioned through responsible officers. Notices or orders are served on their head offices. There are no special conditions for financial investigations, but there are special statutory powers for investigating serious or complex fraud, serious or organised crime, money laundering and the proceeds of crime, see above. Financial evidence may be sought as well as ordinary evidence. Those special statutory powers are executed by law enforcement agencies charged under various acts with the duty of investigating particular crimes. Interviewing someone who has not been arrested does not usually require authorisation, although some police interviews with vulnerable persons, juveniles or children require authorisation under specific acts.33 Notices or orders issued under statutory powers may require authorisation, as previously mentioned. Where authorisation is required, it is applied for by the officer wishing to conduct the interview, and will be considered/ granted by the senior officer specified in the Act concerned. Authorisation will be in the form provided by the Act concerned, and any reasons will be recorded. There is no judicial review, in the sense of contemporaneous judicial oversight (see above). However, the trial

30 There must be some reasonable, objective grounds for the suspicion, based on known facts or information. (Code C Note 10A). 31 PACE 1984 Code C caution: ‘You do not have to say anything. But it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.’ 32 CJA 1987, s 2(8) and (8AA): ‘the statement may be not be used against a person unless evidence relating to it is adduced, or a question relating to it is asked by or on behalf of that person in the proceedings arising out of the prosecution.’ See also SOCPA 2005, s 65. 33 PACE 1984 Code C: ‘vulnerable suspects’ are juveniles, the mentally disordered, persons suffering from the effects of drink, drugs or any illness affecting their ability to appreciate the significance of questions or answers, persons who have difficulty understanding English or who are deaf.

144 England judge has the discretion to refuse to admit any evidence he considers to have been unfairly obtained.34 Interviews are recorded by the specific law enforcement agency concerned, or by the police. Audio recording is usual, though in emergencies written records will be made. Visual recording is possible and a suspect may also write or record his own statement if he wishes. There are no notification requirements; a suspect is simply asked if he will be interviewed. If he declines, he may be arrested to ‘allow prompt and effective investigation of the offence.’35 A person given notice under section 2 Criminal Justice Act 1987 (CJA 1987) to attend interview at the SFO may not refuse to be interviewed without good reason. If he does so, he may be charged with failing to comply with the notice, and sentenced to up to six months’ imprisonment.36 Similar provisions apply to interviews under SOCPA 2005 disclosure orders. Only a detained (ie arrested) person has the right to have a lawyer present at his interview. Law enforcement agencies and police officers usually permit lawyers to attend voluntary interviews, or permit the suspect to contact his lawyer beforehand, unless unreasonable delay would be caused by this. Note that section 2 CJA 1987 Notices may be issued for execution ‘forthwith’, for immediate compliance. No defence lawyer need be present or involved unless the suspect is arrested. Likewise, unless the suspect has been arrested, it is not necessary to provide him with any assistance such as an interpreter. However, law enforcement agencies will obviously obtain little of evidential value from a suspect if they do not provide an interpreter when one is needed. Judicial review in the English law sense may always be applied for, but if the interview is conducted with a willing suspect and the action complained of is discretionary—eg a decision not to wait for a lawyer to attend a voluntary interview—then the High Court may decline to interfere. The trial judge has a wide discretion to refuse to admit evidence which he considers has been obtained unfairly.37 There is no external body charged with supervising the questioning of suspects; each law enforcement agency is responsible for overseeing the execution of any official measure (including voluntary interviews with suspects) and for complying with the conditions provided for in the Act concerned. The High Court has general oversight via the English law judicial review procedure.

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/ Injured Party) There are no specific rules for the interview of witnesses or complainants, save in relation to rape, child or sexual offence cases. Each law enforcement agency determines its own best practice, with a view to ensuring that the evidence obtained will be admissible in court. No

34 The common law power to exclude evidence at the court’s discretion was specifically preserved in s 82(3) of PACE 1984. 35 SOCPA 2005, s 110 amending s 24(5) PACE 1984. 36 CJA 1987, s 2(13). 37 The common law power to exclude evidence at the court’s discretion was specifically preserved in s 82(3) of PACE 1984.

Investigative Measures 145 person is obliged to cooperate with an investigation unless an Act requires this—eg section 2 CJA 1987. However, there are provisions for compulsory interviews with witnesses for serious or complex fraud and corruption cases, terrorism cases and serious or organised crime cases.38 Voluntary interviews with witnesses can take any form, and can be conducted on the telephone, by e-mail, in person or by questionnaire. Officers from the law enforcement agency concerned will approach witnesses, including complainants. Officers are specially trained for interviewing complainants in sexual and child offence cases. Witness interviews and contacts with witnesses are recorded in writing and disclosed to any accused person under CPIA 1996. If a witness is asked to make a formal written statement for presentation to a court, then he will either be asked to write it himself, or he will be asked to read it (or listen to it, in translation if appropriate) and sign that the contents are true to the best of his knowledge and belief. If a witness requires it, an interpreter will be provided. His statement and that of the interpreter will be served on or disclosed to the defence as above. Prior to the trial a list of witnesses interviewed and any statement relied upon by the prosecution will be served on the accused, or disclosed to him under CPIA 1996. The defence lawyer will have no part, and will not be present, at the interviewing of any witnesses by the prosecution; but after charge a Defence lawyer is entitled to interview any witness (including witnesses already interviewed by the prosecution) for the defence. As previously mentioned, there is no duty for a witness to cooperate with investigative authorities unless a notice, disclosure or production order has been issued, and the rules do not differ in relation to legal persons as opposed to natural ones. The special conditions for financial investigations are the same as those relating to suspects; special powers to require information, including financial information from potential witnesses and others under Proceeds of Crime Act 2002, for cases involving money laundering and confiscation; SOCPA 2005 for cases involving serious or organised crime and CJA 1987 for cases involving serious or complex fraud and corruption. The main relevant restriction on statutory notices, disclosure or production orders is that material covered by legal professional privilege (which applies in respect of defined communications with all qualified lawyers) may not be required to be produced (orally or in document form) under any Act in England and Wales. Lawyers may only be required to produce the name and address of their client.39 Law enforcement agencies are responsible for the conduct of witness interviews, as they are for all of their other official activities; and they all operate complaints procedures for persons who are not satisfied with their treatment. Witnesses may complain to the Police Complaints Authority, or to the Parliamentary Commissioner for Administration, who deals with complaints about government departments and agencies.

4. Arresting the Suspect and Detention for Questioning PACE 1984 section 24(6)40 provides that where a constable (police officer) has reasonable grounds for suspecting that an offence has been committed, is being committed or is 38 39 40

CJA 1987, SOCPA 2005. Eg CJA 1987, s 2(9). As amended by SOCPA 2005, s 110.

146 England about to be committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. PACE Code of Practice G applies to all arrests made after 31 December 2005. A lawful arrest requires two elements: — —

a person’s involvement or suspected involvement in the commission of a criminal offence; and reasonable grounds for believing that the person’s arrest is necessary.

The law requires the officer to arrest only if it necessary to do so.41 However, the preconditions are widely drafted and include the necessity to allow prompt and effective investigation of the offence. In other cases, the police will have to apply to a court for a warrant of arrest. A constable may arrest for any offence. Other persons may do so only if the offence is actually being committed in front of them and it is necessary to prevent physical harm or damage to property, etc.42 Arrest does not require any authorisation, though it is unlawful if the conditions set out in PACE 1984 section 24 as amended are not present. Arrest may also be made by police acting under a warrant issued by a court. A warrant may be applied for by a police officer, or issued by a court (eg when a person fails to answer a summons to attend court). In the case of a warrant, a single judge of the magistrates’ court or Crown Court (a warrant may be issued by either court, depending on which has jurisdiction to try the offence concerned). In other cases, a constable may arrest on his own authority. Other law enforcement officials, such as Revenue and Customs officers, normally must apply for a warrant from the court. A warrant is written, but it does not require the reason behind its issue to be stated on its face. Other arrests and the reasons for them are recorded by the officer and the custody officer43 (if the arrested person is detained), in writing. If a person considers he has been wrongfully arrested, he may apply to the High Court for judicial review; and he also has the right to sue the police in the civil courts for wrongful detention, and to obtain damages. There is no judicial oversight of arrests in the continental sense. On arrest the arrested person must be informed that he is under arrest, and informed of the grounds for his arrest; either at the time, or as soon as practicable.44 He must also be taken to a police station as soon as possible. He must be cautioned on arrest, and again before he is interviewed about the offence. An arrested person is entitled by law to have a person notified of his arrest. This may include his High Commission or embassy. This may be delayed on the authority of a senior officer if immediate notification is likely to prejudice the investigation, alert other suspects or hinder recovery of criminal property.45 An arrested person is also entitled to call his lawyer, or to have a lawyer provided free of charge. This right may be delayed for reasons given above.

41 PACE 1984, s 25 contains various preconditions relating to failure to provide satisfactory identity or address, prevention of harm, disorder or damage to property, etc. 42 PACE 1984, s 24A inserted by SOCPA 2005. 43 PACE 1984 Code C requires a custody officer at every police station. He is responsible for the detained person’s rights, welfare and conditions. 44 PACE 1984, s 28. 45 Pace 1984 Code C and Annex B.

Investigative Measures 147 Reasons for delay in allowing any of the above-mentioned rights must be recorded.46 An accused person is under no obligation to cooperate with investigative authorities, but under some circumstances, a refusal to cooperate will have consequences later in the process, and therefore, before being questioned about an offence and arrested person must be given the PACE 1984 caution warning him of this possibility. As legal persons cannot be arrested, if one is suspected of committing a criminal offence, a summons will be issued by the court requiring a representative to attend court. It is not required that a defence lawyer attend or be involved in the arrest of a suspect. If a person is brought to court on a warrant, a defence lawyer is entitled to be present and to be heard. An arrested and detained person has the right to have a lawyer present when he is interviewed. In some circumstances, it will be necessary to provide for the suspect some sort of assistance. PACE 1984 Code C requires an interpreter or appropriate adult to be present when a vulnerable arrested suspect or juvenile is interviewed. When he is first brought to the police station, the custody officer may use an interpreter to explain the arrested person’s rights to him, though translated material is available in commonly used languages. Interpreters are free for suspects, though not for third parties. The custody officer is in charge of the arrested person at a police station. He may refuse to allow the arresting officer to interview the suspect if he considers he is unfit to be interviewed (eg by reason of intoxication or illness). The custody officer is responsible for the arrested person’s wellbeing and for compliance with the codes whilst he is detained.

5. Pre-charge Custodial Detention An arrested person may be detained only if the police do not have enough evidence to charge him and there is good reason to believe that further evidence can be obtained by continuing the detention.47 Normally detention cannot last more than 24 hours, unless it is extended by a Police Superintendent (up to 36 hours) or a court (up to 96 hours) for further necessary questioning. For serious offences, eg those under the Terrorism Act 2006 (up to 28 days) and the Drugs Act 2005 (persons suspected of swallowing drugs), specially extended periods of detention are possible. There are no special conditions for financial investigations. Extended detention can in practice only be authorised for indictable offences—those which, if committed by an adult, are triable on indictment (in the Crown Court), whether they are exclusively so triable or are triable either way.48 It is PACE Code C which places restrictions on the pre-trial detention of suspects, and regulates its operation. All periods of detention after the time of arrest must be regularly reviewed by a review officer appointed at the police station. Continued detention for up to 36 hours can be authorised by a senior police officer. Further detention up to 96 hours can be authorised by a court. Before deciding whether to continue detention, the senior officer must advise the detainee and his solicitor if available, and allow them to make representations

46 47 48

PACE 1984 Annex B. PACE 1984. Interpretation Act 1978.

148 England against it.49 If the defence solicitor is not at the police station, representations may be made by phone or in writing. Where the police decide to seek permission for extended detention of a suspect, the arresting or interviewing officer (if different) or the officer in overall charge of the case, will apply to a more senior officer or to a court for permission. If authorisation is granted, the authorisation and the reason are recorded in writing. The detained person is informed orally of the fact that further detention has been authorised. He or his lawyer may make oral representations against the decision at the time. As above, such a decision is susceptible to judicial review under certain circumstances, insofar as an application to the High Court for specific relief from an administrative Act or failure may be made. The custody officer, the review officer and the senior officer are all subject to the control of the Chief Constable and senior officers of the police force concerned; and ultimately of the court; but there is no judicial oversight in the continental sense.

6. Interception of Postal Communications (Letters) The Regulation of Investigatory Powers Act 2000 (RIPA) governs all forms of covert interception of communications, including the interception of post in the course of transmission; and surveillance and the use of covert human informants.50 It commences (s 1) by making it a criminal offence unlawfully to intercept, acquire or disclose private communications on public systems, but provides detailed procedures and codes of practice under which the police, security services and a limited number of other law enforcement agencies may lawfully undertake these activities. The operation of the Act is overseen by independent commissioners, and a tribunal is established for investigating and hearing complaints.51 Suspicion is not a criterion for using the powers under the Act. The powers are granted for permitted purposes only, and use of them must be both necessary and proportionate. Warrants for the interception of ‘live’ communications in the course of transmission can only be issued by the Secretary of State for the Home Office to a limited number of public authorities.52 Interception without warrant is possible in limited circumstances, either by law enforcement agencies authorised to conduct directed surveillance (dealt with below) or by postal and communications service providers for operational purposes.53 Note that post which has been delivered may be seized during a search under warrant. Such post is not covered by RIPA 2000. Postal communications data may be intercepted and disclosed under CPIA 2000 if it necessary in the interests of national security; to prevent or detect crime; to prevent disorder; in the interests of the economic wellbeing of the UK; to collect taxes etc; in an emergency to prevent death or injury; or for any other purposes specified by the Secretary of 49 PACE 1984 Code C: other persons having an interest in the detainee’s welfare may also be permitted to make representations. 50 This term means the interception of communications in the course of transmission by means of a public postal service or a public communication system. It covers letters, packages, telephone calls, radio and e-mails. 51 The Investigatory Powers Tribunal. 52 Chief Constables of Police, the Security and Defence Intelligence services, SOCA, HMRC or a competent overseas authority acting under MLA arrangements. 53 RIPA 2000, ss 3 and 4.

Investigative Measures 149 State.54 An Interception of Communications Code of Practice provides detailed guidance on the preconditions for obtaining a warrant. The statutory criteria do not include offence type; however, the preconditions are unlikely to be met if the offence is less than serious. The conduct authorised must be necessary, ie a justifiable interference with Article 8 rights; and also proportionate to what is sought to be achieved. Offence category matters when renewing interception warrants, as warrants may be renewed beyond the standard three months’ duration for indictable (serious) offences only. Very limited use of intercepted material is permitted in legal proceedings and it is generally not admissible in evidence at a criminal trial. The exclusions and restrictions are extremely complex—see RIPA 2000, sections 17–18. The Home Office has issued Codes of Practice under RIPA 2000 and the Codes themselves are admissible in evidence in both civil and criminal proceedings. RIPA 2000 does not provide any specific protection for legally privileged communications, but special consideration is given to interceptions which may involve these or relate to communications between a lawyer and his client.55 There are two types of interception warrant. Under RIPA 2000, section 8(1), a warrant may be issued in respect of communications carried on any postal service or telecommunications system as defined in section 2(1). Under section 8(4) external communications may be intercepted, whether sent and/or received outside the British Isles. Such warrants can only be obtained by a limited number of public bodies, and a warrant may only be issued by the Secretary of State, or a senior Home Office official in emergencies. Authorisation in the form of a warrant is applied for by specially trained officers of the public bodies specified in the Act, themselves authorised by senior officers.56 Only the Secretary of State may issue interception warrants. Section 3 RIPA 2000 allows for some interception of communication in limited circumstances without a warrant, but for most interceptions a warrant must be applied for by an authorised person (s 5 RIPA 2000). The Secretary of State personally authorises a warrant, though a senior Home Office official may sign it. The warrant is written. Records must be kept of the reasons, duration and any modifications made. There are strict record-keeping requirements under RIPA 2000 and the Interception of Communications Code of Practice. When an interception warrant is granted, postal authorities will be notified of it by warrant. The subject will not be notified, for obvious reasons. There is no requirement that any legal professional be notified or be present on behalf of the subject of the warrant. As with measures detailed above, there is judicial review of such warrants in the English law sense of the term, though a suspect may not be aware he is under surveillance and this may not emerge in court. Instead, RIPA 2000 makes provision for complaints to be made ex post facto to the Investigatory Powers Tribunal or the Interception of Communications Commissioner, who has direct oversight of RIPA operations (see below).

54 Postal communications data is defined in CPIA 2000, s 21(4) to include contents, traffic data and other information relating to communications carried by public postal services. 55 Interception of Communications Code of Practice, issued September 2008. 56 RIPA 2000 specifies officers not below the rank of Superintendent, though if confidential material is to be obtained, Chief Constables must authorise.

150 England Unless an interception is authorised under RIPA 2000, any person intentionally intercepting or disclosing communications data without permission may commit an offence under RIPA 2000 section 1. There are strict tests of necessity and proportionality for interception warrants. The Interception of Communications Code of Practice requires that particular consideration be given to any infringement of the privacy of individuals who are not the subject of the intended interception, especially when the communications relate to confidential religious, medical, journalistic or legally privileged information or material. An application for a warrant should draw attention to any unusual risk of collateral infringement of privacy. Postal authorities are under a duty to cooperate with a warrant and are relieved from the risk of prosecution for unlawfully disclosing data if they disclose it to relevant public authorities (defined in CPIA 2000 or orders made under it). There are no special rules for legal persons or financial investigations. The use of interception warrants requires the involvement of very senior officers in the public bodies concerned. The operation of RIPA 2000 is also overseen by commissioners appointed under the Act. The Interception of Communications Commissioner provides independent oversight of the exercise and performance of the powers and duties contained in the Act.57 RIPA 2000 also establishes an independent Investigatory Powers Tribunal of senior judges to investigate and hear complaints about the Act.

7. Interception of the Contents of Telecommunications (Content Data) RIPA 2000 and its Codes of Practice govern all forms of real time interception of public communications systems: postal, electronic and telephonic. However, e-mails which have been opened, or tape, video or electronic recordings once they have been made may be acquired as historic information under PACE 1984 search warrants or by service of statutory notices or orders (see above). This section assumes that real time contents are being intercepted. The acquisition of historic communications data is dealt with below. Generally, the interception of content data is governed by the same rules and procedures as the interception of letters. Thus, the gravity of any suspected offence is not a criterion, and there are restrictions under the Code of Practice, though there is no specific exclusion for legally privileged communications. Likewise, the procedure of obtaining a warrant for interceptions is the same, although interception without warrant is possible if one party consents and directed surveillance by means of interception has been authorised under Part II of the Act.58 In all other respects, the facts set out above in relation to letters apply equally to content data. Interception is always clandestine unless it is carried out by communications service providers (CSPs) with full consents from both sender and recipient. The penalties for even

57 There is also an Intelligence Services Commissioner to oversee the activities of the civilian and military security services. 58 RIPA 2000, s 3(2).

Investigative Measures 151 inadvertent interception without actual consents have been increased to a maximum of £50,000.59

8. Monitoring of Telecommunication Traffic Data RIPA 2000 distinguishes between (a) interception of (real time) communications in the course of transmission; (b) acquisition and disclosure of historic communications data (including traffic data) ex post facto; (c) covert surveillance; and (d) the use of covert human intelligence sources. Monitoring traffic in ‘real time’ is treated as a form of interception, the rules for which were examined above. Acquisition of traffic data60 ex post facto is permitted for the purposes laid down in the Act.61 The procedures for this are slightly less strict than for the interception and the authorisations last longer. For the purposes of this questionnaire, the acquisition of ex post facto traffic data is dealt with in this question. The relevant Code of Practice is for the acquisition and disclosure of communications data. The gravity of the offence is not a criterion. The permitted purposes for the acquisition and disclosure of communications data are narrow (see above) and the measure must always be both necessary and proportionate. Legal privilege cannot apply to traffic data, only to the contents of communications. RIPA 2000 defines three types of communications data and different public bodies and law enforcement agencies are authorised to obtain different types.62 Consideration must always be given to any actual or potential infringement of the privacy of individuals who are not the subjects of the investigation. Applications for authorisation and Notices under RIPA 2000 are subject to inspection by the Interception of Communications Commissioner and complaints may be made to the Investigatory Powers Tribunal. Communications Providers must cooperate with an authorised Notice requiring traffic data. However, they are entitled to charge the costs they incur in doing so to the public authority concerned. Measures under RIPA 2000 are executed by authorised officers of the law enforcement agencies specified in RIPA 2000 and orders made under it.63 Each agency also appoints a Single Point of Contact (SPOC) officer, specially trained to facilitate lawful acquisition

59 Ibid s 3 allows service providers to carry out interceptions for operational purposes. The Lawful Business Practice Regulations 2000 apply to interceptions within commercial firms, for the purpose of carrying on a business. S 3(1) has been amended by the Regulation of Investigatory Powers (Monetary Penalty Notices and Consents for Interceptions) Regulation 2011 (SI 2011/1340) to implement the EU E-privacy Directives 2002/58/ EC and 95/46/EC. 60 Traffic data does not include the contents of the communication, but covers subscriber details and itemised billing data: RIPA 2000, s 21. 61 Communications data may only be obtained if it is necessary in the interests of national security, for the purpose of preventing or detecting crime or preventing disorder, in the interests of public safety or public health, collecting taxes or in an emergency preventing death or injury, RIPA 2000, s 22. There are further restrictions where the purposes are public safety, health or the collection of taxes: see the Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003/3172). 62 RIPA 2000, s 21: traffic data, subscriber data and itemised billing data. 63 Police, SOCA, HMRC, the Security Services and public authorities listed in the Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003/3172); the Regulation of Investigatory Powers (Communications Data) (Amendment) Order 2005, the Regulation of Investigatory Powers (Communications Data) (Additional Functions and Amendment) Order 2006.

152 England of communications data and effective cooperation between a public authority and communications service providers.64 For example, in the SFO, authorisation to obtain data from a communications service provider may be granted to an officer by a senior member of the SFO (formerly an assistant director, now called a head of domain). Applications for authorisation are routed through the SPOC, who will advise on the appropriateness of the application and will prepare the necessary paperwork. There are no special rules relating to legal persons or financial investigations. The measures specified above require authorisation. The Act provides two alternative means of acquiring communications data: — —

an authorisation under section 22(3); and a Notice under section 22(4).

The person conducting the investigation (called ‘the Applicant’ in RIPA) will apply for the measure sought, and those measures can be granted by people who are classified as ‘designated persons’ under RIPA 2000. The ranks of RIPA ‘designated persons’ (officers) are prescribed by law. Such officers must have a current working knowledge of human rights legislation. A designated person is a person holding a prescribed office in the agency concerned.65 Such a person may either grant a junior officer’s application to serve a Notice for the acquisition of communications data, or may issue a Notice himself to the Communications Service Provider concerned.66 Any authorisation granted will usually be written; though oral applications can be made in exceptional circumstances. The revised draft Code of Practice requires that detailed records be kept of all applications, authorisations and Notices given under RIPA 2000. There is judicial oversight available of measures authorised, in that RIPA provides for oversight by the Interception of Communications Commissioner. Complaints may be made to the Investigatory Powers Tribunal. And measures granted are recorded, as the Acquisition and Disclosure of Communications Data Draft revised Code of Practice provides detailed record keeping requirements. As in the previous section, communications service providers are notified of measures which have been obtained by Notice served by a SPOC. Subjects are not notified, and it is not required that lawyer be informed of the execution of the measure. Judicial review is provided for, as detailed above, and the Interception of Communications Commissioner appointed under RIPA 2000 is in control of the execution of these measures. The Investigatory Powers Tribunal, staffed by senior judges, may investigate and hear complaints about the operation of the Act.

9. Surveillance in Public and Private Sphere (Acoustic and Visual) RIPA 2000 defines two types of surveillance: directed and intrusive.

64 This is an internal requirement. Training is provided by the police for their own and other agencies’ officers. SPOCs role is to only to advise investigation officers. 65 Regulation of Investigatory Powers (Communications Data) Order 2003 (SI 2003/3172). 66 ‘The Applicant’ is a person involved in conducting an investigation or operation, in the same agency as the designated person.

Investigative Measures 153 Directed surveillance is covert, not intrusive and undertaken for the purposes of a specific investigation.67 It is likely to result in the obtaining of private information about a person. Observation of an area or public place by officers without a specific human target is not directed surveillance. Intrusive surveillance, by contrast, is surveillance carried out in relation to residential premises or private vehicles, involves the presence of an individual on the premises or in the vehicle, or is carried out using a surveillance device. The gravity of the offence is not a criterion. The permitted purposes are narrow and the measure must always be both necessary and proportionate, as with all measures under RIPA 2000. The RIPA 2000 Covert Surveillance Code of Practice provides detailed rules relating to the conduct of surveillance and requires extra care where legally privileged material, confidential personal information and confidential journalistic material may be involved.68 Para 3.6 of the Code of Practice states that: in general, an application for the use and conduct of a source that is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances … the application should include, in addition to the reasons why it is considered necessary for the use or conduct of a source to be used, an assessment of how likely it is that information subject to legal privilege will be acquired … this assessment will be taken into account by the authorising officer in deciding whether the proposed use or conduct of the source is necessary or proportionate for a purpose under s 29 RIPA 2000. Similar consideration must also be given to authorisations which involve confidential personal information and confidential journalistic material.

Depending on whether the surveillance is directed or intrusive, different procedures for obtaining authorisation for it will apply, as each requires particular authorisation procedures. In addition, if entry on or interference with property or with wireless telegraphy is involved, there are further special procedures.69 Authorising officers are obliged to take into account the risk of collateral intrusion into the privacy of persons who are not the subjects of the investigation. Measures should be taken, where practicable, to avoid or mitigate unnecessary intrusion. General observation by law enforcement officers is not specially regulated where this does not involve the systematic surveillance of an individual or the use of equipment (such as binoculars or cameras) which does more than reinforce normal sensory perception. Authorised officers of the agency entitled to use covert surveillance will execute the measure. Although authorisation is required for the measure, formal warrants are not required for covert surveillance. An officer of the agency concerned applies for the authorisation, and it will be granted by a senior officer of the agency concerned. Intrusive surveillance may be authorised by the Secretary of State, or by or senior officers of ranks designated under the Act or orders concerned. The authorisation would usually be in writing, but in urgent cases it may be oral initially, then recorded later in writing. Measures which are taken will always be recorded; the Covert Surveillance Code of Practice contains strict record keeping obligations. Records are subject to inspection by the Surveillance Commissioner.

67 Covert means it is carried out in a manner calculated to ensure that the subjects are unaware that it is taking place: RIPA 2000, s 29. 68 Covert Surveillance Code of Practice, paras 1–4. 69 Ibid paras 1–3, 5, 6.

154 England Judicial review procedures and post factum validation procedures are available; see above for the roles of the Surveillance Commissioner and the Investigatory Powers Tribunal. As the surveillance is covert, there are no notification procedures, and a defence lawyer need not be informed of the measure’s execution. There are no special rules for legal persons or financial investigations.

10. Monitoring of Bank Transactions The Proceeds of Crime Act 2002 provides for account monitoring orders to be issued by courts on the application of law enforcement agencies investigating criminal assets for confiscation, or money laundering offences.70 In respect of a confiscation investigation, there must be reasonable grounds for suspecting that the person specified in the Order has benefited from his criminal conduct. If the investigation is for civil recovery, the property must be classified as ‘recoverable property’ or associated property and the person specified must hold all or some of the property. In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person specified in the Order has committed a money laundering offence. The same form of order applies to all three different measures. In all cases there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, and that the information is likely to be of substantial value to the investigation. An order may be granted to assist confiscation or money laundering investigations under POCA 2002. An account monitoring order lasts for up to 90 days, but repeat applications may be made on expiry. An order may only be made in respect of a named person; in English law ‘persons’ include corporations. There are no special rules for legal persons. The bank or financial institution concerned is under a duty to comply with the Order, and thus co-operate with the investigative authorities. Any measure obtained under POCA will be executed by an appropriate officer of a law enforcement agency.71 Measures are subject to internal authorisation and the order is made by a court. The authorisation will be applied for by an appropriate officer, of the rank specified in section 378. Authorisation is granted by either a Crown Court or High Court Judge, depending on the nature of the investigation.72 The order is in writing. Reasons given in the application are recorded, but are not given on the face of the order. Judicial review in the English law sense, as explained above, is available in relation to POCA measures. However, there is no special external oversight for POCA as there is for RIPA. There is an emergency procedure available insofar as judicial review injunctions can be obtained ex parte and without notice (see above): ‘Any person can challenge in the

70

POCA 2002, s 370. Ibid s 378 contains provisions for the training and accreditation of officers for POCA purposes; confiscation, civil recovery and money laundering. It also designates certain ranks as ‘senior appropriate officers’ for authorising the use of POCA powers. 72 Account Monitoring Orders may be obtained from a Judge of the Crown Court in a money laundering or confiscation investigation, and from a High Court Judge for the purposes of a civil recovery investigation: POCA 2002, ss 343 and 344. 71

Investigative Measures 155 High Court the decision, action or failure to act of a public body or other body exercising a public law function.’ The measures must be recorded, and this is done by the appropriate officer being required to keep a record of the exercise of any of the POCA 2002 powers. The POCA 2002 Code of Practice requires that copies of the orders, applications, associated decisions, dates, receipts and any extensions of time granted (with reasons) be kept. Notice of the issue of an Account Monitoring Order is served on the bank or financial institution concerned. The recipient is under a duty not to disclose any information likely to prejudice the investigation. No defence lawyer need be present at or informed of the seeking or execution of such a measure. An application may be made to the court to discharge or vary an order by any person affected by it, but there is no special body overseeing the authorisation and execution of these measures. Thus, law enforcement agencies exercising POCA 2002 powers are responsible for complying with all statutory restrictions and with the Code of Practice.

11. Tracking and Tracing of Objects and Persons In English law, there are no specific provisions applying solely to the tracking and tracing of objects and persons. There are Interpol facilities for issuing alerts for tracing persons wanted by the police or other law enforcement agencies. Motor vehicles can be traced through the Driver and Vehicle Licensing Authority (DVLA). Property registers can likewise be inspected and persons and property traced through internet and commercial databases such as Experian. These are normal tools of investigations and not covered by specific legal rules or requirements, unless they involve covert interception or surveillance, see above. For tracking and tracing in the sense of interception of communications—eg if an officer follows a mobile phone signal using GPS, then RIPA 2000 will apply; see above.

12. Data Mining and Profiling Data mining is understood to be the process of extracting patterns from data. In English law this is always possible (though not always cost effective) provided none of the data is specially protected by law (eg, the Data Protection Act 1998 protects personal data as defined).73 Profiling in this context is understood to mean forensic profiling; and similar considerations apply. Data mining and profiling from legally accessible records and databases can be conducted by any law enforcement agency without specific rules other than each agency’s

73 Data subjects are given rights over the collection, storage and use of all their personal information. Sensitive personal information includes racial or ethnic origin, political opinions, Union membership, religious belief, physical or mental health, sexual life, etc. There are exemptions (DPA 1998, ss 28 and 29) from the Act for the purposes of preventing or detecting crime and other permitted purposes. Once data has been lawfully acquired, it may be mined freely provided it is for a permitted purpose.

156 England internal arrangements and resources.74 Confidential data (eg medical records) may be obtained by police officers under PACE 1984, by applying to the Crown Court for a special procedure production order. Similar orders are available under POCA 2002 and SOCPA 2005; see above. These processes may be carried out in relation to any offence, although they are usually only deployed in relation to serious repeated offences. There are no restrictions applied to the use of these processes, but, if the material being mined is legally protected, the mining must be strictly in accordance with the procedures and preconditions laid down in the Act concerned. There is no duty to cooperate with the investigative authorities unless the owner of the material has been served with a statutory notice or order requiring him to produce the material. No presence or involvement of a defence lawyer is required for any of these processes to be authorised or executed. There are no special rules for legal persons or financial investigations. The process is executed by officers of the law enforcement agency concerned. The process requires authorisation only if the Act protecting the material requires it; if the Act so requires, than the procedures to be followed are those laid down in that relevant Act. If authorisation is secured, then judicial review is available in the English law sense and under the Data Protection Act 1998. The Information Commissioner is responsible for ensuring compliance by public authorities with both the Data Protection Act and the Freedom of Information Act 2000.

13. Access to Relevant Premises (‘Crime Scene’) If the ‘crime scene’ is under the control of the victim, it is presumed that he will make the necessary invitation to the police to enter, search for evidence and conduct forensic tests. If he does not, then the police can obtain a search warrant. Search warrants are normally required for entry onto private premises without invitation.75 Powers of entry to obtain documents and evidence for specific statutory purposes are also available under POCA 2002 section 347, SOCPA 2005 section 66, and other acts. Police officers may also enter premises without a warrant in order to effect an arrest, and they may also search the premises at which they arrest a person, or which that person owns or controls at the time of his arrest (PACE 1984 ss 17 and 18). PACE 1984 Code of Practice B applies to searches with or without warrants issued under any Act. For searches without warrant, the offence must be indictable.76 The premises on which the arrested person is arrested, or where he was immediately before being arrested, may be searched, but must be searched immediately on his arrest. Arrest warrants are dated and must be executed within three months. Magistrates may place restrictions on the time of execution, but the normal rule is that searches must be conducted during reasonable hours unless the purposes of the search would be frustrated by this.

74 From publicly accessible databases, including data held by government departments and agencies under arrangements and ‘gateways’ for law enforcement agencies under Anti Terrorism, Crime and Security Act 2001. 75 Obtained, normally by a police officer, from a court under PACE 1984. 76 Indictable offences are those which, if committed by an adult, are triable on indictment (in the Crown Court), whether they are exclusively so triable or are triable either way.

Investigative Measures 157 Police officers may enter premises without a warrant and without consent for three purposes: (1) to make the arrest; (2) to search premises where the arrested person is or was immediately before his arrest; and (3) to search premises occupied or controlled by the person under arrest.77 The consent of the occupier must be sought if the arrested person is not the occupier, unless that would frustrate the purpose of the search. The general conditions for searching premises laid down in PACE 1984 Code B must be followed where possible; eg ‘searches must be conducted with due consideration for the property and privacy of the occupier(s) and with no more disturbance than necessary’.78 The occupants must cooperate with police officers lawfully searching either with or without a warrant, or they may be guilty of obstructing the police. There are no special rules for legal persons or financial investigations. Search warrants may authorise a number of officers (and others) to enter and search property. Property occupied or controlled by an arrested person may be searched without a warrant but the search must be authorised by an Inspector of Police. Otherwise a warrant must be applied for from the court. Any police or other law enforcement agency officer may apply to the court for a search warrant, which can be authorised by a judge of the magistrates’ court or Crown Court. An Inspector’s authority to search without warrant is usually written.79 A warrant is always in written form. In the English sense, judicial review is available in respect of the authorising of search warrants. However, there is no contemporaneous judicial oversight in the continental sense. Search warrants may be obtained at any time from duty courts and magistrates, thus meaning it is possible to obtain them in an emergency 24 hours a day, seven days a week. Likewise it is always possible for a search to be stopped at any time by order of a judge of the High Court under the English judicial review procedure. Searches are always recorded and documented, as every police station maintains a search register. When premises are to be searched under standard police powers, the arrested person will be told that his property is to be searched. In all other cases the warrant will be shown to the occupier of the property, or left for him. Clandestine searches are only possible under RIPA 2000, see above.80 It is not required that a defence lawyer be informed about the place and time of the execution of the measure. However, if the suspect exercises his right to legal advice and asks his lawyer to attend, this will normally be allowed if this will not impede the search. It is not necessary for the police to provide assistance to suspects or third parties, but if the officers know in advance that they will encounter persons who do not speak English or who are otherwise vulnerable, they will take an interpreter or eg social worker with them to avoid delays. There is no special body in charge of controlling the execution of searches; the law enforcement agency concerned is responsible for ensuring that the entry/search is lawful and conducted according to the law and Code of Practice. 77 78 79 80

PACE 1984, ss 17, 32 and 18. Ibid Code B, para 6.10. Ibid s 18. As part of RIPA 2000 ‘intrusive surveillance’ or under Police Acts 1994 and 1997.

158 England 14. Search and Seizure (a) Searches of Premises Search warrants are required for entry onto private premises without invitation.81 Powers of entry to obtain documents for specific statutory purposes are also available under POCA 2002, section 347 and SOCPA 2005, section 66. PACE 1984, section 8 preconditions for a search warrant are that (a) an indictable offence has been committed and (b) there is likely to be material of substantial value to the investigation on the premises. PACE 1984 Code of Practice B requires that searches of premises must be made at a reasonable hour, unless this might frustrate the purpose of the search. Warrants must be executed within three months. If a search may take a long time, ‘search and sift’ warrants are available under Criminal Justice and Police Act 2001 Part II, which permits officers to remove material for examination elsewhere. Search warrants for premises are issued under a variety of acts. The preconditions may vary slightly, but the conduct is governed by PACE 1984 and Code B of that Act. Annex A to PACE Code A contains a full list of all the acts conferring search powers. Before applying for a search warrant, the police must make reasonable enquiries about the occupants and nature of the premises. This and other relevant information will be given as a risk assessment to the court. Before executing a warrant, the officer in charge must try to obtain permission to enter from the occupier of the premises, unless there are reasonable grounds for believing that alerting him would frustrate the object of the search.82 An occupier of searched premises must be given a copy of the warrant and a notice of his rights, including his right to compensation for any damage caused by the search. The general conditions for searching premises laid down in PACE 1984 Code B must be followed where possible; eg ‘searches must be conducted with due consideration for the property and privacy of the occupier(s) and with no more disturbance than necessary’.83 Occupiers must not obstruct a search of premises or they may be guilty of an offence. Searches are executed by an officer of the law enforcement agency concerned, or a police officer.84 Several police officers or other persons may be involved in a search of premises to assist the police, in which case they must be named on the warrant.85 A warrant to search premises may only be issued by a court, but no warrant is required for a police or other officer of an agency to conduct a body search, in the circumstances where such a search is permitted. An officer of the law enforcement agency concerned will apply for a warrant to search premises, and a justice of the peace (a magistrate) or any other court may grant a search warrant for premises. The search warrant is written. It does not contain reasons on its face, though these are recorded by the court concerned and in the written application which is retained by 81

Obtained, normally by a police officer, from a court under PACE 1984. PACE 1984 Code B. Ibid Code B, para 6.10. 84 A variety of law enforcement agencies may apply for warrants under different acts, but usually a (uniformed) police officer must be present on execution. 85 Eg locksmiths, IT experts, etc. In the case of search warrants under s 2 Criminal Justice Act 1987, a member of the SFO must be present. 82 83

Investigative Measures 159 the law enforcement agency concerned.86 Search registers are maintained at every police station. Copies of warrants are kept by the court and the law enforcement agency to which they are granted. The notification requirements pertaining to searches of property are that any occupier of the premises must be given a copy of the warrant at the time of execution. If premises are unoccupied, a copy is left in a prominent place, but the search may go ahead. Deliberately clandestine searches are only possible under RIPA 2000; see above.87 It is not required that defence lawyer be notified of the measure or its execution, although if the occupier invites his lawyer to attend a search of premises, this will normally be allowed, as will the attendance of a friend or neighbour—if this will not impede the search. Further, although it is not required that assistance be provided to the suspect or third party, if the executing officer considers he may need to interview persons present on the premises and an interpreter may be needed, one will accompany the search party. Judicial review in the English law sense is available of the use and authorisation of such measures in the traditional English sense of the word. There is no special body in charge of controlling the execution of this measure; the police and law enforcement agencies concerned are responsible for ensuring compliance with PACE 1984 and the Codes of Practice. (b) Body Searches Body searches may be conducted by police officers under PACE 1984, on the grounds that the suspect may be carrying articles unlawfully obtained or possessed. Sections 43 and 44 of the Terrorism Act 2000 and section 60 of the Criminal Justice and Public Order Act 1994 also provide lawful grounds for personal searches. Personal searches may also be carried out on persons not arrested during certain searches of premises, or of persons entering sports grounds or other places where consent to searches is a condition of entry.88 Body searches are subject to the PACE 1994 Code of Practice A. The police officer must have reasonable (objective) grounds to suspect, based on facts, information, behaviour or intelligence, that the person is eg a terrorist or that there is a likelihood of finding an article of a certain kind (stolen goods, weapons, drugs etc). It should be noted that intimate body searches or strip searches are subject to PACE 1984 Code C, Annex A.89 Persons who are searched bodily must be given a receipt for any seized articles. Section 60AA Criminal Justice and Public Order Act 1994 also allows police Officers to insist on removal of face coverings if they reasonably believe that the person is wearing an item wholly or mainly for the purpose of concealing identity.

86 The law enforcement agency (LEA) keeps its written application for the warrant and the court keeps its record of the decisions made and the reasons for these. Both records are available to higher courts on appeal or judicial review, but as a normal rule the defence will not see them unless they formally challenge the lawfulness of the search. 87 As part of ‘intrusive surveillance’ or under Police Acts 1994 and 1997. 88 Searches under Misuse of Drugs Act 1971 or of school premises under Criminal Justice Act 1988 (for bladed instruments). 89 These are searches of bodily orifices other than the mouth. They are only permitted for Class A drugs or for articles which the person might use to harm himself or others.

160 England An officer performing a body search may require the removal of outer clothing and place his hands inside a suspect’s pockets, socks and shoes etc. If the person being searched resists, or refuses to be searched, he may be arrested. He will then be searched on arrival at the police station. In the case of intimate body searches for drugs etc, the detained person must consent, or be warned that failure may harm his defence. Body searches may only be carried out under the circumstances of suspicion noted above, or by Revenue and Customs at ports and airports under Customs and Excise Management Act 1979 and other acts. PACE Code A allows outer clothing only to be removed in public places, and PACE Code C Annex A requires intimate searches to be made at a hospital, surgery or police station, usually by a doctor or nurse. In the case of drugs searches, the suspect must consent, or be warned that failure to consent may harm his defence. For intimate searches medical staff are employed, except in emergencies (where physical harm is likely) when an Inspector can authorise a search by a police officer of the appropriate gender.90 Police officers searching persons must show their warrant cards (if not in uniform), explain the grounds for and purposes of the search and the person’s right to obtain a copy of the search record.91 It is not necessary to provide assistance to a suspect or third party when a body search is to be carried out, but interpreters may be used to explain matters when body searches are required. The relevant legislation specifies the circumstances in which a body search will be lawful. If it is not lawful, it will constitute an assault of the person, and the person searched may bring an appropriate civil legal action in tort for damages. An intimate search may only be authorised by a Police Inspector (or more senior rank), who must explain the reasons to the suspect. Reasons for searching persons are recorded by the officer concerned. Supervising officers must monitor the use of stop and (personal) search powers to ensure they are not being used by police officers on the basis of stereotyped images or inappropriate generalisations.92 Judicial review is available of the use and authorisation of such measures, in the traditional English sense of the words. There is no special body in charge of controlling the execution of this measure; the police and law enforcement agencies concerned are responsible for ensuring compliance with PACE 1984 and the Codes of Practice.

15. On-line Search of Computers Computer material may be required or searched for under the same conditions as any other evidential material, during a variety of types of criminal investigation. English law generally defines documents to include those stored electronically. PACE 1984 Code B requires all searches to be conducted with due consideration for the property and privacy of the occupier. Only material described in the warrant may be seized. See above for detailed measures relating to PACE 1984 and RIPA 2000. There is a duty to cooperate with the investigative authority insofar as search warrants, orders and notices must be complied with and each Act concerned provides obstruction 90 91 92

PACE Code C Annex A: Intimate and strip searches. Ibid Code A, para 3.8ff. Ibid Code A, para 5.

Investigative Measures 161 offences. The measure is executed by the officers specified in the Act concerned, and requires the authorisation specified within the relevant Act. The relevant Act will also state who is to apply for the authorisation and the form the authorisation must take. Judicial review in the English law sense is available of the grant of these measures. The measure is also recorded/documented in line with the requirements of the Act concerned. An emergency procedure exists for this sort of measure: in the case of interception of communications in real time, RIPA 2000 makes provision for urgent applications even where the Secretary of State is not available to sign the warrant. In such cases the Secretary will still personally authorise the interception after discussion on the telephone and the warrant will be signed by a senior official. Such emergency warrants last only five working days, but can be renewed by the Secretary. In all other cases, eg search warrants, these may be applied for 24/7 to duty courts and magistrates. Any notification requirements will be set out in the legislation concerned, but it is not required that a defence lawyer be informed of, or be present at, the execution of the measure. The English legal system provides for a right to apply to the High Court for judicial review of any administrative Act, which applies to measures such as this. In the case of RIPA 2000 interceptions, the Interception of Communications Commissioner provides oversight and the Investigatory Powers Tribunal has jurisdiction to investigate complaints. There is, however, no other judicial review in the continental sense of continuous oversight of the execution of the measure by a judge. There is no single special body which has official oversight of this measure in general. Only RIPA 2000 activities are subject to special oversight by commissioners and the Regulatory Powers Tribunal.

16. Freezing Freezing orders (known in English law as restraint orders) may be obtained in criminal and civil proceedings. The Act most pertinent to this questionnaire is POCA 2002, which provides for restraint orders to be issued under section 40, in general terms, when; (a) a criminal investigation has been started in England and Wales; or (b) proceedings for an offence have been started in England and Wales; or (c) following a conviction, the court has embarked on a confiscation enquiry or reconsideration of the available amount for confiscation and there is reasonable cause to believe that the alleged offender or defendant has benefited from his criminal conduct. Note that in civil proceedings for the recovery of the proceeds of unlawful conduct under POCA 2002 Part 5, specified law enforcement authorities may apply for an interim receiving order from the High Court, which has similar effect to a restraint order.93 This measure is available for any offence from which the suspect or defendant can be shown to have benefitted; there is no threshold of gravity to be passed. Restrictions on the use of the measure are that a person affected by a restraint order may apply to the court for variation or discharge on grounds of delay.94 93 POCA 2002, s 246 as amended by SOCPA 2005 which transfers the civil recovery powers to the Director of Public Prosecutions, Director of SFO and others. 94 POCA 2002, s 40(7).

162 England Restraint orders are only granted to prevent the dissipation of the proceeds of crime or of assets necessary to satisfy any confiscation order. A restraint order may be made subject to exceptions, reserving provision for reasonable living expenses, for the purposes of the subject’s trade, profession or occupation; or to other conditions at the court’s discretion. Also, third parties may always apply to the court if their interests are unlawfully affected eg if the property concerned belongs to them and not to the alleged offender/defendant. There are special provisions for recovering tainted gifts made by an alleged offender/defendant to a third party.95 This measure imposes a duty to cooperate with the investigative authorities, as restraint orders are orders of the court and must be complied with. As with measures discussed above, there are no special rules or conditions for financial investigations or legal persons. However, it should be noted, of course, that POCA 2002 investigations are invariably financial by nature. Restraint orders may only be issued by a judge of the Crown Court. The order is in writing. It does not contain reasons, but these are recorded. A restraint order may be executed by any prosecutor or by a POCA 2002 accredited financial investigator.96 As restraint orders are issued by the court, the prosecutor remains answerable to the court for his stewardship of restrained property. A receiver may also be appointed under POCA 2002. Restraint orders area always recorded in the court record. Law enforcement agencies and the CPS also keep records of restraint orders granted, and actions taken under them. Judicial review, in the English sense of the possibility of challenging the order in a higher court, is available. There is no external body charged with oversight of the grant an execution of this measure; the court makes the order and remains in charge of its execution. Failure to comply with an order may be a contempt of court. Where the measure is needed in an emergency, restraint orders may be applied for ex parte to a judge sitting in chambers. There is a duty judge available at all times for emergency applications. A copy of the restraint order must be served on all the person(s) affected. Unless the hearing is inter partes, there is no requirement that the defence lawyer be informed of the time and place of the execution of the measure, and there is never a requirement that a defence lawyer be present or involved in the execution of the measure.

17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) Data outside the ambit covered by RIPA 2000 data, including medical records and confidential personal data, financial and banking accounts and the records of public authorities covered by the Data Protection Act 1998, are normally accessible to law enforcement agencies for the purposes of their criminal investigations under specific statutory powers or ‘gateways’. Even tax records are now accessible under the Anti-Terrorism, Crime and Security Act 2001. The statutory preconditions for access vary considerably and cannot be addressed in detail in this question.

95 96

Ibid s 69. Crown Prosecutor or other law enforcement agency lawyer conducting prosecutions under an Act.

Investigative Measures 163 Broadly speaking, most documentary evidence is obtained by English law enforcement agencies using production orders (normally obtained from a court) or statutory Notices (normally an administrative Act) in PACE 1984, Criminal Justice Act 1987, POCA 2002 and SOCPA 2005. These orders and notices are designed to assist a variety of criminal investigations, and the preconditions vary slightly. They may normally be directed to any person whom there are reasonable grounds to believe may have information or documents which are relevant to an investigation. In summary: (a)

PACE 2002 (s 9 and Sch 1) production orders require a person to produce documents (or records other than documents, eg tape recordings) to the police. There are different procedures for obtaining ‘excluded’97 and ‘special procedure’98 material, but for the latter there must be reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation. (b) Criminal Justice Act 1987, sections 2(2) and (3) permit the SFO to issue Notices requiring any person to answer questions, furnish information or produce documents in connection with an investigation into serious or complex fraud or corruption, or on a request by an overseas authority.99 The Director of the SFO must have reason to believe that the person has information relevant to the investigation or documents that relate to any matter relevant to the investigation. (c) Production orders under POCA 2002, section 345 (as amended by SOCPA 2005) are issued by a court to assist confiscation, money laundering or civil recovery investigations. There must be reasonable grounds for suspecting that either a person has benefited from criminal conduct, committed a money laundering offence; or that the property is ‘recoverable’ or ‘associated’ property.100 These measures may be applied for only in relation to indictable offences of the type specified in the legislation concerned. The use of the measure is restricted, as legally privileged material may not be required to be produced. Orders and notices usually specify a time and date for compliance, though ‘immediate’ Notices for instant compliance are possible. Each Act specifies the forms and powers concerned. There are no special rules or conditions for either legal persons or financial investigations. Some orders and Notices may be directed to third parties though some are confined to the suspect or his agents. In the case of any statutory Order or Notice, there is a duty to cooperate with investigative authorities; it is normally a criminal offence to fail to comply with the Order or Notice. The measure is executed by an officer of the law enforcement agency concerned, as specified in the Act. For example, members of the SFO may issue notices under CJA 1987, section 2. Similarly, Crown Prosecutors may issue disclosure notices under SOCPA 2000, section 62. These measures require authorisation to the extent specified in the Act. For example, a section 2 Notice requiring banking information must be countersigned by the

97 Excluded material is defined in PACE 2002, s 11 and includes confidential personal and medical records and journalistic material held subject to confidentiality undertakings. 98 Special procedure material is defined in PACE 2002, s 14 any other confidential material which is not either excluded material or legally privileged as defined in s 10. 99 Or enquiries to determine whether or not an investigation should be commenced: Criminal Justice Act 1987 as amended by SOCPA 2005. 100 Defined in POCA 2002, ss 242 and 245.

164 England Director of the SFO under CJA 1987, section 2(10). Where information is sought by the SFO from another government department, section 3(3) provides that any statutory obligation of secrecy covering the information does not apply where it is disclosed to a member of the SFO. Authorisation is applied for and granted by those persons specified in the Act concerned. Likewise, the form of the authorisation will be in keeping with the requirements of the Act concerned. Judicial review is available in the English law sense, but there is no contemporaneous judicial oversight in the continental sense. There is an emergency procedure available insofar as orders and notices may be issued for immediate compliance. The measure is recorded: all orders and notices are written and detailed records are kept. Notices and orders must be served on the person to whom they are directed. The method of service (eg by post or electronic means) is specified in the Act concerned. It is not required that a defence lawyer be informed of the time and place of execution of the measure, or that they be present or involved at the execution of the measure. There is no special body in charge of controlling the execution of this measure; thus each law enforcement agency is responsible for complying with the law and any codes issued.

18. Invoking the Assistance of Experts to Examine Clues etc. There are no special rules as to this, though English law distinguishes between Expert Witnesses (who have a special status in court) and expert investigators (who do not). The police or any other law enforcement agency are free to engage experts of any kind to assist their investigations. Such experts may participate in two ways: either by helping the investigators on a day to day basis, or by making an expert statement of opinion and appearing as an expert witness at the trial. An expert witness may, with the permission of the Judge, give opinion evidence at the trial, unlike other witnesses. Experts can be engaged regardless of the gravity of the offence, providing there is an issue which is outside of the general knowledge of the tribunal of fact. There is no duty to co-operate, although if the prosecution wish the defendant to be examined by, eg, its own medical expert then the court may order this if he does not comply voluntarily. No authorisation (except possibly internal, for purposes of budget, etc) is required to engage an expert. The terms of engagement of a prosecution expert, his instructions and provisional views may be disclosable to the defence under CPIA 1996 and its Code of Practice—see above. There is no option to seek judicial review of this measure, as disclosure is a matter solely within the discretion of the trial judge.

19. Infiltration RIPA 2000 and its Code of Practice101 govern procedures relating to the use of both covert human intelligence sources (informants) and undercover police or other law enforcement

101

Covert Human Intelligence Sources Code of Practice.

Investigative Measures 165 officers.102 In law, no special authorisation for voluntary arrangements between informants and officers is necessary, though statutory procedures are laid down which law enforcement agencies are strongly advised to follow if there is any danger that the informant’s or officer’s activities may be result in a breach of Article 8.103 As with all RIPA 2000 activities, the category of offence is not a criterion. The activity must be necessary and proportionate to the circumstances of the investigation. The precise statutory grounds are in section 29(3) of the Act. Given the expense and difficulty of infiltration, it will only be resorted to in cases of serious crime. The authorising officer must balance the likely intrusiveness of the use of the source on the target and others who might be affected, against the need for the source to be used.104 The Code requires the use of a source to be carefully managed to meet the investigation objectives. (para 2.5: ‘sources must not be used in an arbitrary or unfair way’). An authorisation for the use of a source will, unless renewed, last for 12 months. Urgent oral authorisations last for 72 hours. Regular reviews must be undertaken to assess the need for use of the source to continue.105 A single authorisation may combine two or more different activities under RIPA 2000, Part II. For example, a single authorisation may combine intrusive surveillance and the use of a source. In such cases the provisions applicable to each activity must be considered separately, and the authorisation must be granted by the most senior officer. Thus where a Police Superintendent may authorise the use of a source, a chief constable must authorise use of a source combined with intrusive surveillance. The Code of Practice (para 2.7) requires a full risk assessment and the authorising officer must specifically take into account the risks of collateral intrusion. If the use of a source unexpectedly interferes with the privacy of individuals not covered by the authorisation, the activity may have to be formally re-authorised in an amended form. There is no specific regulation on covert agents committing crime. Participating informants who are involved in a crime would be entitled to claim abuse of process in court if they were subsequently charged with any offence which it had been necessary for them to commit or assist in to maintain their cover. Any law enforcement agency designated under RIPA 2000 may engage covert human intelligence sources, although authorisation will always be required. Authorisation is applied for by the applicant specified in RIPA 2000 and the Covert Human Intelligence Sources Code of Practice. Authorisation is granted by a police officer of at least the rank of Superintendent, or the equivalent rank in another designated agency. The authorisation is written, and full reasons for the authorisation are retained in the Central Record of the designated law enforcement agency. The special body in charge of controlling the execution of this measure is the Chief Surveillance Commissioner and his deputies (there are surveillance commissioners and assistant commissioners). Review of the authorising of such a measure is available: The use of any covert intelligence source is subject to the oversight of the Chief Surveillance

102 RIPA 2000, s 26(8) defines a source to include those referred to as agents, informants and officers working undercover. 103 RIPA 2000, Pt II s 80. 104 Both undercover officers and informants are included in the term ‘source’. 105 Code of Practice, paras 4.17–4.25.

166 England Commissioner. Complaints may be made by any person affected by a RIPA 2000 activity to the Investigatory Powers Tribunal, which has full powers to investigate. There is an emergency procedure available for this measure whereby in urgent cases authorisation for the use of a source may be given orally and recorded in writing later. The measure is always recorded/documented, as each RIPA 2000 designated law enforcement agency keeps a central record of all authorisations. For obvious reasons there are no notification requirements, and neither is it required that defence lawyers be informed of the execution of the measure, or be present at its execution.

20. Controlled Deliveries There is no specific legislation in the UK on controlled deliveries. HMRC and SOCA have an agreement in place to manage all instances involving controlled delivery across UK frontiers.106 However, a variety of domestic acts may come into play in relation to controlled deliveries, depending on the context. For example: —

—

—

Where drugs due to be delivered are intercepted, innocuous substances may be substituted before delivery takes place. The real drugs may then be taken by officers to a place of safety for destruction. The Misuse of Drugs Act 1971 and Regulations made under this provides some of the procedures, the Customs and Excise Management Act 1979 provides others. Where RIPA 2000 surveillance is taking place, postal deliveries may be made by eg HMRC officers instead of postal workers. Again, RIPA 2000 covers some of the activities involved, though others (such as the scrutiny of incoming overseas mail by HMRC) may be subject to different (Post Office) acts. Where in the course of undercover operations a covert human source drives a lorry containing stolen goods to a warehouse, some or all of the activities may be governed by RIPA 2000 and the relevant Codes of Practice: see above.

Thus, it is not possible to generalise in relation to these procedures. Controlled deliveries can take place with the intention of discovering criminality of any level of gravity, and there are no restrictions, as the essence of a successful controlled delivery is that it appears to be made in the normal, commercial way. However, if the delivery is made in the course of a surveillance operation or involves human sources then the RIPA 2000 requires careful consideration of collateral interference. Controlled deliveries will be executed by officers of the law enforcement agency concerned. SOCA is likely to be involved. The measure only requires internal authorisation, although if RIPA activities are involved, specific authorisation requirements may exist as laid down in that Act. There are no notification requirements for controlled deliveries, and neither is it necessary that a defence lawyer is informed of, or is present at, the execution.

106

Source: relevant UK entry in European Legal Database on Drugs.

Prosecution Measures 167 C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution Criminal proceedings in England and Wales can only commence in two ways: (1) with a person’s arrest for an offence; or (2) by the procedure known as laying an ‘information and summons’. The details of the offence and the person to be charged with it are contained in an information laid by the prosecuting authority concerned. The court then issues a summons to that person, requiring him to attend court to answer the offence.107 Anyone may report a crime to the police, by any means; but no one is obliged to inform of criminal activity unless an Act specifically requires a specified person to do so (eg under POCA 2002 section 331 where a person is required to report suspicions or knowledge of money laundering that arise in the course of his business in the financial sector). Police forces, HMRC and other law enforcement agencies make extensive use of anonymous ‘hot lines’ for reporting offences, eg ‘Crimestoppers’. There is no special form or method for reporting an offence in English law, and the police are not obliged to investigate any report. As explained above, there are numerous different prosecuting authorities in England and Wales (referred to throughout as law enforcement agencies). Most of them have their own investigators, who acquire evidence and bring it to the prosecuting lawyers for advice. The various police forces take their evidence to the CPS. If the evidence passes the twin tests of the Code for Crown Prosecutors then the prosecuting lawyers will commence criminal proceedings in either of the two ways described above. A refusal to prosecute can be challenged by way of judicial review, and it is also possible for an individual to bring a private prosecution if the state has refused to do so.

2. Unilateral Disposal of the Case (Including Remedy Against It) When deciding whether it is appropriate to bring a prosecution, or to continue with one already begun, the Code for Crown Prosecutors must be followed. If, eg because a witness dies or changes his story, the anticipated quality of the prosecution evidence falls below the threshold for the ‘Galbraith’ test, then the case may be dropped.108 The prosecution may choose to offer no evidence for a variety of public interest reasons, including eg its unwillingness to comply with disclosure obligations. Criminal proceedings may be discontinued after a defendant has been sent for trial, but before the indictment has been preferred, under section 23A Prosecution of Offences Act 1985. A maximum time period is laid down for trials of persons held in custody in England and Wales under section 77 Senior Courts Act 1981 and Prosecution of Offences Act 1985

107

But see n 2 (it will be replaced by the charge and requisition procedure once that is available). R v Galbraith [1981] 73 Cr App R 124, [1981] 1 WLR 1039 laid down the correct approach for judges faced with a defence submission that there is ‘no case to answer’ after the prosecution evidence has been given in a trial. In essence the test is ‘where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty … to stop the case’. 108

168 England sections 22A and 22B. The defendant must currently be tried within eight weeks of his committal/sending for trial, though this period may be extended by the court.109 Articles 5(3) and 6(1) of the ECHR are followed by courts in determining whether a trial can take place within a reasonable time. There is substantial case law on ‘abuse of process’ in relation to this.110 Abuse of process may also be invoked by a defendant who asserts that he is covered by an amnesty or a prosecution undertaking not to prosecute him. It may also be invoked where a prosecution is recommenced under CPIA 1996 or the Criminal Justice Act 2003, see below. A successful abuse application will result in the court ‘staying’ the prosecution and refusing to hear the case at all. Under the Criminal Justice Act 2003 section 58, the prosecution is given a general right of appeal against ‘terminating rulings’ made by the Judge during the trial, eg a stay for abuse of process, or other ruling on a matter of law which has the effect of making the prosecution for that offence impossible. The Court of Appeal may confirm the ruling (in which case an acquittal is recorded), order continuance of the trial, order a fresh trial or order an acquittal. It is always possible for the prosecution to decide to bring to trial a case that has previously been dropped before the trial had commenced. The prosecuting authority may do so on the same charges with more evidence, or on alternative charges. If the prosecutor has agreed to drop charges as part of a plea agreement, or as an inducement to secure evidence from the defendant against another, then those charges are unlikely to be re-opened, as this would constitute an ‘abuse of process’. If the trial has already commenced and the prosecution offer no evidence or there is a successful defence submission of ‘no case to answer’, the judge will direct (order) an acquittal. If only some (of several) counts on the indictment are affected the judge may order that part of the indictment to ‘lie on the file, not to be re-opened without the court’s permission’. Normally the doctrine of autrefois acquit (double jeopardy) will apply in the case of any acquittal, directed or otherwise. However, under CPIA 1996 the High Court may order a re-trial when an acquittal is found to be ‘tainted’ by intimidation of the jury or perversion of the course of justice. Part 10 of Criminal Justice Act 2003 also makes provision for the High Court, on application by the prosecution, to quash an acquittal and order a re-trial in respect of certain serious offences where there is new and compelling evidence.

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against It) There are a number of types of diversionary measures and out of court settlements known to the English legal system: (1) Police cautions, warnings and fixed penalties (with or without conditions). Police officers in England and Wales may issue simple or conditional cautions, give formal warnings or issue penalty notices for public disorder or driving offences.

109

Criminal Procedure Rules 2005. Abuse of process is a customary procedure whereby a defendant argues, before the indictment is put, that his trial will constitute an abuse of the process of the court. The court has ‘a general and inherent power to protect its process from abuse’ (Connelly v DPP [1964] AC 1254). 110

Prosecution Measures 169 These dispose of minor offences only without the need for prosecution (though cautions are recorded and the person must admit the offence in order to qualify for a caution). Crown Prosecutors can now issue a conditional caution as well.111 Cautions are recorded on the police database, but do not count as convictions. (2) Compounding. The procedure whereby a prosecution for a revenue offence under the Customs and Excise Management Act 1979, section 152 may be avoided by payment of a sum which reflects both the lost revenue and a penal amount. This process is only available in relation to Revenue and Customs offences. Compounded penalties are recorded by HMRC and statistics on them are published. (3) Plea discussions. Introduced in Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud (March 2009) and reflected in Attorney General’s Guidelines on Acceptance of Pleas (revised 2009). Note that agreements between prosecution and defence are always subject to the absolute discretion of the court to approve them. These are applicable only to serious or complex fraud arrangements.112 Plea discussions may result in an ‘agreed sentence memorandum’ being put forward to the trial judge, who may freely accept or reject it. The use of diversionary measures is restricted, as they may only be used for the offences covered by the Act concerned. It is also necessary for the suspect to agree to the use of a diversionary measure before it can be implemented. Diversionary methods usually require internal authorisation only, applied for and granted by the officers specified in the relevant acts. Police cautions require the authorisation of a senior officer. Official acts, such as authorisation, are recorded in writing, either at the time or following an emergency oral procedure. For the measures detailed, the involvement of a defence lawyer is not necessary, except in the case of plea discussions in serious or complex fraud cases, which should always involve a defence lawyer. There is a remedy against diversion and out of court settlements provided for in English law, as any such decision can be judicially reviewed.113 The victim plays no formal part in English criminal proceedings, though his or her views must be taken into consideration by the prosecution in making its decisions, including those relating to issuing diversionary remedies.

4. Reopening of the Case Closed on Different Grounds Law enforcement agencies are entirely free to open or close an investigation. The decision of the Director of the SFO to close an investigation into commercial corruption was recently challenged by an NGO as being unlawful.114 The court, rejecting the application

111

Criminal Justice Act 2003, ss 58–61. The procedure was introduced as a result of recommendations made in the Fraud Review 2006. 113 R (Guest) v DPP [2009] EWHC 594 (Admin). 114 R (on the application of Corner House Research and others) v Director of the Serious Fraud Office [2008] UKHL 60. 112

170 England for judicial review, held that, though the decisions of an independent public authority are not immune from review by the courts, it is only in highly exceptional cases that the court will disturb the decisions of an independent prosecutor and investigator. The court considered that: [T]he discretions conferred on the Director are not unfettered. He must seek to exercise his powers to promote the statutory purpose for which he is given them. He must direct himself correctly in law. He must act lawfully. He must do his best to exercise his objective judgement on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice.

5. Committing to Trial and Presenting the Case in Court (a) Committing to Trial A person arrested and charged or charged by information and summons must first appear in a magistrates’ court, where matters of bail and legal aid are decided. If the offence is indictable (ie must be tried by the Crown Court) or ‘triable either way’ (may be tried by the Crown Court or by magistrates), then the defendant is either committed or sent to the Crown Court.115 An indictable offence is defined by the Interpretation Act 1978 as ‘an offence which, if committed by an adult is triable on indictment, whether it is exclusively so triable or triable either way’. Offences are classified as indictable, summary or triable either way by the Criminal Law Act 1977, which was consolidated with other legislation into the Magistrates’ Courts Act 1980. Summary offences, or indictable offences which are tried summarily, attract a maximum sentence of six months’ imprisonment. The Act creating the offence will specify whether it is indictable only, summary only or triable either way and will also specify the maximum sentence in either case. For example, under the Proceeds of Crime Act 2002, section 334: 334 Penalties: (1) A person guilty of offences under S 327, S 328 or S 329 is liable— (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both, or (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or to a fine or to both.

This means that the offences may be tried either way, depending on the seriousness of the circumstances of the offence as determined by magistrates at a ‘mode of trial’ hearing. In cases of seriousness or complexity (as determined by the prosecuting authority), the case may be sent straight to the Crown Court under section 51 of the Crime and Disorder Act 1998. Thus, omission of subsection (a) above in the Act would indicate that the offences were only triable on indictment.

115 The Magistrates’ Courts Act 1980 governs court-based committal proceedings; but many offences are now ‘sent’ by administrative order under Crime and Disorder Act 1998, s 50A ff.

Prosecution Measures 171 An Act will also specify whether or not the consent of the Attorney General, or Director of Public Prosecutions, or any other official (such as the commissioners of Revenue and Customs) is required for any prosecution. It is accordingly impossible to give an exhaustive list of indictable offences. It is the prosecuting authority’s responsibility to ensure that there is sufficient evidence to convict the defendant when he is sent or committed for trial. Lists of witnesses’ statements and exhibits are served on the defence at the time. Further evidence may be served by the prosecution before the start of the trial and, exceptionally, with permission of the judge, up to the close of the prosecution case. Magistrates (lay judges, also called Justices of the Peace (JPs)) or District Judges (a legally qualified magistrate, who sits alone) will either try the case themselves or ‘commit’ or send it for Crown Court trial in England and Wales. Serious or complex cases may be sent direct to the Crown Court by specified prosecutors.116 The victim has no role whatsoever in English criminal procedure at this stage. The judge’s function in the Crown Court starts with the trial, but this may also include certain pre-trial hearings at which the sufficiency of the evidence may be considered. If a case has been sent direct to the Crown Court under section 51 of the Crime and Disorder Act 1998, the defendant may challenge the sufficiency of the evidence before the judge, who may dismiss the case before the proper trial begins. If the prosecution has brought an inadequate case, it may be penalised in costs. It is technically possible for an individual (including a victim) to bring a private prosecution for any offence which does not specifically require the Attorney General’s consent.117 However, the Attorney General may take over such proceedings and discontinue them if he considers this would be in the public interest, or would avoid duplication, or for any other good reason. Note that this common law right to bring a private prosecution does not confer rights to access to police evidence or reports. (b) Presenting the Case in Court Non-lawyers may present certain cases in the magistrates’ court. The CPS uses lay prosecutors in the lower court, and lay officers of law enforcement agencies appear regularly, either because they are entitled to do so under an Act, or because the court allows them to.118 Such lay presenters are invariably specially trained. Crown Prosecutors and other government lawyers employed by law enforcement agencies may appear in the Crown Court, provided they are licensed to do so by the Bar Council or the Law Society, which issue individual barristers or solicitors with practising certificates indicating the rights of audience enjoyed.119 The victim has no role in criminal procedure unless he chooses to bring a private prosecution. The Code for Crown Prosecutors requires a prosecutor to take into account the

116

Crime and Disorder Act 1998, s 51. Prosecution of Offenders Act 1985, s 6. 118 For example the Customs and Excise Management Act 1979 authorises Revenue and Customs Officers to appear in any Revenue or Customs case. 119 Legal Services Act 2007 makes it a criminal offence for a person to undertake regulated legal activities for which he does not hold the appropriate practising certificate. 117

172 England victim’s view when considering the public interest in bringing a prosecution; but he does not act for the victim in the same way as a private lawyer (Code para 4.18). As mentioned above, there are specialised bodies that may present the case instead of the prosecutor. The Act creating the offence will specify who has jurisdiction (or principal jurisdiction) to prosecute, and prosecutors will decide any conflicts informally. The Attorney General has overall responsibility for superintending prosecutions brought by any law enforcement agency. For example, if the SFO begins to investigate an individual and the police indicate that the CPS is close to bringing charges against that person for other matters, there will be a meeting to decide whether all the suspected offences should be in one trial and if so who should take responsibility for it. If the investigation reveals tax offences the HMRC will be consulted and asked to consent to a prosecution by the SFO for tax offences. In some cases CPS or SFO lawyers will present the case in court, in others a barrister from private practice will be engaged.

D. ISSUES RELATING TO DIAGONAL COOPERATION

Any Act of Parliament which provides for confidentiality or secrecy of any information held will also provide ‘gateways’ allowing that information to be disclosed to law enforcement agencies for the purposes of investigating, prosecuting or preventing crime. These gateways may impose conditions on the recipient. Even tax information is now subject to legal gateways (formerly it could only be disclosed for the purpose of investigating or prosecuting a revenue offence) under the Anti-Terrorism, Crime and Security Act 2001. Specialist modern law enforcement agencies established by statute are equipped with a ‘reverse gateway’ in the Act establishing them, which simply provides that obligations of secrecy shall not apply when information is given to an officer for the purposes of the agency.120 In all cases the agency requiring the information will submit a formal request (this may be electronic) specifying any urgency. Government agencies may freely share information obtained even under compulsory powers, provided it is used for law enforcement purposes and no charges are normally levied. In some cases the Act conferring the powers specifies other permitted disclosures: eg CJA 1987, section 3(6) contains a list of persons and organisations permitted to receive information obtained by the SFO using its statutory powers. The list includes bodies ‘having supervisory, regulatory or disciplinary functions in relation to any profession or area of commercial activity’121 and ‘any person or body having under the Treaty of the European Union ... the function of receiving the information in question’.122 Under the Data Protection Act 1998, personal information covered by the Act may be shared for the purposes of the prevention or detection or crime, or for the assessment of any tax or duty.

120 121 122

See Criminal Justice Act 1987, s 3(3). Criminal Justice Act 1987, s 3(6)(l). Ibid, s 3(6)(n).

The Rights of the Suspect/Defendant During Investigation and Prosecution 173 E. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence At common law, the method by which evidence is obtained is strictly irrelevant. Section 78 of the Police and Criminal Evidence Act 1984 (PACE 1984) gives the judge discretion to exclude evidence obtained improperly or by a trick ‘if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’123 Where evidence is obtained during an unlawful search, the judge has a discretion, not an obligation, to exclude the evidence under section 78 PACE 1984. The same applies to stolen evidence.124

2. Admissibility of Written Reports These are admissible under English law, and are often used to adduce the evidence of expert witnesses. However, a general rule of evidence is the celebrated ‘hearsay rule’, which often requires oral evidence of matters which, in other legal systems, may be proved by adducing a written report. This rule has been considerably modified by the provisions of the Criminal Justice Act 2003, which permits a limited range of hearsay evidence in criminal trials (usually when witnesses are unavailable to testify), subject to stringent safeguards.

3. Status of Evidence Obtained in Another Member State As long as evidence lawfully obtained in another MS has been obtained in accordance with the usual rules, and there has been no unfairness, then it will be admitted.

F. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence In the English legal system there is a presumption of innocence. This continues until the final verdict and means that in all criminal trials the prosecution has to prove beyond reasonable doubt that the accused person committed the crimes alleged. There are a very few specialised circumstances in which the accused himself has to prove something—where the accused alleges self-defence, or alibi, or blames someone else for the crime, then there is a burden on him to adduce evidence to support those allegations, but otherwise, the accused does not have to prove anything.

123 124

R v Looseley, Att-Gen’s Reference (No 3) [2002] 2 Cr App R 29, relating to entrapment. R v Leathem [1861] 8 Cox CC 498.

174 England 2. The Right of the Defence to Undertake Investigative Measures/Acts in their Own Right The accused can undertake any investigations it chooses. It can interview witnesses, conduct scientific tests, instruct experts, etc. Under the Crime (International Co-operation) Act 2003 the defence can ask the court to issue letters of request, to obtain evidence abroad, on its behalf. The defence can also require the attendance of particular witnesses at court and may apply for a subpoena duces tecum to ensure that particular documents are brought to court; but other coercive measures (such as search warrants) are not available to the defence. The defence is also entitled under Criminal Procedure and Investigations Act 1996 to disclosure of all relevant unused prosecution material prior to trial.

3. The Right to Legal Assistance In all criminal cases where the accused person has been arrested and detained, the accused person has a right to consult a publicly funded lawyer before his court appearance from custody. However, although the defendant is entitled to legal representation in all criminal cases, without exception, he may have to pay, or to make a contribution towards the cost if he is convicted. The defendant needs to be informed of this right: if he is in custody, he will be informed about it before he is interviewed about the offence. Otherwise, he will be informed before the first court appearance. If, notwithstanding all of this, he appears in court unrepresented, but says at that stage that he requires legal advice, the case will be adjourned for him to seek legal advice. Legal aid is available for defence representation from the time the defendant is charged with an offence, and lasts throughout pre-trial hearings until the final verdict. Legal aid may also be granted to fund an appeal.

4. The Right to have Another Person Informed About One’s Arrest The detained person may have any reasonably named person informed of their detention. If the police take the view that the person is not reasonably named, they can decline to contact the person, eg if they believe the person may be a co-accused to the crime, or could dispose of evidence related to the alleged crime. Notification may also be delayed under PACE 1984 Code C. The suspect needs to be informed of this right at the time of detention and prior to any interview by the police. There are no legal consequences for failing to observe this requirement—apart from the possibility, remote in this case, of a court’s later ruling inadmissible a statement the defendant made in an interview at which the police were in breach of the rules governing the detention of suspects.

5. The Right to Submit Written Statements A person who has been cautioned when arrested for an offence, or charged with an offence, has the right to make a written statement himself, either in addition to a police interview

The Rights of the Suspect/Defendant During Investigation and Prosecution 175 or instead of it. PACE 1984 Code C Annex D contains the procedures and the statement is given to the court. There are no restrictions on this right and the suspect will be informed of it when he is brought to the police station after his arrest, or before he is interviewed, and again when he is charged or informed he will be prosecuted. There are no legal consequences of not respecting this right; a defendant may submit his own written statement to the court at any time.

6. The Right to Ask for a Special Act of Investigation The defence does not have to seek permission to make its own investigations. It can do so without prior authority. If the defence is publicly funded (ie legally aided), there may need to be application to the court for specific funding for specific investigations—say an expert report—but otherwise, there is no need to seek authority for particular types of investigation. If the investigation sought is abroad, then the defence will have to apply to the court for the court to issue a letter of request to the foreign state, but that is the only situation where the court will have to be involved.

7. The Right to be Informed that His/Her Statements may be Used as Evidence The PACE 1984 Code C Caution must be given when a person is arrested, before he is questioned about the offence, and again at the moment of charge.125 There are no automatic legal consequences of not respecting this right, but the trial judge may refuse to admit the interview or statement in evidence under section 78 PACE above.

8. The Right to Require a Precise Wording of His/Her Statements and the Right to Full and Accurate Recording of the Statement Anything that the suspect says in consequence of being given the caution above must be recorded exactly as it is said. Interviews under caution are routinely tape recorded and the person interviewed is entitled to obtain a copy of the tape so that he can agree the typescript.

9. The Right to Refer to Documents During Interview At interview with the police, prior to charge, the suspect may be shown documents. If he wishes to produce his own documents he may ask the police who interview him for permission to access those documents—they may be at home, for example. Evidence obtained by the police in an interview that proceeded ignoring such a request would be challenged in court, and would be likely to be ruled inadmissible under section 78 PACE above.

125 ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

176 England 10. The Right to Consult Relevant Legal Acts A notice containing the basic PACE rights is given to the suspect prior to the interview. A suspect is entitled to consult a copy of the PACE codes. The interviewer must also allow the suspect to read the entire interview of another witness if that witness’s allegations are put to the suspect in the interview. However, at the time of an interview it is not likely that either a charge sheet or a draft indictment would be in existence. 11. The Right to be Informed About Possibilities of Reconciliation with the Victim This is not normally part of the interview process. If there is a victim, it would be up to the victim to indicate to the police that he/she did not want the investigation to continue. The views of the victim would be relevant to the preparation of the prosecution case, and would be taken into consideration by the prosecution. Restorative justice encourages victims and offenders to resolve their conflicts outside court.126 However, restorative justice is not routinely offered or utilised in the English criminal justice system.

12. The Right to be Informed About the Place of Detention Following charge, if there is to be any detention, the accused will of course be told where he is to be detained. He has no right to choose his place of detention, however.

13. The Right to be Informed About the Charges The charges are either presented orally to the defendant (eg following arrest) or in written form if he is served with a summons for a summary offence. They are recorded in writing and will be read out on his first appearance in court and again at the start of his trial. In the unlikely event that the charges were not read in court prior to the hearing, it would be a mistrial and the procedure would have to be recommenced.

14. The Right to Full and Accurate Recording of the Statement Anything the defendant says after charge will be recorded, and may be used in evidence. He is warned that this is his right before he is charged, and reminded that he does not have to say anything. Before the suspect is charged, he may have been interviewed (under caution), either as a potential witness or as a suspect, and any statement he made at that stage will have been recorded by the police. Depending on the place of interview, it may be either in manuscript, in a notebook, or it may have been recorded on a tape machine. The suspect is informed prior to interview how the record will be made and how to obtain a copy, although there are no automatic legal consequences of failure to do this.

126

www.restorativejustice.org.uk.

The Rights of the Suspect/Defendant During Investigation and Prosecution 177 15. Access to the File During Pre-Trial Proceedings The concept of ‘a file’ is not known in the English criminal justice system. Prior to trial the accused person will know the charges against him, and will receive copies of all the evidence (witnesses’ written statements, documentary exhibits and expert reports) that the prosecution intend to rely on at his trial. In addition, under the Criminal Procedure and Investigations Act 1996 (CPIA 1996), he will receive prior to trial lists of other ‘unused’ material in the prosecution’s possession which is relevant to the investigation. Under CPIA 1996, all material obtained by the prosecution during the criminal investigation which is relevant to the investigation must be retained and made available to the defence prior to trial, under procedures known as ‘disclosure of unused material’. Unused material is anything that the prosecution have not already served on the defence as part of the prosecution case. Only the suspect and his defence lawyer, but neither the victim nor other witnesses may have access to this material. It is possible to refuse or postpone access, but only if the court accepts that the material which the defence seek access to is of such sensitivity that it is covered by public interest immunity (PII). Sensitive material may be allowed to be redacted. It should be noted however, that PII can only be granted by a court, and is difficult to obtain. Unused material is confidential and protected by sections 17 and 18 of CPIA 1996. Onwards disclosure is only possible with permission of the court. If it disclosed onwards without this permission, then it is a breach of sections 17 or 18 and thus may be punished as contempt of court.

16. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) (a) Interpreter If the suspect does not speak or understand sufficiently English (or is deaf/mute), then an interpreter will be arranged for him for interview. After charge, when he is an accused person, the court will arrange for an interpreter. Other prosecution or police activities during the investigation and prior to charge will not be interpreted unless this is necessary (eg interviews with foreign witnesses). The defence plays no part in the investigation. Foreign language documents will additionally be translated into English before being served on the defence or presented in evidence in court. The costs of interpretation are borne at interview stage by the police and at the court stage by the court. During the court process where an accused person cannot speak/understand English, the proceedings will be interpreted orally and simultaneously for the accused. Key documents such as the indictment, eg may be translated in writing. Normally, commercial interpretation agencies are used to provide interpreters. Courts and the police will have contracts with such agencies to provide assistance. (b) Defence Lawyer The defence always has a right to a publicly funded defence lawyer as soon as he has been charged. He is also able to consult a duty solicitor on duty at all courts. There is no

178 England obligation to have a defence lawyer; however, especially if the case is complicated, the use of a lawyer is encouraged. The publicly available lawyer may be accepted by the defence, or he may choose another. At one time, defence legal aid for criminal trials was not means tested. At the time of writing there are plans to reduce the government funds spent on legal aid, and means testing has now been re-introduced.

17. The Right to Silence During the Pre-Trial Procedure CPIA 1996, as reinforced by CJA 2003, requires a ‘defence statement’ to be served on the prosecution and the court in any trial on indictment.127 This statement should identify the principal legal and factual issues to be raised by the defence at the trial and list the defence witnesses to be called. A defendant is also required to disclose details of any alibi and any expert witness on which he relies.128 The suspect is informed of this right immediately that he becomes a suspect; when he becomes a suspect, he is orally cautioned, and remaining silent is one of the rights at that stage. The consequence of the caution not being given is that any answers or information given may potentially be inadmissible. In nearly all criminal cases, there are no restrictions on the right to silence. However, in the investigation of serious or complex fraud, organised crime, terrorism or in financial investigations, compulsory questioning may be used. The answers to questions posed in such cases may not be used against the accused person at his trial, unless he introduces them himself. If the questioning is compulsory, it would be a separate offence to refuse to answer specific questions, or to produce relevant documents.

18. Rights of Legal Persons in Criminal Proceedings Legal persons may only be questioned, or interviewed, through their representatives. The same rules detailed above relating to individuals apply.

127 The same result has been achieved in summary proceedings by case law; R (DPP) v Chorley Justices and another [2006] EWHC 1795 (Admin). 128 Criminal Procedure Rules 2005 (SI 2005/384) (L4), Pt 15.

5 Estonia JAAN GINTER

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

T

HE ESTONIAN CRIMINAL procedure distinguishes between investigation, prosecution and bringing to judgment. Investigation is the stage of criminal procedure in which the Police and Border Guard Board, Security Police Board, Tax and Customs Board, Competition Board, Military Police, Environmental Inspectorate, the Prisons Department of the Ministry of Justice and prisons identify suspects and collect evidence in criminal cases.1 In the official translation2 of the Code of Criminal Procedure (CCP) the English language term ‘prosecution’ is employed to refer to the stage at which a judge who receives a statement of charges verifies the jurisdiction over the criminal matter and rules on whether to prosecute the accused at trial, or return the statement of charges to the Prosecutor’s Office or terminate the criminal proceedings. In doctrine the English language term ‘prosecution’ is employed in a much broader sense than in the official translation of the CCP, and refers to activities of the Prosecutor’s Office in criminal cases: preparing charges and representing public prosecution in court.3 Neither Estonian legislation nor Estonian legal doctrine employs the term ‘bringing to judgment’. The CCP makes a distinction between ‘pre-trial procedure’ (from reporting a crime and commencement of criminal proceedings to preparation of charges) and court proceedings (including simplified proceedings).

1 Estonian Code of Criminal Procedure, § 31, Official Gazette RT I 2003, 83, 558, as amended by RT I, 09.07.2012, 2. Available: https://www.riigiteataja.ee/akt/109072012005?leiaKehtiv. Translation into English available: www.legaltext.ee/et/andmebaas/paraframe.asp?loc=text&lk=et&sk=en&dok=X60027K6.htm&query=krimi naalmenetluse&tyyp=X&ptyyp=RT&pg=1&fr=no. 2 Translation into English available: www.legaltext.ee/et/andmebaas/paraframe.asp?loc=text&lk=et&sk=en& dok=X60027K6.htm&query=kriminaalmenetluse&tyyp=X&ptyyp=RT&pg=1&fr=no. The translation is official in the sense that it is offered on the Ministry of Justice webpage, but the English language version is not legally binding. 3 See eg M Sillaots, ‘Admission and Confession of Guilt in Settlement Proceedings under Estonian Criminal Procedure’ (2004) 1 Juridica International 116–24; A Nõmper, ‘Criminal Prosecution of Doctors of a Child of Jehovah’s Witnesses’ (2000) 4 Juridica 212–23 (in Estonian).

180 Estonia 2. Sources of Criminal Procedural Law The sources of criminal procedural law in Estonia are: (1) the Constitution of the Republic of Estonia; (2) the generally recognised principles and provisions of international law, and international agreements binding on Estonia; (3) the CCP and other legislation which provides for criminal procedure; (4) decisions of the Supreme Court (Riigikohus) in issues which are not regulated by other sources of criminal procedural law but which arise in the application of law.4 Decisions of the Supreme Court are openly mentioned as a source of criminal procedural law in issues which are not explicitly regulated by domestic or international law. The decisions of the ECtHR and the ECJ are regarded as official interpretations of international and European law respectively.

3. Bodies Carrying out Investigation and Prosecution (a) Police The Police and Border Guard Board and the Security Police Board identify suspects and collect evidence in criminal cases. Investigative bodies perform the procedural acts provided for in the CCP independently, unless the permission of a court or the permission or order of a Prosecutor’s Office is necessary. An investigative body has the right to demand submission of a document necessary for the adjudication of a criminal matter. (b) Prosecution Service A Prosecutor’s Office directs pre-trial proceedings and ensures the legality and efficiency thereof. The authority of a Prosecutor’s Office in criminal proceedings is exercised independently by the prosecutor in the name of the Prosecutor’s Office and the prosecutor is governed only by law. A Prosecutor’s Office prepares charges and represents public prosecution in court.5 Prosecutors’ Offices are competent to: (1) perform procedural acts when necessary; (2) be present at the performance of procedural acts and intervene in the course thereof; (3) terminate criminal proceedings; (4) demand that the materials of a criminal file and other materials be submitted for examination and verification; (5) issue orders to investigative bodies; (6) annul and amend orders of investigative bodies; (7) remove an official of an investigative body from a criminal proceeding;

4 5

CCP, § 2. CCP, § 30.

General Aspects of the Procedure 181 (8) alter the investigative jurisdiction over a criminal matter; (9) declare a pre-trial proceeding completed; (10) demand that an official of an investigative body submit oral or written explanations concerning the circumstances relating to a proceeding; (11) assign the head of the probation supervision department with the duty to appoint a probation officer; (12) perform other duties arising from the CCP in pre-trial proceedings.6 (c) Investigative Judge A preliminary investigation judge is a county court judge who, sitting alone, performs the duties assigned to him or her by the CCP in pre-trial proceedings. He may authorise: — seizure and examination of postal or telegraphic items;7 — search of a notary’s office or advocate’s law office; — collection of evidence by intrusive surveillance activities (covert examination of postal or telegraphic items; wiretapping or covert observation of information transmitted through technical communication channels or other information; staging of criminal offence); — arrest; — imposing bail instead of arrest.8 (d) Specialised Agencies The Tax and Customs Board (in the case of tax fraud and criminal offences involving violation of customs rules), Competition Board (in the case of criminal offences relating to competition) and Military Police (in the case of criminal offences relating to service in the defence forces and war crimes), the Environmental Inspectorate (in the case of criminal offences relating to violation of the requirements for the protection and use of the environment and natural resources), and the prisons and the Prisons Department of the Ministry of Justice (in the case of criminal offences committed in prisons and criminal offences committed by imprisoned persons) identify suspects and collect evidence in criminal cases.9 The division of labour between the Police and Border Guard Board and the Security Police Board is decided by the Government.10 For reasons of expediency, a Prosecutor’s Office may alter the investigative jurisdiction. Pre-trial proceedings are conducted by the Security Police Board in following cases: (1)

6

Penal Code §§ 89–9311 (offences against humanity) and Penal Code §§ 110–12 (offences against international security), Penal Code § 114 subsection 7 (murder

CCP, § 213. CCP, § 89. 8 CCP, § 21. 9 CCP, §§ 31 and 212. 10 Official Gazette RT I 2009, 65, 448 Available: www.riigiteataja.ee/ert/act.jsp?id=13327530. 11 Official Gazette RT I 2001, 61, 364 as amended by RT I 2010, 29, 151. Available: www.riigiteataja.ee/ert/act. jsp?id=13326359. Translation into English available: www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X 30068K8&keel=en&pg=1&ptyyp=RT&tyyp=X&query=penal+code. 7

182 Estonia

(2)

(3)

by using an explosive device or explosive substance), Penal Code § 151 section 2 (incitement of hatred if it causes the death of a person or results in damage to health or other serious consequences, or it was committed by a person who has previously been punished by such act, or it was committed by a criminal organisation, Penal Code §§ 231–373) (offences against the Republic of Estonia and acts of terrorism, membership in terrorist organisation, preparation of and incitement to acts of terrorism, financing and support of acts of terrorism) and Penal Code §§ 241–43 (disclosure of state secrets and classified information of foreign states, publication of state secrets and classified information of foreign states through negligence, communication of internal information), Penal Code § 248 section 2 subsection 2 and section 3 (illegal entry into territory, building or premises enjoying diplomatic immunity if committed by using threat with a weapon, any other object used as a weapon, an explosive device or explosive substance or if serious consequences or major damage are thereby caused), Penal Code § 251 (assumption of authority in defence forces), Penal Code § 252 section 2 subsection 2 and section 3 (illegal entry into national defence area, building or premises if committed by using threat with a weapon, any other object used as a weapon, an explosive device or explosive substance, or if serious health damage is thereby caused), Penal Code §§ 310 (unlawful bringing of charges by a prosecutor), 311 (knowingly making of unlawful decision by judge) and 415 (unlawful handling of explosive device or essential component thereof); Penal Code § 327 sections 2 and 3 (mutiny in prison) if committed by using an explosive device or explosive substance, Penal Code § 392 (illicit import and export of prohibited goods or goods requiring a special permit) if the goods are or radioactive substances, explosive substances, strategic goods, firearms or ammunition, Penal Code § 405 section 2 and 3 (causing explosion, if committed by using an explosive device or explosive substance, or if committed by using nuclear energy or in a dangerous enterprise or an enterprise liable to be affected by a major accident)—if more than 200 grams of explosive substances were involved, Penal Code § 414 (unlawful handling of explosive substances)—if more than 200 grams of explosive were involved, and Penal Code § 416 (violation of requirements for handling explosive substances or pyrotechnical products)—if explosive substances were involved; Penal Code § 201 (embezzlement), Penal Code §§ 293–98 (accepting of gratuities, accepting bribe, arranging receipt of gratuities, arranging bribe, granting of gratuities, giving bribe), Penal Code § 299 (counterfeiting or falsification of documents by officials), and Penal Code § 3001 section 2 (violation of a procedural restriction established by the Anti-corruption Act to the extent of more than 320,000 euros or if the transaction or decision involves a for profit organisation that acts according to the orders given by or in the interests of or on behalf of the public servant)—if the violation is committed by the President, a member of the Parliament (Riigikogu), a member of the Government, the Auditor General, the Chancellor of Justice, a judge, a prosecutor, a higher official of a government agency, Chancellery of the Parliament, Office of the President of the Republic, Office of the Chancellor of Justice, State Audit Office, a court, high-ranking

General Aspects of the Procedure 183

(4)

(5)

police officer, high-ranking officer of defence forces or a person in charge of local governments of Tallinn, Tartu, Narva, Pärnu, Kohtla-Järve or Jõhvi; Penal Code §§ 255 or 256 (membership in a criminal organisation or formation of a criminal organisation)—if it is committed by an official listed in the previous section; Penal Code § 3113 (knowingly unlawful termination of or promise to terminate criminal proceedings), Penal Code § 315 (unlawful surveillance activities and covert collection of information) and Penal Code § 316 (removal and fraudulent creation of evidence)—if it is committed by a high-ranking police officer;

In cases in which a police officer of the Security Police Board is suspected of committing crimes punishable by Penal Code §§ 201, 2172, 293–3001, 3113, 315 and 316 the Police and Border Guard Board conducts pre-trial proceedings.

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle Investigative bodies and Prosecutors’ Offices are required to conduct criminal proceedings upon the appearance of facts referring to a criminal offence.12 In practice it happens that police authorities do not open an investigation before receiving a formal complaint from the victim. In Estonian doctrine, the stage of prosecution is deemed to start from preparation of charges. A Prosecutor’s Office prepares the statement of charges if the Prosecutor’s Office is convinced that the necessary evidence in the criminal matter has been collected.13 Estonia was previously a clear-cut legality principle jurisdiction. Today there are several provisions in the CCP that have introduced some features of the opportunity principle. Criminal proceedings shall not be commenced if a person has committed a criminal offence in the second degree for which a pecuniary punishment may be imposed and the person does not have a permanent or temporary place of residence in Estonia, and the investigative body, with the consent of the person, substitutes the detention of the person as a suspect by a payment into the public revenues, covering the procedural expenses, the potential pecuniary punishment and the damage caused by the criminal offence.14 If a Prosecutor’s Office finds that a minor aged 14 to 18 who has committed a criminal offence can be favourably influenced without the imposition of a punishment or a sanction prescribed under Penal Code § 87, the Prosecutor’s Office shall terminate the criminal proceeding by a ruling and refer the criminal file to the juvenile committee of the place of residence of the minor.15 If the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has commenced to remedy the damage caused by the criminal offence or has paid the expenses

12 13 14 15

CCP, § 6. CCP, § 226. CCP, §§ 199 s 2 and 219. CCP, § 201 s 2.

184 Estonia relating to the criminal proceedings, or assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, with the consent of the suspect or accused, the Prosecutor’s Office may request termination of the criminal proceedings by a court.16 If the object of criminal proceedings is a criminal offence in the second degree, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim if: (1) the punishment to be imposed for the criminal offence would be negligible compared to the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence; (2) imposition of a punishment for the criminal offence cannot be expected during a reasonable period of time and the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence is sufficient to achieve the objectives of the punishment and satisfy the public interest in the proceeding.17 If facts relating to a criminal offence in the second degree which is the object of criminal proceedings are obvious and there is no public interest in the continuation of the criminal proceedings and the suspect or the accused has reconciled with the victim pursuant to the procedure provided for in CCP, § 203, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim. Termination of criminal proceedings on the basis of conciliation is not permitted: (1) in criminal offences specified in Penal Code, §§ 122, 133, 134, 136, 138, 139, 141–43, 214 and 263; (2) in criminal offences committed by an adult person against a victim who is a minor; (3) if the criminal offence resulted in the death of a person; (4) in crimes against humanity and international security, against the state, criminal official misconduct, crimes dangerous to the public and criminal offences directed against the administration of justice.18 A Prosecutor’s Office may terminate criminal proceedings by an order if: (1) the criminal offence was committed outside the territorial applicability of the CCP; (2) the criminal offence was committed by a foreign citizen on board a foreign ship or aircraft located within the territory of the Republic of Estonia; (3) an accomplice committed the criminal offence within the territory of the Republic of Estonia but the consequences of the criminal offence occurred outside the territorial applicability of the CCP; (4) a decision concerning extradition of the alleged criminal offender to a foreign state has been made;

16 17 18

CCP, § 202. CCP, § 203. CCP, § 2031.

General Aspects of the Procedure 185 (5) the person has been convicted and has served the sentence in a foreign state and the punishment applicable in Estonia is not significantly more severe than the punishment served, or if the person has been acquitted of the crime in a foreign state.19 A Prosecutor’s Office may, by an order, terminate criminal proceedings concerning a criminal offence which was committed in a foreign state but the consequences of which occurred in the territory of the Republic of Estonia if the proceedings may result in serious consequences for the Republic of Estonia or are in conflict with other public interests.20 Termination of criminal proceedings on the basis of economic interests, interests in the field of foreign policy or other considerations is not permitted if this is contrary to an international agreement binding on Estonia.21 The Public Prosecutor’s Office22 may, by its order, terminate criminal proceedings with regard to a person suspected or accused with his or her consent if the suspect or the accused has significantly facilitated the ascertaining of facts relating to a subject of proof of a criminal offence which is important from the point of view of public interest in the proceedings and if, without the assistance, detection of the criminal offence and collection of evidence would have been precluded or especially complicated. Criminal proceedings shall not be terminated in respect of a suspect or an accused who has committed a criminal offence for which the lightest punishment is prescribed as at least six years’ imprisonment, or the most severe punishment is prescribed as life imprisonment under the Penal Code.23 The Public Prosecutor’s Office shall, by its order, terminate criminal proceedings with regard to a leniency applicant who complies with the conditions for application of leniency provided for in the Competition Act24 who is the first to submit a leniency application and the information contained therein referring to a criminal offence provided for in Penal Code, § 400 enables the commencement of criminal proceedings. The criminal proceedings are not terminated, however, if criminal proceedings concerning the offence referred by the leniency applicant have been commenced prior to submission of the leniency application.25 The Public Prosecutor’s Office may, taking into account the gravity of a criminal offence, and the complexity and volume of the criminal proceedings, the progression of the criminal proceedings and other circumstances, by its order, terminate criminal proceedings with regard to the criminal offence with the suspect’s consent if it becomes evident that it is impossible to complete the proceedings within a reasonable period of time.26

19

CCP, § 204 s 1. CCP, § 204 s 2. 21 CCP, § 204 s 3. 22 In the translation of the CCP the term ‘Public Prosecutor’s Office’ is employed to refer to the central office of the Chief Public Prosecutor; the territorial offices subordinated to the Chief Public Prosecutor are referred to as ‘district prosecutor’s offices’ and the term ‘Prosecutor’s Office’ is employed to refer to the whole system of prosecution composed of the Public Prosecutor’s Office and district prosecutor’s offices 23 CCP, § 205. 24 CCP, § 31 Estonian Competition Act, Official Gazette RT I 2001, 56, 332, as amended by RT I, 23.02.2011, 3. Available: www.riigiteataja.ee/ert/act.jsp?id=13334947. Translation into English available: www. legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X50066K7&pg=1&tyyp=X&query=konkurent&ptyyp= RT&keel=en. 25 CCP, § 2051. 26 CCP, § 2052. 20

186 Estonia 5. The Status of the Accused/Defendant According to the CCP a suspect is a person who has been detained on suspicion of a criminal offence, or a person of whom there is sufficient ground to suspect the commission of a criminal offence and who is subject to a procedural act. The rights and obligations of a suspect shall be immediately explained to him or her and he or she shall be interrogated with regard to the content of the suspicion. Interrogation may be postponed if immediate interrogation is not possible due to the state of health of the suspect, or if postponing is necessary in order to ensure the participation of a counsel, translator or interpreter.27 A suspect has the right to: (1) know the content of the suspicion and give or refuse to give testimony with regard to the content of the suspicion; (2) know that his or her testimony may be used in order to bring charges against him or her; (3) the assistance of a counsel; (4) confer with the counsel without the presence of other persons; the conference may be interrupted for the performance of a procedural act if the conference has lasted for more than one hour; (5) be interrogated and participate in confrontation, comparison of testimony to circumstances and presentation for identification in the presence of a counsel; (6) participate in the hearing of an application for an arrest warrant in court; (7) submit evidence; (8) submit requests and complaints; (9) examine the report of procedural acts and give statements on the conditions, course, results and report of the procedural acts, whereas record shall be made of such statements; (10) give consent to the application of settlement proceedings, participate in the negotiations for settlement proceedings, make proposals concerning the type and term of punishment and enter or decline to enter into an agreement concerning settlement proceedings. A suspect is required to: (1) appear when summoned by an investigative body, Prosecutor’s Office or court; (2) participate in procedural acts and obey the orders of investigative bodies, Prosecutors’ Offices and courts. The accused is a person with regard to whom a Prosecutor’s Office has prepared a statement of charges pursuant to CCP, § 226 or a person against whom a statement of charges has been brought pursuant to expedited procedure or a person with whom an agreement has been entered into in settlement proceedings. The accused has the rights and obligations of a suspect. These include the right to examine the criminal file through his or her counsel and participate in the court hearing.28

27 28

CCP, § 33. CCP, § 35.

Investigation Measures 187 6. Specialised Procedure for Financial Criminal Investigations All crimes (including cases of tax fraud and criminal offences involving violation of customs rules investigated by the Tax and Customs Board) are prosecuted by a Prosecutor’s Office.

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect A suspect is a person who has been detained on suspicion of a criminal offence, or a person of whom there is sufficient ground to suspect the commission of a criminal offence and who is subject to a procedural act.29 The grounds for designating a person a suspect are constituted by ascertainment of criminal elements in a report of a criminal offence or other information indicating that a criminal offence has taken place. Any investigative body or a prosecutor can designate a person a suspect. Designation of a person as a suspect is documented by the report of the procedural act. What constitutes ‘sufficient ground’ is not very clear because there have been no court cases in which treating a person as suspect would have been declared unwarranted. A suspect is required to: (1) appear when summoned by an investigative body, Prosecutor’s Office or court; (2) participate in procedural acts and obey the orders of investigative bodies, Prosecutors’ Offices and courts.30

2. Questioning the Suspect Pre-Trial If a suspect is deprived of liberty for up to 48 hours (the translation of the CCP employs the term ‘detention’ to refer to this procedural act), an official of the investigative body who has detained the suspect shall interrogate the suspect immediately.31 If a suspect is not deprived of liberty, questioning of the suspect is applied when the investigative body or Prosecutors Office considers it suitable, but before the charges are prepared.32 A suspect may refuse to give testimony with regard to the content of the suspicion.33 Upon application of interrogation of a suspect, his or her name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution shall be ascertained. At the beginning of interrogation, it shall be explained to the suspect that he or she has the right to refuse to give statements and that the statements given may be used against him or her. The suspect is asked whether he or she committed the criminal offence of which he or she is suspected and a proposal shall be made to the suspect to give statements in his or 29 30 31 32 33

CCP, § 33. Ibid. CCP, § 217 s 7. CCP, § 34 s 1(5). CCP, § 34 s 1(1).

188 Estonia her own words concerning the facts relating to the criminal offence on which the suspicion is based. When giving testimony, a suspect may use notes and other documents concerning numerical data, names and other information which is difficult to memorise. A suspect may be heard only as regards the facts relating to a subject of proof. It is prohibited to pose leading questions. The testimony of a suspect concerning such facts relating to a subject of proof of which the suspect has become aware through another person are evidence only if the direct source of the evidence cannot be heard. Questions concerning the moral character and habits of a suspect, accused or victim may be posed to a suspect only if the act which is the object of the criminal proceeding must be assessed in inseparable connection with his or her previous conduct.34 The record of interrogation of a suspect is prepared pursuant to CCP § 74 subsections (2) and (4). If the defendant requires, the defence lawyer has to be informed about the place and time of the questioning, and if the defendant additionally requires, the defence lawyer has to be present at the questioning.35 An interpreter is to be provided, if needed.36

3. Interrogation of Witnesses at the Investigation Stage (Including Complainants/Injured Party) The rights and obligations of witnesses and the right to offer the testimony in handwriting shall be explained to a witness. A witness of at least 14 years of age shall be warned against refusal to give testimony without a legal basis, and giving knowingly false testimony, and the witness shall sign the record of the hearing to that effect. If necessary, it is explained to the witness that intentional silence on the facts known to him or her shall be considered refusal to give testimony. While giving testimony, a witness may use notes and other documents concerning numerical data, names and other information which is difficult to memorise. A witness may be heard only as regards the facts relating to a subject of proof. It is prohibited to pose leading questions. The testimony of a witness concerning such facts relating to a subject of proof of which the witness has become aware through another person are evidence only if the direct source of the evidence cannot be heard. Questions concerning the moral character and habits of a suspect, accused or victim may be posed to a witness only if the act which is the object of the criminal proceeding must be assessed in inseparable connection with his or her previous conduct.37 A suspect or accused or the official of the investigative body, the prosecutor or the judge conducting the proceedings in the criminal matter shall not participate in the same criminal matter as witnesses.38 The following persons have the right to refuse to give testimony as witnesses: (1) the descendants and ascendants of the suspect or accused; (2) a sister, stepsister, brother or stepbrother of the suspect or accused, or a person who is or has been married to a sister, stepsister, brother or stepbrother of the suspect or accused; 34 35 36 37 38

CCP, § 75. CCP, § 34 s 1(5) and CCP, § 47 s 1(6). CCP, § 161 s 1. CCP, § 68. CCP, § 66.

Investigation Measures 189 (3) a step or foster parent or a step or foster child of the suspect or accused; (4) an adoptive parent or an adopted child of the suspect or accused; (5) the spouse of or a person permanently living together with the suspect or accused, and the parents of the spouse or person, even if the marriage or permanent cohabitation has ended. A witness may refuse to give testimony also if the testimony may lay blame on him or her or a person listed above for the commission of a criminal offence or a misdemeanour.39 The following persons have the right to refuse to give testimony as witnesses concerning the circumstances which have become known to them in their professional activities: (1) the ministers of religion of the religious organisations registered in Estonia; (2) counsels and notaries, unless otherwise provided by law; (3) health care professionals and pharmacists regarding circumstances concerning the descent, artificial insemination, family or health of a person; (4) persons on whom the obligation to maintain a professional secret has been imposed by law; (5) the professional support staff of the persons specified in clauses (1)–(3) also have the right to refuse to give testimony. The persons specified in clauses (1)–(3) and their professional support staff do not have the right to refuse to give testimony if their testimony is requested by the suspect or accused. If on the basis of a procedural act the court is convinced that the refusal of a person specified in clauses (1)–(5) to give testimony is not related to his or her professional activities, the court may require the person to give testimony.40 A witness has the right to refuse to give testimony concerning circumstances to which the State Secrets and Classified Information of Foreign States Act41 applies. If a witness refuses to give testimony in order to protect a state secret or classified information of a foreign state, the investigative body, Prosecutor’s Office or court shall request the agency in possession of the state secret or classified information of a foreign state to confirm classification of the facts as state secret or classified information of a foreign state. If an agency in possession of a state secret or classified information of a foreign state does not confirm classification of facts as state secret or classified information of a foreign state or does not respond within 20 days, the witness is required to give testimony.42 Taking into account the gravity of a criminal offence or the exceptional circumstances relating thereto, a preliminary investigation judge may, at the request of the Prosecutor’s Office, declare a witness anonymous by a ruling in order to ensure the safety of the witness. In order to make a ruling on anonymity, the preliminary investigation judge shall question the witness in order to ascertain his or her reliability and the need to ensure his

39

CCP, § 71. CCP, § 72. 41 Official Gazette RT I 2010, 16, 18 as amended by RT I, 08 July 2011, 8 (in Estonian). Available: www.riigiteataja.ee/akt/108072011049. Translation into English available: www.legaltext.ee/et/andmebaas/tekst.asp?loc=text& dok=XXX0007K2&keel=en&pg=1&ptyyp=RT&tyyp=X&query=riigisaladuse. 42 CCP, § 73. 40

190 Estonia or her safety, and shall hear the opinion of the prosecutor. If necessary, the preliminary investigation judge shall examine the criminal file. A fictitious name shall be assigned to an anonymous witness on the basis of the ruling on anonymity and the name shall be used in procedural acts. Information concerning the name, personal identification code or, in the absence thereof, date of birth, citizenship, education, residence and place of employment or the educational institution of a witness declared anonymous shall be enclosed in an envelope bearing the number of the criminal matter and the signature of the person conducting the proceedings. The envelope shall be sealed and kept separately from the criminal file. The information contained in the envelope shall be examined only by the person conducting the proceedings, who shall seal and sign the envelope again after examining the information. In a court proceeding, a witness bearing a fictitious name shall be heard by telephone using voice distortion equipment, if necessary. Questions may be submitted to the witness also in writing. Regardless of whether or not a witness has been declared anonymous, the provisions of the Witness Protection Act may be applied to the witness in order to ensure his or her safety.43 A body conducting the proceedings may organise long-distance hearing of a witness if the direct hearing of the witness is complicated or involves excessive costs or if it is necessary to protect the witness or the victim. Long-distance hearing means hearing: (1) by means of a technical solution as a result of which the participants in the proceeding, see and hear the witness giving testimony outside the investigative body, Prosecutor’s Office or court directly via live coverage and may question the witness through the person conducting the proceedings; (2) by telephone, as a result of which the participants in the proceeding directly hear the witness giving testimony outside the investigative body or court and may question the witness through the person conducting the proceedings. Long-distance hearing by telephone is permitted only with the consent of the person to be heard and the suspect or accused. The consent of the suspect or accused is unnecessary for the long-distance hearing of anonymous witnesses by telephone. The minutes of a long-distance hearing shall contain a notation that the witness has been warned against refusal to give testimony without a legal basis, and giving knowingly false testimony. The Minister of Justice may establish more specific requirements for organising longdistance hearing.44 A witness under 14 years of age shall be heard in the presence of a child protection official, social worker or psychologist. The body conducting the proceedings may involve a child protection official, social worker or psychologist in the hearing of a minor over 14 years of age.45

43 44 45

CCP, § 67. CCP, § 69. CCP, § 70.

Investigation Measures 191 4. Arresting the Suspect, and Detention for Questioning The term ‘detention of a suspect’ is employed in the CCP to refer to a procedural act whereby a person is deprived of liberty for up to 48 hours. A report shall be prepared on a detention. A person shall be detained as a suspect if: (1) he or she is apprehended in the act of committing a criminal offence or immediately thereafter; (2) an eyewitness to a criminal offence or a victim indicates such person as the person who committed the criminal offence; (3) the evidentiary traces of a criminal offence indicate that he or she is the person who committed the criminal offence. A suspect may be detained on the basis of other information referring to a criminal offence if: (1) (2) (3) (4)

he or she attempts to escape; he or she has not been identified; he or she may continue to commit criminal offences; he or she may abscond criminal proceedings or impede the criminal proceedings in any other manner.

An official of an investigative body shall explain the rights and obligations of a person detained as a suspect to the person and shall interrogate the suspect immediately.46 A person who is apprehended in the act of committing a criminal offence or immediately thereafter in an attempt to escape may be taken to the police by anyone for detention as a suspect. An advocate may be detained as a suspect under the circumstances relating to his or her professional activities only at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling.47 The President of the Republic, a member of the Government of the Republic or the Riigikogu, the Auditor General, the Chancellor of Justice, and the Chief Justice or a justice of the Supreme Court may be detained as a suspect, preventive measures may be applied with regard to him or her and searches, seizure of property, inspections and physical examinations may be conducted with regard to him or her, only if the Riigikogu has granted consent to the preparation of a statement of charges with regard to such person. A judge may be detained as a suspect, preventive measures may be applied with regard to him or her and searches, seizure of property, inspections and physical examinations may be conducted with regard to him or her, if the President of the Republic has granted consent to the preparation of a statement of charges with regard to the judge. Aforementioned persons may be detained as a suspect without the consent of the Riigikogu or the President of the Republic if the person was apprehended in the act of commission of a criminal offence in the first degree. In such case, the person and any premises associated with him or her may be searched and the person subjected to inspections and physical examinations without the consent of the Riigikogu or the President of the Republic as appropriate. The

46 47

CCP, § 217 ss 1 and 3. CCP, § 217 ss 4 and 5.

192 Estonia Public Prosecutor’s Office and also the President of the Riigikogu, if procedural acts are performed with regard to a member of the Riigikogu without the consent of the Riigikogu, shall be notified of the performance of aforementioned procedural acts.48 A person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. If the notification prejudices a criminal proceeding, the opportunity to notify may be refused with the permission of the Prosecutor’s Office.49 If the defendant requires, the defence lawyer must be informed of the place and time of the procedural act, and if the defendant further requires, the defence lawyer has to be present at the procedural act.50 An interpreter is provided, if needed.51

5. Pre-Trial Custodial Detention Pre-trial custodial detention is applied if the suspect is likely to abscond from the criminal proceeding or continue to commit criminal offences.52 The grounds for the measure are constituted by ascertainment of criminal elements in a report of a criminal offence or other information indicating that a criminal offence has taken place53 and there must be sufficient ground to suspect the person of the commission of the criminal offence. The Supreme Court has interpreted the ‘sufficient grounds’ in cases of pre-trial detention to require that a court is convinced that there is serious likelihood that the suspect has committed the crime. The conviction must rely on concrete information from the criminal file and the reasoning cannot be confined to a single-sentence finding that on the basis of the criminal file there exist sufficient grounds to believe that the person has committed the crime.54 In pre-trial procedure, a suspect or accused shall not be kept under arrest for more than six months. The term shall not include time spent under provisional arrest and arrest for surrender in a foreign country by a person whose extradition has been applied for by the Republic of Estonia.55 The President of the Republic, a member of the Government of the Republic or the Riigikogu, the Auditor General, the Chancellor of Justice, and the Chief Justice or a justice of the Supreme Court may be subject to pre-trial detention only if the Riigikogu has granted consent to the preparation of a statement of charges with regard to such person.56 A suspect or accused may be subject to pre-trial detention on the basis of an order of a preliminary investigation judge or on the basis of a court ruling at the request of a Prosecutor’s Office.57 48

CCP, § 377. CCP, § 217 s 10. CCP, § 34 s 1(5) and CCP, § 47 s 1(6). 51 CCP, § 161 s 1. 52 CCP, § 130. 53 CCP, § 194. 54 The Estonian Supreme Court, case no 3-1-1-103-06 (in Estonian) Available: www.riigikohus.ee/?id=11&ind eks=0%2C1%2C105%2C921%2C3254&tekst=RK%2F3-1-1-103-06&print=1. 55 CCP, § 130. 56 CCP, § 377. 57 CCP, § 130. 49 50

Investigation Measures 193 A preliminary investigation judge or court shall immediately give notification of the arrest of a person to a person close to the arrested person and his or her place of employment or study. Notification of an arrest may be delayed in order to prevent a criminal offence or ascertain the truth in a criminal proceeding. At the request of a suspect or accused, the Prosecutor’s Office shall immediately notify his or her counsel of preparation of an application for an arrest warrant. At the request of the person to be arrested, his or her counsel shall be summoned before the preliminary investigation judge and their opinions shall be heard.58 An interpreter is provided, if needed.59 If a foreign citizen is arrested, a copy of the arrest warrant or court judgment shall be sent to the Ministry of Foreign Affairs.60 A Prosecutor’s Office, a person under arrest or his or her counsel may file an appeal against a court ruling by which the arrest was imposed or refused, or against an extension of the term for keeping under arrest or refusal to extend the term for keeping under arrest.61

6. Interception of Postal Communications (Letters) Evidence may be collected by covert examination of postal or telegraphic items in a criminal proceeding, if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree, for which at least three years’ imprisonment is prescribed as punishment.62 The grounds for the measure are constituted by ascertainment of criminal elements in a report of a criminal offence or other information indicating that a criminal offence has taken place. Permission for surveillance activities is granted for up to two months and the permission may be extended by up to two months at a time at the request of a prosecutor who directs the proceedings. A postal or telegraphic item is seized for the purposes of examination on the basis of an order of a preliminary investigation judge or on the basis of a court ruling. In cases of urgency, covert examination of postal or telegraphic items may be conducted without an order of a preliminary investigation judge or on the basis of a court ruling on the basis of an order of the head of a police authority or the Security Police Board or an official appointed by him or her. The Prosecutor’s Office shall immediately notify a preliminary investigation judge of the surveillance activities conducted and the judge shall decide on the admissibility of the activities and the grant of permission for continuation of the surveillance activities by a ruling.63 A member of the Riigikogu or a rural municipality or city council, a judge, prosecutor, advocate, minister of religion or an official elected or appointed by the Riigikogu may be involved in surveillance activities with his or her consent and with the permission of a

58 59 60 61 62 63

CCP, § 131. CCP, § 161. CCP, § 133. CCP, § 136. CCP, § 110. CCP, § 114.

194 Estonia preliminary investigation judge only if a criminal offence is directed against him or her or a person close to him or her.64 Seizure and examination of postal or telegraphic items is executed by an investigative authority or prosecutor. Covert examination of postal or telegraphic items is conducted by a police authority and the Security Police Board on their own initiative or at the request of an investigative body.65 A body which has conducted covert examination of postal or telegraphic items or the investigative body which requested the covert examination of postal or telegraphic items shall immediately give notification of such activities to the person against whom the activities were conducted and the persons whose private or family life was violated by the activities. With the permission of the prosecutor, conduct of the surveillance activities need not be given notification of until the corresponding bases cease to exist if this may: (1) damage the rights and freedoms of another person which are guaranteed by law; (2) endanger the right of a person who has been recruited for surveillance activities to maintain the confidentiality of cooperation; (3) endanger the life, health, honour, dignity and property of an employee of a surveillance agency, a person who has been recruited for surveillance activities, or another person who has been engaged in surveillance activities and of persons connected with them; (4) prejudice a criminal proceeding or induce crime. At the request of a person with regard to whom the activities were conducted and the persons whose private or family life was violated by the activities, he or she is permitted to examine the materials of the surveillance activities conducted with regard to him or her, and the photographs, films, audio and video recordings and other data recordings obtained as a result of the surveillance. With the permission of the prosecutor, the following information need not be submitted until the corresponding bases cease to exist: (1) information concerning the private life of other persons; (2) information the submission of which may damages the rights and freedoms of another person which are guaranteed by law; (3) information which contains state secrets, classified information of foreign states or secrets of another person that are protected by law; (4) information the submission of which may endanger the right of a person who has been recruited for surveillance activities to maintain the confidentiality of cooperation; (5) information the submission of which may endanger the life, health, honour, dignity and property of an employee of a surveillance agency, a person who been recruited for surveillance activities or another person who has been engaged in surveillance activities and of persons connected with them; (6) information the submission of which may prejudice a criminal proceeding or induce crime;

64 65

CCP, § 112 s 5. CCP, § 112 s 2.

Investigation Measures 195 (7) information which cannot be separated or disclosed without information specified in clauses (1)–(6) becoming evident.66 The security authorities surveillance committee of the Riigikogu is a select committee of the Riigikogu which exercises supervision over agencies of executive power in questions relating to the activities of security authorities and surveillance agencies, including insurance of fundamental rights and efficiency of the work of security authorities and surveillance agencies, and in questions relating to supervision exercised there over.67

7. Interception of the Contents of Telecommunications (Content Data) Evidence may be collected by interception of the contents of telecommunications in a criminal proceeding if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree for which at least three years’ imprisonment is prescribed as punishment.68 Permission for surveillance activities is granted for up to two months and the permission may be extended by up to two months at a time at the request of a prosecutor who directs the proceedings.69 A member of the Riigikogu or a rural municipality or city council, a judge, prosecutor, advocate, minister of religion or an official elected or appointed by the Riigikogu may be involved in surveillance activities with his or her consent and with the permission of a preliminary investigation judge only if a criminal offence is directed against him or her or a person close to him or her.70 Interception of the contents of telecommunications is conducted by a police authority and the Security Police Board on their own initiative or at the request of an investigative body.71 Interception of the contents of telecommunications executed at the request of a Prosecutor’s Office. The permission of a preliminary investigation judge is necessary for the interception of the contents of telecommunications. In cases of urgency, interception of the contents of telecommunications may be conducted without an order of a preliminary investigation judge or on the basis of a court ruling on the basis of an order of the head of a police authority or the Security Police Board or an official appointed by him or her. The Prosecutor’s Office shall immediately notify a preliminary investigation judge of the surveillance activities conducted and the judge shall decide on the admissibility of the activities and the grant of permission for continuation of the surveillance activities by a ruling.72 For notification requirements and special supervision, see section B6.

66

CCP, § 121. Security Authorities Act, § 36, Official Gazette RT I 2001, 7, 17 as amended by RT I 2009, 62, 405, Available: www.riigiteataja.ee/ert/act.jsp?id=13247579. Translation into English available: www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X50038K4&keel=en&pg=1&ptyyp=RT&tyyp=X&query= julgeoleku. 68 CCP, § 110. 69 CCP, § 114. 70 CCP, § 112. 71 CCP, § 112. 72 CCP, § 114. 67

196 Estonia 8. Monitoring of Telecommunication Traffic Data Evidence may be collected by surveillance activities in a criminal proceeding if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree, for which at least three years’ imprisonment is prescribed as punishment. Evidence may be collected by monitoring of telecommunication traffic data as a single inquiry in criminal proceedings commenced pursuant to Penal Code, §§ 120, 156, 157, 179, 180 subsection 206(1), 207 subsection 208(1) and subsection 217(1), 245, 247, 249, 275, 305, 3231 subsection 377(1) and 398. For the purposes of this clause, single inquiry is an inquiry for obtaining the information to ascertain the fact that a message has been transmitted, the duration and manner of transmission of the message, and the personal data and location of the sender or receiver concerning a particular telephone call, a particular electronic mail, a particular electronic commentary or another communication session related to the forwarding of a single message.73 Permission for surveillance activities is granted for up to two months and the permission may be extended by up to two months at a time at the request of a prosecutor who directs the proceedings.74 The telecommunication operators are under a duty to cooperate with the investigative authorities. Telecommunication traffic data is collected by a police authority and the Security Police Board on their own initiative or at the request of an investigative body.75 The permission of a prosecutor who directs the proceedings is necessary for collection of telecommunication traffic data.76 For notification requirements and special supervision, see section B6.

9. Surveillance in Public and Private Spheres (Acoustic and Visual) Evidence may be collected by covert surveillance and covert examination and replacement of objects in a criminal proceeding, if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree for which at least three years’ imprisonment is prescribed as punishment.77 Permission for surveillance activities is granted for up to two months and the permission may be extended by up to two months at a time at the request of a prosecutor who directs the proceedings.78 A member of the Riigikogu or a rural municipality or city council, a judge, prosecutor, advocate, minister of religion or an official elected or appointed by the Riigikogu may be

73 74 75 76 77 78

CCP, § 110. CCP, § 114. CCP, § 112. CCP, § 112. CCP, § 110. CCP, § 114.

Investigation Measures 197 involved in surveillance activities with his or her consent and with the permission of a preliminary investigation judge only if a criminal offence is directed against him or her or a person close to him or her.79 This measure is applied by a police authority and the Security Police Board on their own initiative or at the request of an investigative body.80 Covert surveillance and covert examination and replacement of object is conducted by a police authority and the Security Police Board on their own initiative or at the request of an investigative body.81 Covert surveillance and covert examination and replacement of object are executed at the request of a Prosecutor’s Office. The permission of a preliminary investigation judge is necessary for covert surveillance and covert examination and replacement of object. For notification requirements and special supervision, see section B6. 10. Monitoring of Bank Transactions A credit institution is required to disclose information subject to banking secrecy to the Bank of Estonia and the Financial Supervision Authority for the performance of duties assigned thereto by law. In response to a written inquiry or an inquiry in a format which can be reproduced in writing, a credit institution shall disclose information subject to banking secrecy to: (1) a court or, in the cases prescribed by law, a person specified in a court ruling; (2) a pre-trial investigation authority and the Prosecutor’s Office if a criminal proceeding is commenced, and on the basis of a request for legal assistance received from a foreign state pursuant to the procedure provided for in an international agreement.82 Persons to whom information subject to banking secrecy is disclosed may use such information only for the purpose specified in the inquiry, and the obligation to maintain the confidentiality of such information indefinitely and the liability therefore extend to such persons, unless otherwise provided by law.83 Credit institutions are under a duty to cooperate with the investigative authorities. Investigative authorities or a prosecutor executes this measure. No higher authorisation is required. 11. Tracking and Tracing of Objects and Persons The rules of covert surveillance and covert examination and replacement of object as described in section B9 apply. For notification requirements and special supervision, see section B6. 79

CCP, § 112. CCP, § 112. 81 CCP, § 112. 82 CCP, § 88 Credit Institutions Act, Official Gazette RT I 1999, 23, 349, as amended by RT I 2010, 34, 182 (in Estonian). Available: www.riigiteataja.ee/ert/act.jsp?id=13330780. Translation into English available: www. legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X30042K10&keel=en&pg=1&ptyyp=RT&tyyp=X&query=kr ediidiasutuste+seadus. 83 Credit Institutions Act, § 88. 80

198 Estonia 12. Data Mining and Profiling There is no special regulation for data mining and profiling in criminal procedure. The Personal Data Protection Act applies to criminal proceedings and court procedure with the specifications provided by procedural law.84 And the CCP provides no restrictions for data mining and profiling. The rights of a data subject to receive information and personal data concerning him or her upon the processing of the personal data shall be restricted if this may: (1) hinder the prevention of a criminal offence or apprehension of a criminal offender; or (2) complicate the ascertainment of the truth in a criminal proceeding.85 A Prosecutor’s Office directs pre-trial procedure and ensures the legality and efficiency thereof (including application of this measure).

13. Access to Relevant Premises (‘Crime Scene’) There is no separate regulation on access to crime scene. If access to a crime scene is hindered search and seizure procedures are applied (as described in section B14).

14. Search and Seizure A search shall be conducted on the basis of an order of a Prosecutor’s Office or a court ruling. In cases of urgency, an investigative body may conduct a search on the basis of an order of the investigative body without the permission of a Prosecutor’s Office, but in such case the Prosecutor’s Office shall be notified of the search within 24 hours, and the Prosecutor’s Office shall decide on the admissibility of the search. A search warrant shall set out: (1) the objective of the search; (2) the reasons for the search. A person may be searched without a search warrant: (1) in the event of detention of a suspect or arrest; (2) if there is reason to believe that the object to be found is concealed by the person at the place of the search. If a search is conducted, the search warrant shall be presented for examination to the person whose premises are to be searched, or to his or her adult family member, or a representative of the legal person or the state or local government agency whose premises are to be searched, and he or she shall sign the warrant to that effect. In the absence of the 84 Personal Data Protection Act, Official Gazette, RT I 2007, 24, 127 as amended by RT I 2007, 68, 421 (in Estonian). Available: www.riigiteataja.ee/ert/act.jsp?id=12909389. Available in English: www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=XXXX041&keel=en&pg=1&ptyyp=RT&tyyp=X&query=isikuandme. 85 Personal Data Protection Act, § 20.

Investigation Measures 199 appropriate person or representative, the representative of the local government shall be involved. A search of a notary’s office or advocate’s law office shall be conducted at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling. A notary’s office or an advocate’s law office shall be searched in the presence of the notary or advocate. If the notary or advocate cannot be present at the search, the search shall be conducted in the presence of the person substituting for the notary or another advocate providing legal services through the same law office, or if this is not possible, any other notary or advocate. If a search is conducted, the person shall be asked to hand over the object specified in the search warrant or to show where the body is hidden or the fugitive is hiding. If the proposal is not complied with or if there is reason to believe that the person complied with the proposal only partly, a search shall be conducted.86 A search report shall set out: (1) a proposal to hand over the object to be found or to show where the body is hidden or the fugitive is hiding; (2) the names of the objects which were handed over voluntarily; (3) the conditions, course and results of the search; (4) the names of the objects found and the characteristics of the objects which are relevant to the adjudication of the criminal matter; (5) the personal data of the apprehended fugitive.87 If the suspect is present at the search the defence lawyer has a right to be present as well. Interpreter is provided, if needed.

15. On-line Search of Computers There is no separate regulation on on-line search. If an on-line search is conducted openly, the search and seizure regulation applies. It is not very likely, however, that an on-line search will be conducted openly. If an on-line search is conducted covertly, the rules of covert surveillance and covert examination and replacement of object as described in section B9 apply. For notification requirements and special supervision, see section B6.

16. Freezing In the CCP, ‘seizure of property’ means recording the property of a suspect, accused, convicted offender, civil defendant or third party, or property which is the object of money laundering or terrorist financing, and preventing the transfer of the property. Seized property is confiscated or deposited in storage with liability. An immovable may be seized at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigation

86 87

CCP, § 91. CCP, § 92.

200 Estonia judge or on the basis of a court ruling. For the seizure of an immovable, a Prosecutor’s Office shall submit an order on seizure to the land registry department of the location of such immovable in order for a prohibition on the disposal of the immovable to be made in the land register. A construction work which is a movable, or a vehicle, may be seized at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling. For the seizure of a building which is a movable, a Prosecutor’s Office shall submit an order on seizure to the register of construction works of the location of the building; for the seizure of a vehicle, the order shall be submitted to the motor vehicle register. Seizure of property with the objective of securing a civil action is employed on the basis of an order of a preliminary investigation judge or on the basis of a court ruling at the request of a Prosecutor’s Office. In cases of urgency, property, unless it is the object of money laundering, may be seized without the permission of a preliminary investigation judge. The preliminary investigation judge shall be notified of the seizure of the property within 24 hours after the seizure and the judge shall immediately decide whether to grant or refuse permission. If the preliminary investigation judge refuses to grant permission, the property shall be released from seizure immediately. Property which pursuant to law must not be subject to a claim for payment shall not be seized.88 Third parties in possession of the assets of the suspect are under a duty to cooperate with the investigative authorities.

17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) Banks, internet service providers, public authorities and administrators of other data collections are obliged to cooperate with investigative authorities, Prosecutors’ Offices and the courts.89

18. Invoking the Assistance of Experts to Examine Clues etc. In the CCP the term ‘expert’ means a person who uses his or her specific non-legal expertise in the conduct of an expert assessment in the cases and pursuant to the procedure provided for in the CCP. Upon the appointment of an expert, the body conducting the proceedings shall give preference to a forensic expert or an officially certified expert but any other person with the relevant knowledge may also be appointed as an expert. If an expert assessment is arranged outside a forensic institution, the body conducting the proceedings shall ascertain whether the person to be appointed as expert is impartial with regard to the criminal matter and consents to conduct the expert assessment. The rights and obligations of experts provided for in CCP, § 98 shall be explained to him or her. If a person who has not been sworn in is appointed as an expert, he or she shall be warned about criminal punishment for rendering a knowingly false expert opinion. The

88 89

CCP, § 142. CCP, § 145 s 7.

Investigation Measures 201 body conducting the proceeding shall determine the terms of an expert assessment by agreement with the expert. The body conducting a proceeding may request an expert assessment to be conducted in a foreign forensic institution and use an expert opinion rendered in a foreign state as evidence in the adjudication of a criminal matter. Experts of a forensic institution are under a duty to cooperate with the investigative authorities.90 If necessary, assessment material is taken for the conduct of an expert assessment, compulsory placement in a medical institution is applied with regard to the suspect or accused in order to conduct a forensic psychiatric or forensic medical examination, or a body is exhumed in order to conduct a forensic medical examination or any other expert assessment.91 Comparative material is taken in order to collect comparative trace evidence and samples necessary for an expert assessment. An order or ruling on the taking of comparative material is necessary if: (1) a suspect or accused refuses to allow comparative material to be taken but the objective of the procedural act can be achieved by force; (2) the taking of comparative material infringes the privacy of the body of the person; (3) a legal person is required to submit documents as comparative material. An order or ruling on the taking of comparative material shall set out: (1) the person from whom the comparative material is taken; (2) the type of the comparative material; (3) the reason for the performance of the procedural act. If the taking of comparative material infringes the privacy of the body of a person, a forensic pathologist, health care professional or any other specialist shall participate in the procedural act.92 If long-term expert enquiries are necessary for a forensic psychiatric or forensic medical examination, the body conducting the proceeding shall order the expert assessment from a committee of experts and impose compulsory custody in a medical institution with regard to the suspect or accused. A suspect or accused shall be placed in a medical institution at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling. A suspect or accused may be placed in a medical institution for up to one month. At the request of the Prosecutor’s Office, the preliminary investigation judge or court may extend this term by three months. The period for which a suspect or accused is placed in a medical institution shall be included in the term of his or her arrest.93 If necessary, an expert shall be heard in a pre-trial proceeding in order to specify the content of the expert’s report or the report on his or her refusal to conduct the expert assessment.94 If the suspect is present, the defence lawyer has a right to be present as well.

90 91 92 93 94

CCP, § 95. CCP, § 99. CCP, § 100. CCP, § 102. §109.

202 Estonia 19. Infiltration Evidence may be collected by police agents in a criminal proceeding if collection of the evidence by other procedural acts is precluded or especially complicated and the object of the criminal proceeding is a criminal offence in the first degree or an intentionally committed criminal offence in the second degree for which at least three years’ imprisonment is prescribed as punishment.95 ‘Police agent’ means an official who collects evidence in a criminal proceeding by using a false identity. Identity documents and other documents may be issued in order to disguise the identity of a person. A police agent may participate in legal relationships under a false identity. A police agent has all the obligations of an official of an investigative body in so far as the obligations do not require disclosure of the false identity.96 A member of the Riigikogu or a rural municipality or city council, a judge, prosecutor, advocate, minister of religion or an official elected or appointed by the Riigikogu may be involved in surveillance activities with his or her consent and with the permission of a preliminary investigation judge only if a criminal offence is directed against him or her, or a person close to him or her.97 A police authority and the Security Police Board execute this measure on their own initiative or at the request of an investigative body.98 Permission for the involvement of a police agent with regard to a specific suspect or accused may be granted by a preliminary investigation judge on the basis of an order of the Public Prosecutor’s Office.99 For notification requirements and special supervision, see section B6. 20. Controlled Deliveries There is no separate regulation for controlled deliveries. Covert surveillance and covert examination and replacement of objects100 or staging of criminal offence101 regulations are applied. See the rules of covert surveillance and covert examination and replacement of object in section B9. For notification requirements and special supervision, see section B6. C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution An investigative body or a Prosecutor’s Office commences criminal proceedings by the first investigative activity or other procedural act if there is reason and grounds therefore, and no circumstances that preclude criminal proceedings. 95 96 97 98 99 100 101

CCP, § 110. CCP, § 120. CCP, § 112. CCP, § 112. CCP, § 120. CCP, § 115. CCP, § 119.

Prosecution Measures 203 If criminal proceedings are commenced by an investigative body, the body shall immediately notify the Prosecutor’s Office of the commencement of the proceedings. If criminal proceedings are commenced by a Prosecutor’s Office, the Office shall forward the materials of the criminal matter pursuant to investigative jurisdiction.102 Prosecutor’s Office has absolute monopoly of prosecution. A victim may file an appeal against refusal to commence criminal proceedings with a Prosecutor’s Office. An appeal may be filed within 10 days from receipt of a notice on refusal to commence criminal proceedings, a copy of an order prepared by a Prosecutor’s Office on adjudication of an appeal or a copy of an order on termination of the criminal proceedings. A Prosecutor’s Office shall adjudicate an appeal against refusal to commence criminal proceedings within 15 days from receipt of the appeal.103 If the appeal is dismissed by an order of the Public Prosecutor’s Office, the appellant may contest the refusal to commence criminal proceedings in a circuit court through an advocate within one month from receipt of a copy of the order. A circuit court shall prepare the court hearing of the appeal. The appeal shall be adjudicated by a circuit court judge sitting alone within 10 days from receipt of the appeal. If a judge finds that commencement is unfounded, he or she shall make a ruling which shall set out: (1) the reasons for dismissal of the appeal; (2) an order requiring payment of the procedure expenses by the appellant. If a judge concludes that commencement of the criminal proceedings is justified, he or she shall annul the order of the Public Prosecutor’s Office and require the Public Prosecutor’s Office to commence or continue criminal proceedings.104

2. Unilateral Disposal of the Case (Including Remedy Against it) If circumstances which preclude criminal proceedings (eg, there are no grounds for criminal proceedings; the limitation period for the criminal offence has expired; an amnesty precludes imposition of a punishment; the suspect or the accused is dead or the suspect or accused who is a legal person has been dissolved; a person has committed a criminal offence in the second degree for which a pecuniary punishment may be imposed and the person does not have a permanent or temporary place of residence in Estonia, and investigative body with the consent of the person has substituted the detention of the person as a suspect by a payment covering the procedure expenses, the potential pecuniary punishment and the damage caused by the criminal offence into the public revenues) become evident in pre-trial proceedings, the proceedings shall be terminated on the basis of an order of the investigative body with the permission of a Prosecutor’s Office, or by an order of a Prosecutor’s Office.105 Another ground for termination is failure to identify person who committed the criminal offence. If, in pre-trial proceedings, a person who committed a criminal offence has 102 103 104 105

CCP, § 193. CCP, § 207. CCP, § 208. CCP, § 200.

204 Estonia not been identified and it is impossible to collect additional evidence, the proceedings shall be terminated on the basis of an order of the investigative body with the permission of a Prosecutor’s Office, or by an order of a Prosecutor’s Office. The proceedings may also be terminated partially in respect of a suspect or a criminal offence.106 Criminal proceeding may be terminated for the reason that the unlawful act was committed by a minor who was incapable of guilt on the grounds of his or her age. In these cases the investigative body or Prosecutor’s Office shall refer the materials of the criminal matter to the juvenile committee of the place of residence of the minor.107 If a Prosecutor’s Office finds that a minor who has committed a criminal offence at the age of 14 to 18 can be influenced without imposition of a punishment or a sanction prescribed in Penal Code, § 87, the Prosecutor’s Office shall terminate the criminal proceeding by a ruling and refer the criminal file to the juvenile committee of the place of residence of the minor.108 See section A4 concerning the prosecutor’s powers to terminate proceedings relying on opportunity principle: (1) termination of criminal proceedings in event of lack of public interest in proceedings and in case of negligible guilt;109 (2) termination of criminal proceedings due to lack of proportionality of punishment;110 (3) termination of criminal proceedings concerning criminal offences committed by foreign citizens or in foreign states;111 (4) termination of criminal proceedings in connection with assistance received from person upon ascertaining facts relating to subject of proof;112 (5) termination of criminal proceedings concerning criminal offences related to competition;113 and (6) termination of criminal proceedings in connection with impossibility of completion of the proceedings within reasonable period of time.114 A victim may file an appeal with the Public Prosecutor’s Office against termination of criminal proceedings or dismissal of an appeal by a Prosecutor’s Office. The Public Prosecutor’s Office shall adjudicate an appeal against termination of criminal proceedings or dismissal of an appeal by a Prosecutor’s Office within one month from the receipt of the appeal.115 If the appeal is dismissed by an order of the Public Prosecutor’s Office, the appellant may contest termination of criminal proceedings in a circuit court through an advocate within one month as of the receipt of a copy of the order. A circuit court shall prepare the court hearing of the appeal.

106 107 108 109 110 111 112 113 114 115

CCP, § 2011. CCP, § 201 s 1. CCP, § 201 s 2. CCP, § 202. CCP, § 203. CCP, § 204. CCP, § 205. CCP, § 2051. CCP, § 2052. CCP, § 207.

Prosecution Measures 205 The appeal shall be adjudicated by a circuit court judge sitting alone within 10 days from the receipt of the appeal. If a judge finds that continuation of criminal proceedings is unfounded, he or she shall make a ruling which shall set out: (1) the reasons for dismissal of the appeal; (2) an order requiring payment of the procedure expenses by the appellant. If a judge concludes that continuation of the criminal proceedings is justified, he or she shall annul the order of the Public Prosecutor’s Office and require the Public Prosecutor’s Office to commence or continue criminal proceedings.116 3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against it) If commencement of criminal proceedings is refused, or a criminal proceeding is terminated for the reason that the unlawful act was committed by a minor who was incapable of guilt on the grounds of his or her age, the investigative body or Prosecutor’s Office shall refer the materials of the criminal matter to the juvenile committee of the place of residence of the minor.117 If a Prosecutor’s Office finds that a minor who has committed a criminal offence at the age of 14 to 18 can be influenced without imposition of a punishment or a sanction prescribed in CC, § 87, the Prosecutor’s Office shall terminate the criminal proceeding by a ruling and refer the criminal file to the juvenile committee of the place of residence of the minor.118 Termination of criminal proceedings is possible on the basis of conciliation. If facts relating to a criminal offence in the second degree which is the object of criminal proceedings are obvious and there is no public interest in the continuation of the criminal proceedings and the suspect or the accused has reconciled with the victim pursuant to the procedure provided for in CCP, § 2032, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim. Termination of criminal proceedings is not permitted: (1) in criminal offences specified in Penal Code, §§ 122, 133, 134, 136, 138, 139, 141–43, 214 and 263; (2) in criminal offences committed by an adult against a minor; (3) if the criminal offence resulted in the death of a person; (4) in crimes against humanity and international security, against the state, criminal official misconduct, crimes dangerous to the public and criminal offences directed against the administration of justice. A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the conciliator, the prosecutor, the victim, the suspect or accused and, at the request of the suspect or accused, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor’s Office. In the event of termination of criminal proceedings, the court shall impose, at the request of the Prosecutor’s Office and with the consent of 116 117 118

CCP, § 208. CCP, § 201 s 1. CCP, § 201 s 2.

206 Estonia the suspect or the accused, the obligation to pay the expenses relating to the criminal proceedings and to meet some or all of the conditions of the conciliation agreement provided for in CCP § 2032 section (3) on the suspect or accused. The term for the performance of the obligation shall not exceed six months. A copy of the ruling shall be sent to the conciliator. If the judge does not consent to the request submitted by the Prosecutor’s Office, he or she shall return the criminal matter on the basis of his or her ruling for the continuation of the proceedings. If a person with regard to whom criminal proceedings have been terminated pursuant conciliation fails to perform the obligations imposed on him or her, the court, at the request of the Prosecutor’s Office, shall resume the criminal proceedings by an order. If the object of criminal proceedings is a criminal offence in the second degree for which the minimum rate of imprisonment is not prescribed as punishment, or only a pecuniary punishment is prescribed as punishment by the Special Part CC, the Prosecutor’s Office may terminate the criminal proceedings and impose the obligations on the grounds specified above. A victim has the right to file an appeal against a ruling on termination of the criminal proceeding made on the basis of conciliation within 10 days as of receipt of a copy of an order on termination of the criminal proceedings.119 A court may adjudicate a criminal matter by way of settlement proceedings at the request of the accused or the Prosecutor’s Office. Settlement proceedings shall not be applied: (1) in the case of criminal offences in the first degree for which the lightest punishment is prescribed as at least four years’ imprisonment or the most severe punishment is prescribed as life imprisonment in the Penal Code; (2) the accused, his or her counsel or the Prosecutor’s Office does not consent to the application of settlement proceedings; (3) the case of a criminal matter where several persons are accused and at least one of the accused does not consent to the application of settlement proceedings; (4) the victim or the civil defendant does not consent to the application of settlement proceedings; (5) upon existence of grounds for application of detention after service of the sentence. The accused and the prosecutor may submit a request for the application of settlement proceedings to the court until the completion of examination by the court in the county court.120 After the suspect or accused and his or her counsel and victim and civil defendant have granted consent to application of settlement proceedings, the Prosecutor’s Office commences negotiations with the suspect or accused and his or her counsel in order to conclude a settlement. If a Prosecutor’s Office and the suspect or accused and his or her counsel reach a settlement concerning the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence, negotiations may be commenced concerning the type and the category or term of the punishment which the prosecutor requests in court for the commission of the criminal offence. 119 120

CCP, § 2031. CCP, § 239.

Prosecution Measures 207 If a Prosecutor’s Office and the suspect or accused and his or her counsel fail to reach a settlement concerning the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence or the type or the category or term of the punishment, the criminal proceeding shall be continued pursuant to the general procedure.121 A settlement sets out: (1) the time and place of conclusion of the settlement; (2) the official title and name of the prosecutor; (3) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the accused; (4) the name of the counsel; (5) the criminal record of the accused; (6) the preventive measures applied with regard to the accused and the duration thereof; (7) the facts relating to the criminal offence; (8) the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence; (9) the type and the category or term of the punishment; (10) property subject to confiscation. If a punishment is imposed on the accused for several criminal offences, the settlement sets out the type and the category or term of each of the punishments and the type and the category or term of the aggregate punishment. If punishments are imposed on the accused pursuant to several court judgments, the settlement sets out also the type and the category or term of the aggregate punishment. A settlement is deemed to be concluded when the prosecutor, the accused and his or her counsel have signed the settlement. A Prosecutor’s Office sends copies of a settlement to the accused and his or her counsel and the criminal file to the court.122 A judge who receives a criminal file shall verify the jurisdiction over the criminal matter pursuant to the provisions of CCP, §§ 24–27 and makes a ruling on: (1) the prosecution of the accused on court hearing in settlement proceedings; (2) the return of the criminal file to the Prosecutor’s Office if there are no grounds for application of settlement proceedings; (3) the return of the criminal file to the Prosecutor’s Office granting the possibility to conclude a new settlement if the court does not consent to the legal assessment of the criminal offence, the amount of the civil action or the type or the category or term of the punishment; (4) the return of the criminal file to the Prosecutor’s Office and continuation of the proceedings if the court does not consent to the adjudication of the criminal matter by way of settlement proceedings.

121 122

CCP, § 244. CCP, § 245.

208 Estonia If the grounds for holding a preliminary hearing become evident, the court shall organise a preliminary hearing.123 A prosecutor, the accused and his or her counsel shall be summoned to a court session in settlement proceedings, in which their participation is mandatory.124 A judge announces the commencement of the hearing of a settlement and makes a proposal to the prosecutor to present the settlement. After the presentment of a settlement, the judge asks whether the accused understands the settlement and consents thereto. The judge makes a proposal to the accused to explain the circumstances relating to the conclusion of the settlement and ascertains whether conclusion of the settlement was the actual intention of the accused. The judge asks the opinions of the counsel and the prosecutor concerning the settlement and whether they will adhere to the settlement. The judge may question the participants in the proceedings. After completion of the hearing of a settlement, the court announces the time of pronouncement of the court decision and withdraws to the chambers.125 The court makes one of the following decisions in chambers: (1) a ruling on the return of the criminal file to the Prosecutor’s Office if there are no grounds for application of settlement proceedings; (2) a ruling on the return of the criminal file to the Prosecutor’s Office granting the possibility to conclude a new settlement if the court does not consent to the legal assessment of the criminal offence, the amount of the civil action or the type or the category or term of the punishment; (3) a ruling on refusal to apply settlement proceedings and on the return of the criminal file to the Prosecutor’s Office if the court has doubts regarding the circumstances specified in CCP, § 306; (4) a ruling on termination of the criminal proceeding if the grounds for termination of the criminal proceeding become evident; (5) a court judgment on the conviction of the accused and on imposition of the punishment agreed upon in the settlement on the accused.126

4. Reopening of the Case Closed on Different Grounds If the circumstances of the case change it is possible to reopen a dropped case. A case that is dropped due to failure to identify a person who committed a criminal offence shall be reopened if the person is subsequently identified.127 A case dropped due to lack of public interest in proceedings, or negligible guilt, shall be reopened if a person with regard to whom criminal proceedings have been terminated fails to perform the obligation imposed on him or her. The case, at the request of the Prosecutor’s Office, shall be reopened by an order. In imposition of a punishment, the part of the obligations performed by the person shall be taken into consideration.128 123 124 125 126 127 128

CCP, § 2451. CCP, § 246. CCP, § 247. CCP, § 248. CCP, § 2001 s 2. CCP, § 202 s 6.

Prosecution Measures 209 If criminal proceedings were terminated taking into consideration a punishment imposed on the suspect or the accused for another criminal offence and the punishment is subsequently annulled, the court may, at the request of the Prosecutor’s Office, resume the criminal proceedings by order.129 On the same grounds the Prosecutor’s Office may resume criminal proceedings terminated by its order.130 If criminal proceedings were terminated taking into consideration a punishment which will presumably be imposed on the suspect or the accused for another criminal offence, the court may, at the request of the Prosecutor’s Office, resume the criminal proceedings if the punishment imposed does not meet the criteria specified in clauses enabling the termination (ie the criteria that 1) the punishment to be imposed for the criminal offence would be negligible compared to the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence; or 2) imposition of a punishment for the criminal offence cannot be expected during a reasonable period of time and the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence is sufficient to achieve the objectives of the punishment and satisfy the public interest in the proceeding).131 On the same grounds the Prosecutor’s Office may resume criminal proceedings terminated by its order.132 If a person with regard to whom criminal proceedings have been terminated on the basis of conciliation fails to perform the obligations imposed on him or her, the court, at the request of the Prosecutor’s Office, shall resume the criminal proceedings by an order.133 On the same grounds the Prosecutor’s Office may resume criminal proceedings terminated by its order.134 If a case has been dropped in connection with assistance received from the person upon ascertaining facts necessary for the prosecution in the case, the Public Prosecutor’s Office may, by its order, resume proceedings should the suspect or the accused cease to assist in this way, or if he or she has intentionally committed a new criminal offence within three years after termination of the proceedings.135 If after a case has been dropped concerning criminal offences related to competition with regard to a leniency applicant, circumstances become evident which prevent application of leniency, the Public Prosecutor’s Office may, by its order, resume proceedings with regard to the leniency applicant.136

5. Committing to Trial and Presenting the Case in Court In the official translation of the CCP, the term ‘prosecution’ is employed to refer to committing a case to trial. A judge who receives a statement of charges shall verify the jurisdiction over the criminal matter and shall prosecute the accused by a ruling. 129 130 131 132 133 134 135 136

CCP, § 203 s 4. CCP, § 203 s 6. CCP, § 203 s 5. CCP, § 203 s 6. CCP, § 2031 s 5. CCP, § 2031 s 6. CCP, § 205 s 2. CCP, § 2051 s 5.

210 Estonia If the grounds for holding a preliminary hearing become evident, a judge shall hold a preliminary hearing for deciding on the prosecution of the accused. In criminal matters sent to court pursuant to the general procedure where taking into custody is applied as a preventive measure, a judge shall decide prosecution not later than on the working day preceding the end of the term of arrest.137 A preliminary hearing shall be held in order to decide on: (1) application or alteration of preventive measures; (2) return of the statement of charges to the Prosecutor’s Office if the statement is not in compliance with the requirements of the CCP; (3) termination of the criminal proceedings; (4) planning of a court hearing of a criminal matter sent to court pursuant to the general procedure and adjudication of the requests of the parties to a court proceeding; (5) resolving other issues if a judge deems it necessary to hold a preliminary hearing.138 A preliminary hearing shall be held by a judge sitting alone. The participation of a prosecutor and a criminal defence counsel in a preliminary hearing is mandatory. If necessary, other participants in the proceeding may be summoned to a preliminary hearing. Minutes shall be taken of a preliminary hearing by a court session clerk.139 In a preliminary hearing, a judge may make rulings on: (1) the prosecution of the accused; (2) the return of the statement of charges to the Prosecutor’s Office if the statement of charges is not in compliance with the requirements of the CCP; (3) termination of the criminal proceeding; (4) application or alteration of preventive measures; (5) adjudication of a request of a party to a proceeding.140 A ruling on prosecution shall set out: (1) the name, residence or seat and address, personal identification code or, in the absence thereof, date of birth, citizenship, education, native language and the place of work or educational institution of the accused; (2) the number of the criminal matter; (3) the time and place of the court session. If a court session is planned to be held over several days, all the days of court hearing shall be indicated; (4) whether the criminal matter will be heard in a public court session or in camera; (5) the given names and surnames of the persons to be summoned to the court session and the time of appearance of the persons in the court hearing; (6) hearing of a witness or victim under a fictitious name; (7) application or alteration of preventive measures; (8) adjudication of requests.141

137 138 139 140 141

CCP, § 258. CCP, § 258. CCP, § 259. CCP, § 262. CCP, § 263.

Evidence 211 If necessary, a judge shall assign the head of the probation supervision department with the duty to appoint a probation officer. A judge shall verify whether a pre-trial report has been prepared in the criminal matter of the accused who is a minor. At the order of a judge, a probation officer shall amend a pre-trial report. At the order of a judge, a probation officer shall ascertain the facts relevant to the imposition of duties or community service and submit to the court a pre-trial report which shall be included in the materials of the criminal matter.142

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence According to the CCP, ‘evidence’ comprises the statements of a suspect, accused or victim, the testimony of a witness or a specialist, an expert’s report, the statements given by an expert upon provision of explanations concerning the expert’s report, physical evidence, the reports on investigative activities, minutes of court sessions and the reports on surveillance activities, and any other documents, photographs, films or other data recordings.143 It is necessary that evidence is obtained in accordance with the procedures laid down for every category of evidence in the CCP.144 And it has been interpreted that all evidence (to be acceptable in court) has to be collected according to the rules of the CCP. However, the Supreme Court has decided that not every formal breach of law, when collecting evidence, necessarily makes it inadmissible. The Court indicated that only substantial violations of prescribed procedures will make evidence inadmissible, and that the court must examine whether the breach violated the purpose of the rule that was breached, and whether, without the breach, the evidence would not have been obtained. In this case, the evidence comprised the results of an intoxication test that had been administered without informing the suspect of his rights. The Supreme Court decided that the breach was not substantial, and the evidence could have been obtained after the reading of the rights, and therefore there was no need to declare the evidence inadmissible.145 The Estonian Supreme Court has interpreted the concept of a ‘substantial breach of the rules of the CCP’ in different cases quite diversely. In one case the Supreme Court decided that in a case of presentation for identification it is a material breach if the person to whom something is presented for identification had not been interrogated before the presentation.146 CCP, § 81 rules that: [T]he person conducting a proceeding may present a person, thing or other object for identification to a suspect, accused, victim or witness who has been heard or interrogated.

142

CCP, § 264. CCP, § 63. 144 The Estonian Supreme Court, case no 3-1-1-63-08 (in Estonian). Available: www.nc.ee/?id=11&indeks=0% 2C1%2C15013%2C15356%2C15459%2C15471&tekst=RK%2F3-1-1-63-08&print=1. 145 The Estonian Supreme Court, case no 3-1-1-19-05, Official Gazette RT III 2005, 15, 148. Available: www.n c.ee/?id=11&indeks=0%2C1%2C105%2C1578%2C3184&tekst=RK%2F3-1-1-19-05&print=1. 146 The Estonian Supreme Court, case no 3-1-1-52-09 (in Estonian). Available: www.riigikohus.ee/?id=11&in deks=0%2C1%2C105%2C1577%2C12155&tekst=RK%2F3-1-1-52-09&print=1. 143

212 Estonia But in another case the Supreme Court decided that it is not a material breach of the rules of the CCP if for purposes of identification only one photograph was presented,147 notwithstanding that the CCP, § 81 requires that: A person, thing or other object shall be presented for identification with at least two other similar objects.

It is difficult to understand why the Supreme Court decided that the presentation of a single object should cause less doubt regarding the trustworthiness of the evidence, than the situation in which a witness had not been interrogated before the presentation of a person to him for identification. The concept of the fruit of the poisonous tree does not appear in the CCP, nor has it been employed by the Supreme Court. Evidence obtained by surveillance activities can be admitted, providing such information has been obtained in compliance with the requirements of laws.148 This provision has been interpreted strictly, and the Supreme Court has commented that evidence obtained by surveillance activities is admissible only if the activity has been in full concord with the legal requirements.149 As a result, unauthorised audio and video recordings are inadmissible. The Supreme Court examined the admissibility of recordings collected via surveillance activities in a case in which the surveillance activities were properly authorised, but a judge was involved in the surveillance activities, in that the surveillance cameras were set up in the judge’s office, and the law at the material time explicitly prohibited the involvement of judges in surveillance activities. The Supreme Court decided that recordings collected through tainted surveillance activities were inadmissible as evidence.150

2. Admissibility of Written Reports The CCP provides that reports on investigative activities, minutes of court sessions and reports on surveillance activities, and any other documents may be admitted as evidence.151 A document containing information concerning the facts relating to a subject of proof may be used for the purposes of proof.152 The Estonian Supreme Court has decided in several cases that procedural documents of one case including statement of charges, court judgement and minutes of a court session can be employed as evidence in another case.153

147 The Estonian Supreme Court, case no 3-1-1-33-06 (in Estonian). Available: www.riigikohus. ee/?id=11&tekst=RK%2F3-1-1-33-06&print=1. 148 CCP, §111. 149 The Estonian Supreme Court, case no 3-1-1-114-04, Official Gazette RT III 2005, 4, 35. Available: www.nc. ee/?id=11&indeks=0%2C1%2C105%2C1578%2C3187&tekst=RK%2F3-1-1-114-04&print=1. 150 The Estonian Supreme Court, case no 3-1-1-123-97, Official Gazette RT III 1998, 23, 228. Available: www. nc.ee/?id=11&tekst=222457541&print=1. 151 CCP, § 63. 152 CCP, § 123 s 1. 153 The Estonian Supreme Court, case no 3-1-1-100-07 (in Estonian). Available: www.riigikohus. ee/?id=11&indeks=0%2C1%2C105%2C1577%2C6882&tekst=RK%2F3-1-1-100-07&print=1.

Evidence 213 3. Status of Evidence Obtained in Other Member States Evidence collected in a foreign state pursuant to the legislation of that state may be used in a criminal proceeding conducted in Estonia, unless the procedural acts performed in order to obtain the evidence are in conflict with the principles of Estonian criminal procedure.154 It is not very clear how far the exclusion on the grounds of conflict with the principles of Estonian criminal procedure extends. There is no doubt that evidence obtained using torture or other cruel or inhuman treatment is not admissible.155 But as there have been no court cases declaring evidence obtained in another Member State inadmissible, the concrete limits are not unambiguous. A person staying in a foreign state may be requested to be heard by telephone or videoconference if the following conditions are met: (1) a direct hearing of the witness would be complicated or involve excessive costs, or where it is necessary to protect the witness or the victim; (2) by means of a technical solution the participants in the proceeding, see and hear the witness giving testimony outside the investigative body, Prosecutor’s Office or court directly via live coverage and may question the witness through the person conducting the proceedings or by telephone, as a result of which the participants in the proceeding directly hear the witness giving testimony outside the investigative body or court and may question the witness through the person conducting the proceedings; (3) long-distance hearing by telephone is permitted only with the consent of the person to be heard and the suspect or accused. The consent of the suspect or accused is unnecessary for the long-distance hearing of anonymous witnesses by telephone; (4) minutes of a long-distance hearing shall contain a notation that the witness has been warned against refusal to give testimony without a legal basis and knowingly giving false testimony. The request shall set out the reasons for hearing the person by telephone or videoconference, the name of the person to be heard and his or her status in the proceeding, and the official title and name of the person conducting the hearing. If hearing by video-conference is requested, the request shall contain the assurance that the suspect or accused consents to being heard by video-conference. If hearing by telephone is requested, the request shall contain an assurance that the witness or expert consents to being heard by telephone. Hearing of a suspect or accused by telephone is not permitted. Hearings by telephone or video-conference shall be conducted directly by, and under the direction of, a representative of the competent judicial authority of the requesting state pursuant to the procedural law of such state. Summonses to hearings by telephone or video-conference shall be served pursuant to the procedural law of the requested state. The person to be heard may refuse to give statements also on the basis of the procedural law of the requested state.

154 155

CCP, § 65. CCP, § 9 s 3.

214 Estonia The competent judicial authority of a requested state which holds a hearing by telephone or video-conference shall: (1) (2) (3) (4) (5)

determine and give notification of the time of the hearing; ensure that the person to be heard is summoned to and appears at the hearing; be responsible for the identification of the person to be heard; be responsible for compliance with the laws of the state of the authority; ensure participation of an interpreter if necessary.

A hearing by telephone or video-conference shall be recorded by the competent judicial authority of the requesting state, but may additionally be recorded by the competent judicial authority of the requested state. The minutes of a hearing by video-conference shall be taken by the competent judicial authority of the requested state. The minutes of a hearing by telephone shall be taken by the competent judicial authority of the requesting state. The minutes of a hearing by telephone or video-conference shall set out: (1) the time and place of the hearing; (2) the form in which the hearing was conducted and the names of the technical devices used; (3) a reference to the request for legal assistance which is the basis for the hearing; (4) the names of the representatives of the competent judicial authorities of the requesting state and requested state participating in the hearing; (5) the status in the proceedings of the person heard and his or her name, personal identification code or, in the absence thereof, date of birth, residence or seat, address and telecommunications numbers or e-mail address; (6) a notation concerning explanation of his or her rights to the person heard; (7) assurance from the person heard that he or she has been warned about the liability for refusal to give statements and for giving knowingly false statements, or that he or she has taken an oath concerning the statements if the procedural law prescribes such obligation.156

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence No one shall be presumed guilty of a criminal offence before a judgment of conviction has entered into force with regard to him or her. No one is required to prove his or her innocence in a criminal proceeding. A suspicion of guilt regarding a suspect or accused which has not been eliminated in a criminal proceeding shall be interpreted to the benefit of the suspect or accused.157

156 157

CCP, §§ 69 and 468. CCP, § 7.

The Rights of the Suspect/Defendant During Investigation and Prosecution

215

2. The Right of the Defence to Undertake Investigative Measures/Acts in their Own Right A counsel has the right to: (1) receive from natural and legal persons documents necessary for the provision of legal assistance to the person being defended; (2) submit evidence; (3) submit requests and complaints; (4) examine the report of procedural acts and to give statements on the conditions, course, results and minutes of the procedural acts, whereat record shall be made of such statements; (5) with the knowledge of the body conducting the proceedings, use technical equipment in the performance of the duties of defence if this does not obstruct the performance of procedural acts; (6) participate in the investigative activities carried out in the presence of the person being defended during the pre-trial proceeding, and pose questions through the body conducting the proceedings; (7) after he or she has been involved in a criminal proceeding, examine the record of interrogation of the person being defended and the record of detention of the suspect and, upon completion of the pre-trial investigation, all materials in the criminal file; (8) confer with the person being defended without the presence of other persons, for an unlimited number of times and with unlimited duration, unless a different duration of the conference is provided for in the CCP. A counsel is required to use all the means and methods of defence which are not prohibited by law in order to ascertain the facts which vindicate the person being defended, prove his or her innocence or mitigate his or her punishment, and to provide other legal assistance necessary in a criminal matter to the person being defended.158 A counsel cannot by himself (herself) conduct interrogation, search, and surveillance or obtain an expert assessment. A counsel can submit a request that the mentioned investigative activities would be conducted.

2. The Right to Legal Assistance A counsel may participate in a criminal proceeding as of the moment when a person acquires the status of a suspect in the proceedings. The participation of a counsel throughout a criminal proceeding is mandatory if: (1) at the time of commission of the criminal offence, the person being defended was a minor; (2) due to his or her mental or physical disability, the person is unable to defend himself or herself, or if defence is complicated due to such disability; (3) the person is suspected or accused of a criminal offence for which life imprisonment may be imposed; 158

CCP, § 47.

216 Estonia (4) the interests of the person are in conflict with the interests of another person who has a counsel; (5) the person has been under arrest for at least six months; (6) proceedings are conducted in the criminal matter pursuant to expedited procedure. The participation of a counsel in a pre-trial proceeding is mandatory as of presentation of the criminal file for examination. The participation of a counsel in a court proceeding is also mandatory, unless the defendant does not wish to have legal assistance and the court is of the opinion that the defendant is capable of representing his or her interests in: (1) court hearing in settlement proceedings of offences punishable by no more than five years’ imprisonment; (2) pronouncement of the court judgment in simplified proceedings; (3) alternative proceedings, ie, adjudication of a criminal matter on the basis of the materials of the criminal file without summoning the witnesses or experts, if the defendant has applied to the court in writing for leave to defend himself or herself, and has legal education required from contractual representatives. An appointed counsel is required to participate in a criminal proceeding until the end of the review of the criminal matter by way of cassation procedure and he or she may refuse to assume the duties of defence on own initiative or relinquish the duties of defence assumed by him or her on own initiative only on the grounds provided in CCP, § 46.159 The suspect has to be informed about this right immediately after becoming a suspect, ie the person has been detained on suspicion of a criminal offence, or there is sufficient ground to suspect him (her) of the commission of a criminal offence and he (she) is subject to a procedural act.160 A contractual counsel is paid by the suspect. An appointed counsel is paid by the Government. In criminal proceedings, a suspect or accused who is a natural person who has not chosen a criminal defence counsel by agreement and in whose criminal matter the participation of a criminal defence counsel is required by law, or who applies for the participation of a criminal defence counsel, may receive state legal aid regardless of his or her financial circumstances.161 If the suspect is convicted, eventually the suspect has to repay the state legal aid.162 In case of an appointed counsel, the suspect has to accept the lawyer chosen by the Bar Association. Only if the court recognises that the lawyer is inadequate will another lawyer be chosen by the Bar.

3. The Right to have Another Person Informed about One’s Arrest A person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. 159

CCP, §45. CCP, §§ 33 and 34. 161 State Legal Aid Act, § 6, Official Gazette RT I 2004, 56, 403, as amended by, RT I, 14.03. March 2011, 3 (in Estonian). Available: www.riigiteataja.ee/akt/114032011017. Translation into English available: www.legaltext.ee/ et/andmebaas/tekst.asp?loc=text&dok=X30066K4&keel=en&pg=1&ptyyp=RT&tyyp=X&query=%F5igusabi. 162 State Legal Aid Act, § 8. 160

The Rights of the Suspect/Defendant During Investigation and Prosecution

217

If the notification prejudices a criminal proceeding, the opportunity to notify may be refused with the permission of the Prosecutor’s Office.163 A suspect has to be informed about this right immediately upon being detained on suspicion of a criminal offence.164 Everyone who is deprived of his or her liberty shall be informed promptly, in a language and manner which he or she understands, of the reason for the deprivation of liberty and of his or her rights, and shall be given the opportunity to notify those closest to him or her.165

4. The Right to Submit Written Statements A suspect has the right to give testimony with regard to the content of the suspicion.166 The CCP is silent about the right to submit written statements, but it has been admitted that a suspect may give written testimony if he (she) prefers a written format.

5. The Right to Ask for a Special Act of Investigation A suspect has the right to submit requests and complaints.167 The suspect has to be informed of this right immediately after becoming a suspect, ie the person has been detained on suspicion of a criminal offence, or there is sufficient ground to suspect him (her) of the commission of a criminal offence and he (she) is subject to a procedural act.168

6. The Right to be Informed that his/her Statements may be Used as Evidence A suspect has the right to know that his or her testimony may be used in order to bring charges against him or her.169 The suspect has to be informed about this right immediately after becoming a suspect, ie the person has been detained on suspicion of a criminal offence, or there is sufficient ground to suspect him (her) of the commission of a criminal offence and he (she) is subject to a procedural act.170 A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded court judgment.171 To date there have been no cases in which a suspect has not been informed of the right to know that his or her testimony may be used in order to bring charges against him or her.

163

CCP, § 217. CCP, §§ 33 and 34. Estonian Constitution, § 21, Official Gazette RT 1992, 26, 349 as amended by RT I, 27 April 2011, 1. Available: www.riigiteataja.ee/akt/127042011002 (in Estonian). Translation into English available: www.legaltext.ee/et/ andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT&tyyp=X&query=p%F5hiseadus. 166 CCP, § 34. 167 CCP, § 34. 168 CCP, §§ 33 and 34. 169 CCP, § 34. 170 CCP, §§ 33 and 34. 171 CCP, §§ 338 and 339. 164 165

218 Estonia 7. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement A suspect has the right to examine the record of procedural acts (including the reports of his (her) interrogations) and to comment on the conditions, course, results and report of the procedural acts, whereupon a record shall be made of such comments.172 The suspect has to be informed about this right immediately after becoming a suspect, ie the person has been detained on suspicion of a criminal offence, or there is sufficient ground to suspect him (her) of the commission of a criminal offence and he (she) is subject to a procedural act.173 A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded court judgment.174 To date there have been no cases in which a suspect has not been informed about the right to examine the report of procedural acts.

8. The Right to Refer to Documents During Interview There is no legal text providing such a right. However, in practice suspects are not denied the opportunity if there is a need for it.

9. The Right to Consult Relevant Legal Acts There is no legal text providing such a right. However, in practice suspects are not denied the opportunity if there is need for it.

10. The Right to be Informed about Possibilities of Reconciliation with the Victim There is no legal text providing such a right. However, in practice suspects are informed if there is a possibility of reconciliation with the victim.

11. The Right to be Informed about the Place of Detention There is no legal text expressis verbis providing such a right. However, in practice suspects are not denied the information.

172 173 174

CCP, § 34. CCP, §§ 33 and 34. CCP, §§ 338 and 339.

The Rights of the Suspect/Defendant During Investigation and Prosecution

219

12. The Right to be Informed about the Charges A suspect has the right to know the content of the suspicion.175 A Prosecutor’s Office shall send a statement of charges176 to the accused and the counsel.177 In several cases the Estonian Supreme Court has decided that the statement of charges must provide a sufficiently clear and precise description of facts to serve as a basis for criminal liability. If a statement of charges has been prepared inadequately, the court is not allowed to refer to facts not mentioned in the statement of charges, regardless of what the court actually found. No person may be prosecuted and sentenced in a court on the basis of incomplete, ie insufficiently specific charges. It would be a breach of an accused person’s right for defence, and serve as a basis for annulment of a court judgment by way of appeal procedure as a material violation of criminal procedural law as provided by CCP, § 339.178 13. Access to the File During Pre-Trial Proceedings If an official of an investigative body is convinced that the evidence necessary to proceed with a criminal matter has been collected, he or she shall immediately prepare a summary of the pre-trial proceedings pursuant to the provisions of CCP, § 153 and add the summary to the criminal file. The summary of the criminal proceedings shall be sent to the Prosecutor’s Office also in electronic form. The materials of the criminal file shall be systematised and the pages thereof shall be numbered, and the file together with the physical evidence, recordings and a sealed envelope containing the personal data of anonymous witnesses shall be sent to the Prosecutor’s Office. If there are several suspects in the same criminal matter, a joint summary of the pre-trial proceedings shall be prepared setting out the personal data of each suspect separately. The following shall be annexed to the summary of pre-trial proceedings: (1) an extract from the punishment register containing the information concerning the suspect; (2) the names and residences of the persons whom the investigative body considers it necessary to summon to the court session, and references to the pages of the criminal file which contain information concerning their participation in the pre-trial proceedings; (3) a calculation of the expenses relating to the criminal procedure; (4) information concerning the average daily income of the suspect; (5) information concerning the circumstances which are the basis for calculation of a fine, to the extent of assets or confiscation.179 175

CCP, § 34. In the English translation, provided by the Ministry of Justice, the exact wording of the section is ‘extracts of a statement of charges’, but in the official Estonian text there is no reference to any ‘extracts’, and a full statement of charges is sent to the accused and the counsel. 177 CCP, § 226. 178 The Estonian Supreme Court, case no 3-1-1-130-05 (in Estonian). Available: www.riigikohus.ee/?id=11& indeks=0%2C1%2C105%2C694%2C2243&tekst=RK%2F3-1-1-130-05&print=1. 179 CCP, § 222. 176

220 Estonia A Prosecutor’s Office which receives a criminal file shall declare the pre-trial proceedings completed, require the investigative body to perform additional acts or terminate the criminal proceeding if there are grounds for termination of the proceedings. If necessary, a Prosecutor’s Office which receives a criminal file shall perform additional acts after receipt of the file. A Prosecutor’s Office has the right to eliminate from a criminal file materials that are insignificant from the point of view of the criminal matter and, if necessary, to re-order the criminal file. If a Prosecutor’s Office declares a pre-trial proceeding complete, the Prosecutor’s Office shall give a copy of the criminal file to the criminal defence counsel and submit the criminal file for examination.180 The accused has the right to examine the criminal file, through his or her counsel.181 A copy of the criminal file shall be given to the defence lawyer against signature. A recording made in a criminal proceeding or physical evidence shall be submitted to the counsel for examination at the request thereof. At the request of a defendant, a medium containing a state secret or classified information of a foreign state which is used as evidence in a criminal matter and which is not added to the criminal file shall be submitted to him or her for examination pursuant to the procedure provided for in the State Secrets and Classified Information of Foreign States Act. A notation shall be made in a criminal file concerning examination of a medium containing a state secret or classified information of a foreign state.182 A court may declare any violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded court judgment.183 To date, there have been no cases in which a defence lawyer has not been submitted a criminal file. Most likely the Estonian Supreme Court would declare it a material violation of criminal procedural law on the grounds that the accused has no chance to utilise his (her) right for defence without having access to the file.

14. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) A suspect has the right to the assistance of a counsel.184 A suspect must be informed of this right immediately after becoming a suspect, ie the person has been detained on suspicion of a criminal offence, or there is sufficient ground to suspect him (her) of the commission of a criminal offence and he (she) is subject to a procedural act.185 If a text in a foreign language needs to be translated or interpreted or if a participant in a criminal proceeding is not proficient in Estonian, a translator or interpreter shall be involved in the proceeding. A translator or interpreter is a person proficient in language for specific purposes, or a person interpreting for a deaf or dumb person. Persons who are

180 181 182 183 184 185

CCP, § 223. CCP, § 35. CCP, § 224. CCP, §§ 338 and 339. CCP, § 34. CCP, §§ 33 and 34.

The Rights of the Suspect/Defendant During Investigation and Prosecution

221

subject to criminal proceedings shall not perform the duties of a translator or interpreter.186 The contracting entity bears the costs of interpretation.187

15. The Right to Silence During the Pre-Trial Procedure A suspect has the right to refuse to give testimony with regard to the content of the suspicion.188 This means that the suspect may refuse to give testimony, or to furnish documents and information. A court may declare any violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded court judgment.189 To date, there have been no cases in which a suspect has not been informed of the right to silence. Nevertheless a suspect is required to appear when summoned by an investigative body, Prosecutor’s Office or court and participate in procedural acts and obey the orders of investigative bodies, Prosecutors’ Offices or courts.190

16. Rights of Legal Persons in Criminal Proceedings In criminal proceedings, only an insolvent legal person who has not chosen a criminal defence counsel by agreement and in whose criminal matter the participation of a criminal defence counsel is required by law, or who applies for the participation of a criminal defence counsel, may receive state legal aid as a suspect or accused.191 There are no differences in other aspects.

186 187 188 189 190 191

CCP, § 161. CCP, §§ 173, 177, 178. CCP, § 34 s 1(1). CCP, §§ 338 and 339. CCP, § 34. State Legal Aid Act, § 6.

6 France JULIETTE TRICOT

Introduction

F

RANCE’S CODE OF Criminal Procedure (CCP) was adopted in 1958 by ordinance, a redrafting of the Napoleonic Code d’instruction criminelle of 1808. Like its predecessor, but for different reasons, it has undergone so many changes since its adoption that the CCP 2012 has very little in common with the original version of 1958. Three main factors explain this situation: the modern centrality of criminal procedure in the political debate and the consequent politically driven legislative reforms;1 the profound process of internationalisation and Europeanisation of law; and the recent intensification of the constitutionalisation of criminal procedure. First of all, the importance of the political factor has to be emphasised. Since 1981, when the so-called ‘Security and Freedom Statute’ (Loi Securité—Liberté) was adopted, a few months before the first change of political majority in the history of the Fifth Republic, the political and legal debate has polarised on the opposition between efficiency, roughly attached to the protection of security, and legitimacy, linked to the protection of freedom (and the rights of the defence). However, apart from a few great statutes, notably adopted in 19932 and 2000,3 the aim of most of the reforms was limited to improving efficiency, disregarding more or less the enhancement of (or, more recently, even the mere respect for) procedural safeguards. It is above all the case of the so-called Perben II Law of 9 March 2004, which has designed, initiated or confirmed most of the modern features of the French Criminal Procedure. The number and importance of changes of French criminal procedure over the last 30 years has favoured the development of proposals to regain the consistency and accessibility lost in the process. Nevertheless, the attempts to redraft the Code have never succeeded neither, in the early 1990s4 nor more recently with the draft proposal for the Future Code of Criminal Procedure (‘Avant-projet du futur Code de procedure pénale’).5 1

D Salas, La volonté de punir: Essai sur le populisme pénal (Paris, Hachette, 2005). However, with the change of political majority, it was abrogated even before its entry into force. 3 Law no 2000-516 of 15 June 2000, reinforcing the presumption of innocence. 4 Several reports advocating the (complete or partial) reform of the Code of Criminal Procedure have been published: in 1991, Report on ‘The Preparation of the Case for Trial’ by the Commission presided over by Mireille Delmas-Marty; in 1995, ‘Proposal For the Reform of the Code of Criminal procedure’ by Michèle-Laure Rassat; in 1997, Report of the Commission presided over by Pierre Truche; in 2005 and 2006, several reports following the Outreau case. 5 Ministère de la Justice et des Libertés, ‘Avant projet du futur Code de Procédure Pénal’ (1 March 2010) www. justice.gouv.fr/art_pix/avant_projet_cpp_20100304.pdf. 2

France 223 Secondly,6 the internationalisation of law and especially of the protection of human rights has played a great part in the modern process of constant transformation of the rules of criminal procedure.7 Marked by the ratification of the European Convention on Human Rights in 1974, and above all the right of individual petition before the ECtHR in 1981, the phenomenon of internationalisation of French criminal procedure has undergone both acceleration, as well as increased complexity, with the entry into force of the instruments of criminal procedure adopted by the European Union. Thirdly, the constitutionalisation of criminal procedure,8 recently strengthened by the entry into force of the new procedure of application for a priority preliminary ruling on the issue of constitutionality (Question prioritaire de constitutionnalité—QPC) has renewed the terms of the key confrontation between security and freedom. Today’s challenges for the French criminal procedure may be reduced to three: stability, consistency and balance. As mentioned above, the pace of reform is incredibly fast, as a consequence of the immediate benefit they bring in politics and in the media. As a result, our criminal procedure is subject to a great instability, a source of considerable insecurity. But those changes do not preclude general trends, which have in common the undermining of the consistency and the balance of the general scheme.9 Global consistency is always more difficult to attain because of a phenomenon of fragmentation, due mainly to the proliferation of derogatory and/or special procedures.10 However, this observation might reveal a lack of cohesion more than a lack of consistency. Indeed, the rise of the public prosecution service (Parquet), as the key actor of the criminal procedure, offers an interpretation that restores the (hidden) consistency of the French legal corpus, but, at the same time, highlights the third challenge: the balance between the rights of the parties, and more generally, between requirements that are in tension (efficiency and safeguards, profitability and fairness, security and freedom), which are wrongly opposed and should be combined. In a nutshell, diverse and partially contradictory or conflicted trends shape progressively the new design of French criminal procedure and especially the pre-trial phase, combining derogation11 and specialisation,12 redefining (and reducing) the role of the judge to

6 At the exact junction of the political factor and the international factor, the 9/11 effect on national and international procedural criminal policies should not be underestimated. M Delmas-Marty, Libertés et sûreté dans un monde dangereux (Paris, Seuil, 2010). 7 As underlined by an author recently, stating that the pre-trial phase is ‘in perpetual evolution’: E Vergès, Procédure pénale (Paris, LexisNexis, 2011) 149. 8 Since the first analyses of Dean Favoreu (‘La constitutionnalisation du droit pénal et de la procédure pénale: vers un droit constitutionnel pénal’ in Mélanges en l’honneur d’André Vitu (Paris, Editions Cujas, 1989) 169f), CCP, Articles on the subject have been published continuously. 9 In 2006, several conferences were organised by the Cour de cassation on the issue: La procédure pénale en quête de cohérence (Paris, Dalloz, 2006). 10 On this phenomenon, see, among many others: C Lazerges, ‘La dérive de la procedure pénale’ (2003) Revue de science criminelle et de droit pénal comparé 644f. Three main sectors, which often overlap, trigger the applicability of such derogatory procedure: organised crime (CCP, Art 706-73 provides for an extensive list of offences concerned and subject to recurrent amendments, lastly by Law of 6 March 2012); terrorism (CCP, Art 706-16); drug trafficking (CCP, Art 706-26). 11 E Rubi-Cavagna, ‘L’extension des procédures dérogatoires’ (2008) Revue de science criminelle et de droit pénal comparé 23f. 12 C Lazerges, ‘Dédoublement de la procédure pénale et garantie des droits fondamentaux’ in F Alt-Maes, B Bouloc (eds), Mélanges Bouloc (Paris, Dalloz, 2007) 573f.

224 France the benefit of the constant rise of the Parquet13 while strengthening, in parallel, the rights (potentially in conflict) of the parties to the proceedings.

A. GENERAL ASPECTS OF THE PROCEDURE

1. Sources of Criminal Procedural Law The main source of criminal procedural law is the CCP. The CCP consists of a preliminary title and six chapters. Since the introduction in 2000 of the preliminary article, setting out guiding principles, the preliminary part of the Code has gained in importance.14 It has recently been redrafted in order to take into account the reform of police custody (Garde à vue) and more generally to strengthen the rights of the defence during the pre-trial phase. Initiated by a decision of the Constitutional Council seised of a QPC, the legislative process has been the occasion finally to—unfortunately only partially—draw the consequences of the lessons from Strasbourg. This reform process also illustrates the transformations affecting the system of sources of criminal procedure and the requirement of ‘legality’. Although there is no doubt that criminal procedure is governed by this requirement (referred to in France as the principe de légalité procédurale), no national or international provision establishes explicitly such a prerequisite15 that any procedural measure must be foreseen by the law. It is the ECHR that has given all its meaning and impact to this fundamental requirement as a guarantee both of the right to security and the right to a fair trial. However, it does not imply, on the contrary, the exclusion of case law as a legitimate source of criminal procedure provided that the requirements of accessibility, clarity and foreseeability are met. The place and the role of case law, though repeatedly denied, is not unimportant, to say the least. Changes brought by the internationalisation of human rights and procedure and by the recent procedure of QPC have led to uncover the modest veil that cloaked the true role of case law in criminal matter and especially in criminal procedural law.16 It is only recently that the QPC procedure of application for a priority preliminary ruling on the issue of constitutionality was introduced, under the constitutional reform of 23 July 2008. Prior to this reform, it was impossible to challenge the constitutionality of a statute which had come into force, unless a new statute, which ‘affects its scope, complements it, or even without changing its effect, modifies it in some way’17 was referred to the Council. From now on, persons involved in legal proceedings before a court are vested with this new right to argue that a statutory provision infringes rights and freedoms guaranteed by the Constitution. Once conditions of admissibility have been complied with,

13 As noted by Mireille Delmas-Marty, public prosecution services are granted with quasi-jurisdictional powers to such extent that they decide almost half of the punitive measures (‘Le risque de transformer l’État de droit en État de police’ Le Monde (Paris, 6 April 2010) 12. 14 C Commaret, ‘L’article préliminaire du CPP, simple rappel des principes directeurs du procès pénal, disposition créatrice de droit ou moyen de contrôle de la légalité de la loi?’ in J Pradel (ed) Mélanges Pradel (Paris, Cujas, 2006) 71f. 15 F Desportes, C Lazerges-Cousquer, Procédure pénale (Paris, Economica, 2009) 144f. 16 Ibid 146f. 17 23 July 1999, Decision no 99-416 DC.

General Aspects of the Procedure 225 the Constitutional Council, to whom the application is referred by the Conseil d’Etat18 or the Cour de cassation,19 will give its ruling and, if need be, repeal the statutory provision being challenged. The intensification of the constitutionalisation of criminal procedure20 resulting from the introduction of the QPC has upset the former institutional and substantial balance. It has also, as an unforeseen but virtuous consequence, enhanced the status of the European standards, deriving from the case law of the ECtHR21 or from European Union law.22 In principle, neither criminal courts nor administrative or civil courts have the power to rule on the constitutionality of the laws. However, with the QPC, they, especially the higher courts (Cour de cassation and Conseil d’Etat), have a say in the new constitutional dialogue as they filter the questions that may be submitted to the control of the Council. When deciding not to refer a question, they exercise a negative but decisive control of constitutionality. And the Cour de cassation, notably in criminal matters,23 does not seem to be overwhelmed by self-restraint when refusing to refer a question and considering that the statute or the provision in question is ‘obviously’ (à l'évidence) in conformity with the Constitution.

2. Phases of the Pre-Trial Procedure French criminal procedure distinguishes two phases: the pre-trial phase (mise en état), which is ordinarily carried out by the police, under the supervision of the public prosecution service and more exceptionally by a judge, and the trial phase. The pre-trial phase encompasses the investigation stage (phase d enquête), conducted by the police under the supervision of the public prosecution service, and the instruction or judicial investigation stage (phase d’information), which involves the intervention of a magistrate of a specialised nature: the investigating judge. This presentation of the pre-trial phase might be misleading to the extent that it implies a chronological order. On the contrary, the distinction is not chronological, even though one phase may lead to the other, but merely functional. Besides, as a result of history, police investigations and judicial investigations present themselves as two parallel or superposed frameworks of inquiry, without any connection.24 Sometimes, investigations are followed by an instruction. Most of the time, no instruction will be opened (in 95 per cent of cases). Whereas neither framework of inquiry guarantees the same rights to the suspect, the choice to open a judicial investigation is based on legal but also discretionary grounds, assessed by the public prosecution service except where the victim initiates civil proceedings by way of a complaint with civil party petition (plainte avec constitution de partie civile). 18

The Conseil d’Etat is the highest jurisdiction competent in public and administrative matters. The Cour de cassation is the highest jurisdiction competent in private and civil matters. The jurisdiction is divided in several Chambers, among which the Criminal Chamber is competent for the supervision of the application by all lower courts of substantive and procedural criminal law. 20 V Tellier-Cayrol, ‘La constitutionnalisation de la procédure pénale’ (2011) AJ Pénal 283. 21 See for instance: Assemblée Plénière 15 April 2011, Bull AP no 1-4, which ‘anticipated’ the reform of police custody on the basis of European standards. 22 Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-05665; Cass, 29 June 2010, QPC no 12/132 and no 12/133. 23 See for a striking example: Assemblée Plénière, 20 May 2011, Bull AP no 5-8. 24 Desportes, Lazerges-Cousquer (n 15) 20f. 19

226 France (a) Police Investigations (les Enquêtes) The police investigation stage opens following the reporting of an offence, a complaint by the victim or the findings of the police or the public prosecutor. It is secret and aims to seek out findings that might serve as a basis for prosecution and to decide whether to prosecute. There are two types of investigation: first, historically, the flagrant offence investigation (enquête de flagrance), which is nowadays exceptional and must be based on grounds of emergency,25 and secondly, the preliminary police inquiry (enquête préliminaire), which has become the ordinary framework of police investigations. The main difference consisted originally in the non-coercive nature of the preliminary police inquiry: measures undertaken by the police within this framework used to require the consent of the person concerned by the measure. This presentation has rapidly become obsolete. The general trend consists in the approximation of both frameworks, contributing at the same time to the marginalisation of judicial investigations. Indeed, nowadays, whereas within the framework of a flagrant offence investigation, the police may carry out coercive measures proprio motu, within a preliminary police inquiry, they may undertake such measures without the consent of the person provided that the public prosecutor has authorised them.26 The Preliminary Draft for the Code of Criminal Procedure (2010) acknowledged this trend and drew conclusions recommending the merging of all types of investigations (flagrant offence investigation and preliminary inquiry) together with the judicial investigation within a unique framework, named the ‘enquête judiciaire pénale’. It is to be noted that the unity of this framework does not mean, on the contrary, uniformity, since specialisation and differentiation of rules of procedure for certain categories of offences remain. The flagrant offence investigation may continue for no longer than eight days, unless the offence under investigation is punishable by at least five years’ imprisonment, when the prosecutor may decide to extend its duration for a maximum of eight days. At the end of this period, a preliminary police inquiry or a judicial investigation may be opened, which are not subject to fixed statutory time limits.27

25 According to CCP, Art 53, the offence is flagrant if it is in the course of being committed, or has just been committed, or where, immediately after the act, the person suspected is chased by hue and cry, or is found in the possession of items, or has on or about him traces or clues that give grounds to believe he has participated in the commission of the offence. 26 Most measures are subject to the same requirements in both types of investigations (questioning, confrontations, police custody, forced appearance of witnesses, production orders on content telecommunications data, search warrant, infiltration and controlled deliveries, interception of telecommunications and searches at night concerning organised crime offences of all premises other than homes). However several acts still require the authorisation of the public prosecutor to be performed by police officers acting within a preliminary inquiry (forced appearance of persons found at the crime scene, production orders of documents and information stored in computers or data processing system, search without the consent of the person concerned where the offence is punishable by at least five years). As to acts that can only be carried out within a flagrant offence investigation, their number continues to decline further (arrest, searches of homes at night concerning organised crime offences, searches without the consent of the person concerned where the offence is punishable by less than five years). Cf Desportes, Lazerges-Cousquer (n 15) 942. 27 Where he instructs the judicial police officers to proceed with a preliminary inquiry, the public prosecutor fixes the time limit within which the inquiry must be carried out. He may extend this for reasons given by the police officers. Where the inquiry is being carried out on their own initiative, the judicial police officers inform the prosecutor of its progress where it has been running for more than six months.

General Aspects of the Procedure 227 (b) Judicial Investigation (l’Instruction) Originally, the judicial investigation was inquisitorial, secret and non-adversarial. It was considered the ‘soul of the procedure’.28 Nowadays, this judicial investigation is scarcely opened. It remains secret, in order to protect the investigation itself as well as the presumption of innocence of the suspect, and a written procedure, but it has become more adversarial with the progressive introduction and development of the rights of the private parties. The instruction stage (also called information) aims at bringing the case to judgment. It differs according to the type of offence under investigation: it is compulsory in the case of a felony (crime), optional for a misdemeanour (délit) and exceptional for a petty offence (contravention). Where optional, the decision to open an instruction is based on the complexity of the case. An investigating judge may be seized by the initial submission (réquisitoire introductif) of the public prosecutor or by a complaint with civil party petition (plainte avec constitution de partie civile) of the victim. The investigating judge has investigating powers (generally delegated to the police through letters rogatory) as well as jurisdictional powers, except for pre-trial detention, which is no longer in his/her hands and falls under the exclusive competence of the liberty and custody judge created by the Law of 15 June 2000. The judicial nature of this type of ‘investigation’ has several consequences: it entitles the status of ‘party’ and consequently defence rights to the person under judicial examination (mis en examen) and the victim, and to some extent to the assisted witness; investigations are closed with the issuance of closing orders assessing whether there is sufficient evidence to prove that the person under judicial examination has committed the offence; a second-tier investigating jurisdiction exercises judicial review over the orders of the investigating judge (whether of a jurisdictional nature or not). Although increasingly marginalised (fewer than 5 per cent of cases are concerned) and criticised,29 the judicial investigation remains an important tool for economic and financial investigations. 3. Bodies Carrying out Investigation and Prosecution (a) Investigation The main actor of investigation is the judicial police. The judicial police are responsible for the discovering and recording of offences, the gathering evidence of such offences and the identification of their perpetrators, unless and until a judicial investigation has been initiated. Where a judicial investigation is initiated, they carry out the duties delegated to them by the judicial investigating authorities and defer to their orders. They exert their powers under the general supervision of the public prosecutor, on his/her instructions or ex officio within the framework of a preliminary police inquiry or a flagrant offence investigation (see above, section A2(a)). They act under the supervision of the investigating judge once a judicial investigation has been opened. The public prosecutor holds all the powers and prerogatives attached to a judicial police officer. He receives complaints and denunciations, takes or arranges for all necessary steps 28

PF Muyart de Vouglans, Institutes au droit criminel (Paris, Le Breton Imprimeur du Roi, 1757) 217. In order to respond to the criticism addressed to the investigating judge, the French legislator has opted for collegiality, substituting the decision of one single judge with the collective decision of three. But the reform has been postponed several times. It should enter into force at the beginning of 2014. 29

228 France to be taken and has control over the police investigation. He may decide at any point of the investigation to drop the case (see further below, section C). At the beginning of the judicial investigation, it is the public prosecutor who determines the factual scope of the investigation in its initial submission, which the investigating judge is compelled to follow, being seized in rem, unless a victim constitutes him/herself a civil party or unless an additional submission is made by the public prosecutor on the request of the investigating judge. When an instruction is opened, the investigating judge carries out both investigative and judicial functions. In addition to his/her investigation powers, which he/she exercises either in person or through the intermediary of a judicial police officer, acting under a letters rogatory (commission rogatoire), he/she also has coercive powers. He/she is compelled to investigate even-handedly (à charge et à décharge) in regard to the prosecution and the defence. During the judicial investigation, the public prosecutor has a role similar to that of the parties, though, in comparison with private parties, he enjoys a privileged position. He may request the investigating judge to take any step that he considers useful for the discovery of the truth, as well as any preventive measure necessary. He may also request to be present when the steps for which he asked are carried out. Moreover, the public prosecutor has the right to lodge an appeal before the investigating chamber against any order made by the investigating judge or the liberty and custody judge. The liberty and custody judge (juge des libertés et de la detention), seised by the investigating judge, is vested with the monopoly to order pre-trial detention or the extension of an existing order. He shares with the investigating judge the power to order measures of judicial supervision (contrôle judiciaire). The liberty and custody judge is in charge of the control of certain searches. Upon request of the public prosecutor or the investigating judge, he/she authorises searches in customs or tax proceedings and searches at night concerning organised crime offences. The liberty and custody judge is particularly in charge of the authorisation and supervision of several forms of deprivation of liberty, such as pretrial detention, detention of foreigners or mandatory hospitalisation. The judicial investigation is conducted under the supervision of the investigating chamber, which is vested with far-reaching powers to control and correct steps taken by the investigating judge. Once seised, the investigating chamber may continue the instruction itself and order any investigation measure it considers useful, either ex officio, or at the request of the prosecutor or the parties. Where the offence is a crime, in case of an appeal against the decision of the investigating judge to rule for or against committal for trial, the investigating chamber determines whether to commit the person before the assize court. (b) Prosecution The public prosecutor is the competent authority responsible for prosecution. However, if the offence is a misdemeanour, the police may, on the instructions of the public prosecutor, notify the defendant directly. Such notification has the same legal effect as a summons to appear in court. Where he considers that the facts constitute an offence, he decides whether it is appropriate to initiate a prosecution, or to implement alternative proceedings or to drop the case without taking any further action. The CCP states that the public prosecutor receives complaints and denunciations and decides how to deal with them. This provision, Article 40, is the basis of the two fundamental principles governing public prosecution: on the one hand, the opportunity principle which entitles the public prosecutor to decide on legal and discretionary grounds whether to prosecute or not an offence; and on the other

General Aspects of the Procedure 229 hand, the monopoly principle which vests the public prosecutor with the exclusive function to handle public prosecution. Both principles are subject to criticism because of the subordinate position of public prosecutors towards the Minister of Justice (Garde des Sceaux) on the basis of the hierarchical organisation of public prosecution services. The Minister of Justice may send general instructions about prosecutions. He/she may denounce offences of which he has knowledge to the prosecutor general, and charge him, by means of written instructions30 attached to the case file, to initiate or have initiated prosecutions or to seise the competent court (CCP, Article 30). The Ministry of Justice may not order public prosecution services not to prosecute. However this presentation is without prejudice of the power of the Ministry of justice on the career of public prosecutors,31 which is obviously a essential characteristic of their status of non independent magistrate. Where the public prosecutor decides to prosecute, the procedural track differs according to the nature of the offence. If the offence is a felony, he must seize the investigating judge by means of an initial submission. If the offence is a misdemeanour, several options are open. He may call for an instruction to be opened if the case is complex or choose between various methods of bringing the case before the competent court (direct summons, notification, written summons, immediate appearance), or resort to the procedure of appearance on prior admission of guilt (for misdemeanours punished by a principal penalty of a prison sentence not exceeding five years). Where the public prosecutor decides not to prosecute, although his/her decision is not challengeable, the victim is vested with the right to initiate public prosecution by means either of a summons (citation directe), which seises the trial jurisdiction competent for misdemeanours, or a civil party petition. This last procedural track has the effect of seizing the investigating judge and consequently overcoming the decision of the public prosecutor not to prosecute.

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle Apart from the criterion of flagrant offence (see above, section A2(a)), the CCP does not provide for minimum statutory thresholds to be met in order to open an investigation. As mentioned above, French criminal procedure is based on the principle of discretionary prosecution. Before initiating the prosecution, the prosecutor must assess not only the legal basis of the case, but also the appropriateness of prosecution, given, as the case may be, the general or individual instructions issued by the Ministry of Justice. Although in principle, the Ministry of Justice may not require public prosecution services to refrain from prosecuting specified offences or offenders, the power of the Garde des Sceaux on the career of public prosecutor may in practice considerably weaken the strength of the principle or at least favour the suspicion of political intervention. As mentioned above, the principle of discretionary principle is counterbalanced by the right of the victim to initiate public prosecution on his/her own, despite the passivity or the opposition of the 30 This power has been reclaimed by recent Ministers of Justice, after a brief period where Ministers had undertaken not to use it. 31 J Alix, ‘Quels visages pour le Parquet en France?’, in G Giudicelli-Delage, C Lazerges (eds), Figures du Parquet (Paris, Seuil Les Voies du Droit, 2006) 67f.

230 France public prosecution service.32 Beside this general limitation to the opportunity principle, exceptionally, a preliminary complaint may be a prerequisite for initiating public prosecution. It is notably the case in tax cases, where a prior complaint by the Administration concerned is required. In any case, there is no minimum statutory threshold for initiating public prosecution.33

5. The Status of the Accused/Defendant By way of a preliminary remark, it should be noted that the term accused (‘accusé’) refers to the trial stage (especially in case of crime, tried by the Assize Court). As far as the term defendant is concerned, it refers to civil proceedings. However, it is often used in legal literature to refer to the status of ‘party to the proceedings’ (partie à la procedure), which entitles to all the rights of the defence provided for during the re-trial phase. The status of ‘accused person’ in the sense of the Strasbourg case law is triggered by the exercise of coercion. It applies to the suspect, poorly defined by the CCP34 (see further below, section B1), meaning ‘any person against whom there exists any plausible reason or reasons to suspect that he has committed or attempted to commit an offence’. This threshold entitles the undertaking of coercive measures and, in turn, triggers the application of a selection of rights of the defence. However the suspected person is not yet a party to the proceedings or a defendant entitled with all the rights of the defence. Whereas, subject to what has just been said, during police investigations the status of a defendant is still missing, during judicial investigation, the decision to place a person under judicial investigation fulfils this function and confers the status of defendant. Within the same framework, an intermediary status is provided for: the assisted witness, which entails the exercise of several rights of the defence.

6. Specialised Procedure for Financial Criminal Investigations The law of 6 August 1975 has introduced in the CCP a new Title XIII dedicated to prosecution, investigation and trial of offences in economic and financial matters, which function is essentially to provide for specific rules on competence and to create specialised jurisdictions. Amended by the Perben II Law, the CCP distinguishes between cases of great complexity and cases of even greater complexity (due to the large number of perpetrators, accomplices or victims or of the geographical jurisdiction over which they were committed). In the first situation, in the jurisdictional area of each appeal court, one or more district courts are competent to investigate and, in case of misdemeanours, to try a list of economic and financial offences. In the second situation, the territorial jurisdiction of a district court may also be extended to the jurisdiction of several appeal courts. The list of 32 For a comprehensive analysis of the place of the victim during criminal procedure: G Giudicelli-Delage, C Lazerges, La place de la victime sur la scène pénale en Europe (Paris, PUF, 2008) 296f. 33 CCP, Art 40-1 states only that: ‘Where the public prosecutor considers that facts brought to his attention constitute an offence committed by a person whose identity and domicile are known, and for which there is no legal provision blocking the implementation of a public prosecution, he may decide to initiate public prosecution’. 34 G Roussel, Suspicion et procédure pénale équitable (Paris, L’Harmattan, 2010) 364f.

Investigation Measures 231 offences concerned is quite long, including all traditional economic and financial offences CC (fraud, breach of trust, money laundering, corruption, etc) and related offences as well as offences of the Customs Code, General Tax Code, Commercial Code, Consumer Code, etc. However, as a rule, specialised jurisdictions exercise their competence in concurrence with the ordinary jurisdictions. Specialised assistants may assist judicial authorities (the prosecutor, the investigating judge or police officers) involved in financial investigations. In the main jurisdictions (Paris, Lyon, Marseille, Bastia), the practice led to the constitution of economic and financial units in order to concentrate resources. But they are known to be understaffed, underfinanced and poorly equipped. In this sector, the fiscal administration, especially for income taxes and customs, plays a great role, being vested with great powers35 to investigate, similar to those of judicial police officers acting within a preliminary inquiry, and even sanction offences (CCP, Articles 28-1 and 28-2); their records enjoy a fortified probative value (see further below, section D2). In these fields, public prosecution services are not advised unless the administrative service has also recorded a criminal offence. In that case, the administrative agency may join the public prosecutor in bringing suit. Besides, these agencies are vested by law with dispute settlement powers, which bars further prosecutions. Finally, in cases of tax fraud, a prior complaint filed by the tax administration is a necessary precondition to prosecution.

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect The presumption of innocence and the exponential growth in attention to its effectiveness in France has favoured a more and more refined classification of status of persons involved in criminal proceedings.36 However, criteria of suspicion, where foreseen, are based on a very subjective approach,37 undermining the impact of such classification. Besides, this refinement is limited to the framework of the judicial investigation phase, leaving outside of its scope the broad spectrum of police investigation. As such the word ‘suspect’ is absent from the CCP, despite the use of ‘threshold of suspicion’ and the general principle provided for by the preliminary article concerning the right to the presumption of innocence of by any person ‘suspected’. The legal terminology used in the CCP refers only to witness, assisted witness, and person under judicial examination. To each term corresponds a specific status, exclusive of or, on the contrary, compatible with or even requiring suspicion of having participated in the commission of an offence. According to legal literature, the suspect is ‘the person who is suspected of the commission of the offence without being yet prosecuted’.38 This formula underlines that some

35

G Giudicelli-Delage Droit pénal des affaires (Paris, Dalloz, 2006) 91f. Roussel (n 34) 101f. Due to the generalisation of the criterion ‘plausible reason or reasons to suspect’. C Lazerges, ‘La présomption d’innocence’ in R Cabrillac, M A Frison-Roche, T Revet (eds), Libertés et droits fondamentaux (Paris, Dalloz, 2011) 566. 38 D Thomas, ‘Le suspect en quête d’un statut procédural’ in M Cabrillac (ed) Mélanges Cabrillac (Paris, Dalloz—Litec, 1999) 828f. 36 37

232 France investigative measures,39 which common point is to be characterised by their coercive nature, may only be carried out against a suspect (ie a person of whom there is plausible reason(s) to suspect that he/she has committed the offence) without having to formally designate the person as such. Hence the rights that the person enjoys do not derive from his/her status of suspect but from the coercive nature of the measure. This situation entails several breaches in practice to the effectiveness of the rights of the defence, and undermines the mere notion of rights of the defence.40 The only formal designation as a suspect occurs within the framework of a judicial investigation through the placement under judicial examination by the investigating judge. The latter is compelled to do so where there is serious and corroborative evidence that the person participated in the offences (CCP, Article 105). This status entitles the person to the whole range of defence rights available during the pre-trial stage: information/notification, assistance of the defence lawyer, access to the entire file (prior to the hearings), right to request acts to be undertaken, etc (see further below, section E). It also allows pre-trial detention or judicial control.

2. Questioning the Suspect Pre-Trial (a) Questioning—General Provisions Apart from in relation to police custody, the CCP provides for few provisions concerning the ‘hearing’ of any person by police officers during the police investigation, who may summon and hear any person likely to give information in respect of the offence. At this stage, the same rules apply to a person who is not involved in the facts under investigation, the suspect or the victim. Any person summoned is compelled to appear (see further below, section B4(a)). With prior authorisation of the public prosecutor, the police officer may use the law-enforcement agencies to compel persons who have not responded to a summons, or persons he/she suspects will not respond to such a summons, to appear. At the end of the hearing, an official record of the statements and the questions asked must be drawn up immediately and signed. Confrontations may also take place. The person heard is not required to swear an oath. As far as the judicial investigation is concerned, some basic rules are common to the questioning of any person by the investigating judge: the possibility for the prosecutor and the defence lawyer to be present is foreseen, the assistance of a translator, the official record of the statements and the questions asked. The investigating judge is in charge of interrogations, confrontations and hearings, which means that he/she decides on the order of interventions (of the prosecutor or the defence lawyer, for instance), puts an end to them and may refuse any questions likely to disrupt the proper course of the investigation. Any such refusal must be recorded in the official record. Submissions made by the prosecutor or the lawyer for the parties or an assisted witness, representing a formal

39 Such as police custody, identity inspections and checks, the taking of non-intimate samples, a search warrant issued by the public prosecutor or the investigating judge as well as a summons or a subpoena issued by the same judge. 40 As regard police custody, see Alix (n 31) 1699f; O Bachelet, ‘QPC ‘Garde à vue II’: de l’effectivité à la facticité du droit à l’assistance d’un avocat’ (2011) La Gazette du Palais 18f.

Investigation Measures 233 acknowledgement of a disagreement with the investigating judge over the contents of the official record, are to be attached to the case file by the investigating judge. (b) Questioning the Suspect—Specific Provisions With the reform of police custody in 2011, the conditions under which a person may be heard while in police custody have been modified in order to improve the exercise of the rights of the defence and comply (or at least attempt to do so) with the requirements of the case law of the ECtHR. Notification of the charges, of the right to have a person informed, to a physical examination, to be assisted by a defence lawyer and a translator, and to remain silent, are provided for, as well as the audio-visual recording of the questioning and the immediate assistance of the defence lawyer who may confer for 30 minutes with his/her client and have access to the documents of the case file directly related to him/her (see further below). In addition, periods of rests accompanied with meals are foreseen, and must be officially recorded. During a judicial investigation, hearing of the suspect by the investigating judge encompasses the right to be assisted by a defence lawyer and to be informed of this right at the beginning of the first hearing. The defence lawyer has access to the case file, and the questioning is subject to audio-visual recording (except for offences relating to organised crime and terrorism). The first hearing of the suspect, because it may lead to the placement under judicial investigation, which entails the formal status of party to the proceedings, is subject to formal specific provisions (CCP, Article 116). Ever since the French Revolution, suspects have not been required to swear on oath. After the Outreau case,41 the Law of 5 March 2007 has provided for the right of the suspect to ask to be confronted to each witness or other persons involved in the investigation separately.

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) (a) Interrogation of ‘Ordinary Witnesses’—Specific Provisions Before the trial, any person who can provide information on events, or on the character of a suspect, may be heard by a police officer or by the investigating judge when a judicial investigation is opened. Witnesses summoned by the police are obliged to appear, but they are not obliged to testify and may only be detained as long as is necessary for them to testify, and for a maximum period of four hours. Witnesses summoned by the investigating judge are obliged to appear and bound to testify on oath and make a statement (subject to requirements of professional secrecy). Where refusing to comply with their obligation, they are liable to a fine for petty offences of the fifth class. Witnesses summoned by the investigating judge may be heard separately and out with the presence of the person under examination.

41 F Aubenas, La méprise: l’affaire Outreau (Paris, Seuil 2005); F Samson, Outreau et après?: la justice bousculée par la commission d’enquête parlementaire (Paris, L’Harmattan, 2006).

234 France During police investigations, witnesses cannot be placed in police custody. During a judicial investigation, witnesses may be heard by the investigating judge or upon letters rogatory by a police officer. (b) Interrogation of ‘Assisted Witnesses’—Specific Provisions Since the entry into force of the Law of 30 December of 1987, an intermediate status has been created, revised in 1993 and 2000, between a simple witness and a suspect placed under judicial examination. This status confers most of the rights enjoyed by the suspect, without being placed under judicial examination. A person against whom there is serious and consistent evidence of participation in the crime may not be heard as an ordinary witness but must be heard instead as an assisted witness. More generally, when named in a complaint or in an initial or subsequent prosecutor’s submission, or implicated by the victim,42 a person who is not under judicial examination may be heard as an assisted witness, and has an incontrovertible right to be heard in this capacity if he requests it. An assisted witness enjoys the right to be assisted by a lawyer of his/her choice, who is informed prior to the hearings and has access to the case file. He/she may file application for nullities. The assisted witness may ask the investigating judge to be confronted to the person who has implicated him/her, or to be placed under judicial examination. He may not swear under oath, nor be subject to pre-trial detention and judicial control. He may not ask either for the undertaking of specific acts or measures. Questioning of an assisted witness is recorded in writing in the same way as the interrogation of the suspect. (c) Interrogation of Civil Parties Specific provisions of the CCP concerning the questioning of the injured party are only provided for where he/she has the status of civil party (subject to conditions of admissibility) within the framework of a judicial investigation. He/she is entitled with the same rights as the suspect (information, right to legal assistance, translator and access to the file, hearing before the investigating judge and not a police officer) and is not required to swear under oath.

4. Arresting the Suspect and Detention for Questioning (a) Arrest This measure presents three main features. First, it is coercive by nature. Second, it fulfils a transitional function: it is not undertaken per se, but in order to allow a further measure to be executed. Third, it requires a minimum degree of suspicion. Apart from cases where an arrest is requested within the framework of judicial cooperation on the basis of a European or International instrument (CCP, Articles 694 et seq), this measure may be carried out 42 If a person is mentioned by name or implicated in a complaint accompanying the constitution of a civil party, he/she is advised of his/her right to be heard as an assisted witness when he/she appears before the investigating judge.

Investigation Measures 235 within three legal frameworks: 1) the issuance of a warrant by the prosecutor in case of a flagrant offence investigation (CCP, Article 70)43 or by the investigating judge, in case of a judicial investigation (CCP, Article 122), if there are plausible reason(s) to suspect that the person concerned has committed an offence; 2) in the absence of such a warrant, upon prior authorisation of the prosecutor, the judicial police officer may compel to appear persons who have not responded to a summons, or persons in relation to whom there is reason to suspect they would not respond to a summons (CCP, Article 78); 3) in case of emergency within the framework of the general power vested in any citizen and a fortiori in judicial police officers to apprehend the perpetrator of an offence (CCP, Article 73). The duration of the measure depends on its aim. In the two first cases, the person should be placed immediately either in ‘retention’ (waiting for its appearance before the magistrate who issued the warrant, if the arrest is based on a summons or an arrest warrant), or in police custody if the arrest is based on a search warrant or a subpoena. In the third situation, if the arrest has been carried out by a police officer, he/she must place the person immediately in police custody. In any case, where the person is at home, the arrest may not take place before 6 am or after 9 pm, unless conditions of searches during the night are met (see further below, section B14(a)). (b) Detention for Questioning French judicial police are vested with a very coercive and controversial power to remand a person in custody. However, without having recourse to such a measure, judicial police may, in several cases, detain a person in the police station for short periods and to the extent necessary for the execution of a precise measure. It is called ‘rétention’ and does not always entitle the person with the defence rights that are normally attached to police custody. (i) Rétention There are three main cases of rétention. CCP, Article 62, related to police custody, provides for the most problematic.44 Persons in respect of whom there is no plausible reason to suspect that they have committed an offence may only be detained for as long as is necessary for their hearing. However according to the same provision amended by the Law on police custody, if during the hearing of the person, it appears that there may exist ‘plausible reasons’ to suspect that he/she has committed the offence, the person may only be detained at the disposal of the police officers under the provision of police custody.45 This ambiguous provision is the result of the primacy of the criteria of coercion over the criteria of suspicion, as will be further explained in the next paragraph. Less problematic is the case where at the end of a period of police custody, the person is to be referred to the public prosecutor (or the investigating judge). Where it may not be done as required, on the same day, the person may be detained in a specially arranged location belonging to the court, on the condition that his appearance will take place no later than 20 hours from the moment

43 This power is subject to the same conditions as police custody concerning the offence: the offence must be punishable by at least three years. 44 Bachelet (n 40) 8f. 45 The length of the questioning depends on the complexity of the case, but the measure must be carried out continuously.

236 France the police custody ended. Otherwise, the person is immediately released. Rights attached to police custody apply during this rétention, which may not be ordered where the previous police custody has already lasted 72 hours, in accordance with special procedure applicable to organised crime offences. Finally, for the purpose of identity checks, a person may be kept at the police station for a maximum period of four hours. Similarly, the persons present when a seizure is made may be kept at the scene of the seizure by the judicial police officer for as long as is necessary to complete these operations.46 (ii) Police Custody Following a process far from coming to an end, this measure has been deeply reformed by Law no 2011-392 of 14 April 201147 after several important decisions of the ECtHR,48 as well as the Constitutional Council49 and the Cour de cassation.50 The CCP defines police custody as a coercive measure decided by a police officer, under the supervision of a judicial authority. The measure allows detaining a person against whom there exists plausible reason(s) to suspect that he/she has committed an offence. It applies only to the suspect for investigations into offences punishable by imprisonment (three years minimum). The CCP stresses that the measure may not apply to witnesses, and that a judicial authority controls the measure. These two last points however remain ambiguous. The questions raised by the introduction of a non-coercive hearing (audition libre), although the initial provision was not maintained in the definitive version of the text, have not been answered completely by the reform. Indeed, the above-mentioned CCP, Article 62 interpreted a contrario entails police practices similar to non-coercive hearing.51 Police custody is triggered by coercion, not by the plausible reason(s) to suspect the commission of an offence. Hence a suspect may be treated as a witness as long as he is free to leave the police station. Using the same reasoning, the Constitutional Council held that the right to assistance of a lawyer is only triggered by coercion.52 Concerning the question of the authority in charge of the supervision of the measure, the French legislator has chosen to maintain the powers of the prosecutor, despite the risk of a subsequent violation of the ECHR.53 Unless the measure is carried out during a

46 If the person is later kept in police detention, the duration of retention is deduced from the duration of police detention. 47 Among many others, for a comprehensive and synthetic retrospective: V Lesclous, ‘Un an de garde à vue’ (2011) Droit pénal 40f. 48 Especially Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008); Dayanan v Turkey App no 7377/03 (ECtHR, 13 October 2009) and more notably: Medvedeyev and others v France App no 3394/03 (ECtHR, 29 March 2010) and Moulin v France App 37104/06 (ECtHR, 23 November 2011). 49 Cons const 30 July 2010, no 2010-14/22. This decision initiated the reform. It was followed by several decisions concerning derogatory procedures, which were validated as a principle by the Council. 50 Cass crim 19 October 2010, Bull crim no 165; Assemblée plénière 15 April 2011, Bull no 1. 51 Alix (n 31) 1699f. 52 Cons const 30 July 2011, no 2010-14/22 QPC; a reasoning which was confirmed recently, but with a restrictive interpretation requiring that the person be informed of the nature and the date of the offence he/she is suspected of and of his/her right to leave at all times the police station (Cons const 18 November 2011, no 2011191/194/195/196/197 QPC). 53 However French scholars underline that despite the discrepancy between the case law of the Constitutional Council and the ECtHR, the former acknowledging a quality that the latter denies to the French public prosecutor, the period of time during which the measure is under the supervision of the public prosecutor is indeed

Investigation Measures 237 judicial investigation (in this case, the measure is executed under the supervision of the investigating judge), the prosecutor is responsible for the supervision of the execution of the measure. Police custody must be based on the grounds listed by CCP, Article 62-2, which provides for a mere validation of the existing case law. Concerning the length of the measure, no modification has been made: the measure may last for 24 hours, renewable once, under the authorisation of the prosecutor; it may last four days where investigations relate to organised crime if the liberty and custody judge authorises the renewal of the measure twice or even six days where investigations relate to terrorism if the liberty and custody judge or, as the case may be, the investigating judge, authorises the renewal of the measure in case of a serious and imminent risk of a terrorist action. Again, computation of the duration of the measure depends on the moment when coercion was exercised, since the CCP indicates that the starting point of the measure may be fixed from the ‘apprehension’ (arrest) of the person. Police custody imply several defence rights that will be detailed in the last part of this article, such as the right to dignity, to have a person informed, to medical examination, to assistance of a defence counsel and the right to informed of those rights.

5. Pre-Trial Custodial Detention (Détention Provisoire) After a long history of failed attempts to achieve a reform, the Law of 15 June 2000 has finally introduced a double-check system (double regard) concerning the decision ordering a provisional detention. Originally in the hands of the investigating judge (deemed to be partial and using detention as a means of pressure to obtain confession or denunciations), the power to order defendants to be held in custody pending trial has been withdrawn from this judge to the benefit of another: the liberty and custody judge, who has thus become the ‘natural judge’54 of the presumption of innocence. The decision may be challenged before the second-tier investigating jurisdiction, allowing a collegiate control (référé liberté). However, the law of 18 March 2003 has vested the public prosecutor with a similar power, allowing him/her to issue a request to review detention (référé detention). The person remanded in custody or his lawyer may, at any time, request the release. Although the investigating judge may never order pre-trial detention, he/she may order the release, which is why it has been said that he/she is not a custody judge but a liberty judge. Pre-trial detention may only be ordered in the case of crime and of felony punishable by at least three years. The liberty and custody judge is seised by the investigating judge or, as the case may be (only in cases of felony and misdemeanours punishable by 10 years’ imprisonment), directly by the public prosecutor. The judge issues the order after an adversarial hearing of (and in this order) the observations of the prosecutor, the person under investigation and his lawyer. The grounds to order a pre-trial detention were amended in 2000 and 2002. It may only be ordered or extended if it is ‘the only way’ to preserve material evidence or clues or to

compatible with the European standard requiring that the person be presented promptly before a judge (see, for instance, D Rebut, ‘L’arrêt Medvedeyev et la réforme de la procedure pénale’ (2010) Recueil Dalloz 970f). 54

Lazerges (n 37) 563.

238 France prevent either witnesses or victims or their families from being pressurised or fraudulent conspiracy between persons under judicial examination and their accomplices, to protect the person under judicial examination, to guarantee that he remains at the disposal of the law, to put an end to the offence or to prevent its renewal, to put an end to an exceptional and persistent disruption of public order caused by the seriousness of the offence, the circumstances in which it was committed, or the gravity of the harm that it has caused. The law of 5 March 2007 has limited the scope of application of this last ground, subject to severe criticism. It may not be a basis for detention in cases of misdemeanours. In cases of felony, the disruption of public order cannot stem only from wide media coverage of the case. The maximum length of custodial detention, which is one of the main weaknesses of the French system, varies according to the nature of the offence (CCP, Articles 145-1, 145-2). In the case of a felony, the baseline duration is one year’s detention renewable for a series of period up to six months; the maximum duration is two years where the maximum penalty is less than twenty years, three years where the penalty is higher and even four years where the offence has been committed abroad or is a very serious offence (ie organised crime, drug trafficking or terrorism offences). In the case of a misdemeanour, the baseline duration is four months where the maximum penalty is less than five years and the person under judicial examination has never been sentenced to imprisonment. Outside these conditions, the maximum duration is one year, except for serious offences punishable by a maximum of 10 years or offences committed abroad: the detention may then last two years. At the end of the respective time limits, the detention may be extended for another period of four months if the release of the person under judicial examination would create a particularly serious risk to person and property. The pre-trial custodial detention regime remains controversial and an object of criticism from all parts. Whereas some underline the lack of proper means to ensure an effective control and the artificial nature of the double check solution, others are in favour of the generalisation of a collegiate control,55 possibly accompanied by the disappearance of the investigating judge, replaced by the prosecutor.

6. Interception of Postal Communications (Letters) This measure is governed by the rules on search and seizure (see further below, section B14(b)) where specific provisions apply concerning documents covered by professional secrecy, and especially those in possession of a defence lawyer.

7. Interception of the Contents of Telecommunications (Content Data) For a long time, the sole legal basis for the practice of tapping the telephone of a person suspected of being involved in a felony or a misdemeanour was the general provision of 55 Not limited only to the decision on pre-trial detention, but to the whole judicial investigation, in line with the introduction of a collegiate first tier-investigating judge by the Law of 5 March 2007, which effective entry into force has been postponed until 2014.

Investigation Measures 239 CCP, Article 81, although case law had set out more precise conditions. However the case of Huvig and Kruslin56 led the French legislator to adopt specific legal provisions. Since the Law of 10 July 1991, the investigating judge, in case of felonies or misdemeanours punishable by at least two years’ imprisonment, may order the interception, recording and transcription of telecommunication correspondence. The interception order is made in writing, indicating all the details allowing the identification of the link to be intercepted, the offence which justifies resorting to an interception as well as the duration of this interception which may not exceed four months, unless the conditions to renew the order are met. It is not a jurisdictional decision and, as such, cannot be appealed. It may only be subject to an application for annulment. Prior to the ruling against France in Matheron,57 the Cour de cassation used to exclude from the judicial review of the second-tier investigating jurisdiction the regularity of interceptions ordered in another procedure.58 These rules apply to any means of telecommunications (telephone, fax, telex, communication by radio, broadcasting of images, electronic communication, etc) provided that there is an interception of communications (interception de correspondance). Therefore, where there has been no interception, the police may, without authorisation from the investigating judge, give an account of words spoken in their presence.59 The Perben II Law has extended the scope of such measures allowing police officers to resort to an interception within the framework of a flagrant offence investigation or a preliminary police inquiry when they carry out investigations on organised crime offences. The authorisation is made by the liberty and custody judge, at the request of the prosecutor for a maximum period of 15 days, renewable once under the same conditions of form and duration. The CCP provides for special safeguards in respect of certain professions or functions (Members of Parliament, magistrates, defence lawyers), such as informing the President of the Assembly or of the Bar association (Bâtonnier). Concerning the defence lawyer, unless he himself is suspected of having committed an offence,60 the investigating judge may not resort to interception.61 Since the entry into force of the Law of 12 December 2005, under penalty of nullity, no transcription may be made of any communication with a defence lawyer related to the exercise of the defendant’s rights.62 However the principle of confidentiality only applies to communications between the lawyer and his client.63 The judicial police officer appointed by the investigating judge transcribes any communication useful for the discovery of the truth. An official record is made of these transcriptions, which is attached to the case file. The recordings are destroyed on the request of the prosecutor upon the expiry of the limitation period for prosecution. An official record is made of the destruction.

56

Huvig and Kruslin App no 11105/84 and 11801/85 (ECtHR, 24 April 1990). Matheron App no 57752/00 (ECtHR, 29 March 2005), preceded by another decision immediately followed by a decision of the Cour de cassation: Cass crim 7 December 2005, Bull crim no 327. 58 Cass crim 6 October 1999, Bull crim no 210. 59 Cass crim 2 April 1997, Bull crim no 131. 60 Cass crim 15 January 1997, Bull crim no 14; Cass crim 1 October 2003, Bull crim no 177. 61 Cass crim 17 September 2008, Bull crim no 191. 62 A similar provision has been introduced by the Law no 2010-1 of 4 January 2010 to protect the secrecy of journalistic information sources (CCP, Art 100-5). 63 Cass crim 30 September 1998, Bull crim no 243. 57

240 France 8. Monitoring of Telecommunication Traffic Data The CCP does not provide for specific measures concerning the monitoring of telecommunication traffic data. Provisions concerning interception of the contents of telecommunication seem to apply accordingly. Nevertheless, Law no 2001-1062 of 15 November 2001 requires telecommunications operators, exclusively for the needs of discovery and reporting of offences, to keep data at the disposal of the judicial authorities for a period of one year. Retention and processing of these data are governed by Law no 78-17 of 6 January 1978 on computers, databases and freedom. The data concerned are those necessary to identify the subscriber or user and those relating to the technical characteristics of the communications provided. Contents data are explicitly excluded. Besides, within the framework of a flagrant offence investigation or a judicial investigation, at the request of a judicial police officer, public organisations or private legal persons must, where it is stored in one or more computer or data processing systems that they administer (CCP, Articles 60-2 and 99-4), make available any information helpful for the discovery of the truth, unless the information is covered by secrecy protected by statute. Upon prior authorisation of the liberty and custody judge, the public prosecutor orders judicial police officers to require telecommunications operators to undertake without delay all appropriate measures to ensure the preservation of the text of the information consulted by persons using the services provided by the operators, for a period that may not exceed one year. Refusal to respond to such a request without a legitimate reason is punishable by a fine of EUR 3,750.

9. Surveillance in Public and Private Sphere (Acoustic and Visual) Only recently, the CCP has organised the taking of audio recording and visual images in specified vehicles and places (CCP, Articles 706-96 et seq) through the Perben II Law.64 The scope of the measures is limited to organised crime and only an investigating judge may order them. Even though the Cour de cassation65 considered that such measures were already foreseen by law, on the basis of the general provisions of the CCP, and did not breach the right to privacy, the ECtHR66 had rules several time that it was not the case. The investigating judge, by means of a reasoned decision, after hearing the opinion of the prosecutor, may authorise judicial police officers acting under letters rogatory to install any technical device designed to detect, preserve, transmit or record words spoken by any person in a private or confidential context, in private or public places or vehicles, or the images of any person in a private place, without the consent of the persons concerned. The authorisation may last for a maximum period of 4 months and is renewable under the same conditions of forms and duration. Where necessary, the investigating judge may authorise the entry into a vehicle or a private place, even outside the times provided for searches and house visits, without the

64 See E Verny, ‘Des sonorisations et des fixations d’images décidées par le juge d’instruction’ (2004) Revue pénitentiaire et de droit pénal 777f. 65 Cass crim 12 December 2000, Bull crim no 369. 66 Vetter v France App no 59842/00 (ECtHR, 21 May 2005) and Wisse v France App no 71611/01 (ECtHR, 20 December 2005).

Investigation Measures 241 knowledge or the consent of the owner, possessor or occupant of the vehicle/place concerned. If an inhabited dwelling is involved and the operation must be carried out outside the times provided for searches and house visits, this authorisation is given by the liberty and custody judge seised to this end by the investigating judge. These procedures, which may serve no other purpose than the installation (or removal) of the technical device, are carried out under the authority and the supervision of the investigating judge. The implementation of the technical device may not involve the office or house of a defence lawyer (CCP, Article 56-1), the premises of a media organisation (CCP, Article 56-2), the office of a doctor (CCP, Article 56-3), nor may this be carried out in any vehicle, office or domicile of a Member of Parliament. Official reports of these procedures are drawn up and placed under official seals.

10. Monitoring of Bank Transactions In a strict sense, the CCP does not foresee the monitoring of banking transaction. However, it is in practice covered by the general power of requisition provided for in CCP, Article 60-1, which, combined with CC, Article 132-22, entitles judicial police officers to request information on bank accounts, on banking transactions and the monitoring of banking transactions. Indeed, according to CCP, Article 60-1, a judicial police officer may order any person, establishment or organisation, whether public or private, or any public services likely to possess any documents relevant to the inquiry in progress, including those produced from a registered computer or data processing system, to provide them with these documents, unless legal privileges apply. Without legitimate grounds, the duty of professional secrecy (in this case, bank secrecy) may not be given as a reason for non-compliance. The failure to respond to such an order as quickly as possible constitutes an offence punishable by a fine of EUR 3,570. Besides, according to CC, Article 132-22 the public prosecutor, the investigating judge or the trial court may require the parties, any public administrations, financial institutions or persons holding funds for the defendant, to communicate relevant information of a financial or fiscal nature, without confidentiality being raised as an objection.

11. Tracking and Tracing of Objects and Persons Tracking and tracing are not regulated as such by the CCP. But, to some extent, provisions on acoustic and visual surveillance (CCP, Article 706-96, see above, section B9) and controlled deliveries (CCP, Article 706-80, see further below, section B20) may serve the same purposes. However, French scholars67 consider that those provisions do not sufficiently and adequately cover all practical hypothesis and needs of tracking and tracing and recommend the adoption of a specific provision to address the issue and at the same time comply with the European standards.68

67 See H Matsopoulou, ‘La surveillance par géolocalisation à l’épreuve de la Convention européenne des droits de l’homme’ (2001) Recueil Dalloz 724f. 68 Especially those indicated in Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010).

242 France 12. Data Mining and Profiling Law no 2011-267 of 14 March 2011, the so-called LOPSI II, has inserted in the CCP a new section, entitled ‘Police Databases’ (Des fichiers de police). It gathers several police databases of information on persons who have been wanted, prosecuted or convicted (CCP, Article 230-6), the number and scope of which are constantly increasing, despite the criticism of the Commission Nationale Informatique et Liberté (CNIL),69 the national agency in charge of the protection of personal data. The CCP foresees the possibility of using software to cross-check information in order to resolve ongoing investigations. The use of technologies to process personal data is from now on foreseen and legitimised by the CCP. The latter distinguishes two types of police database: criminal records databases (fichiers d’antécédents) and serial analysis databases (fichiers d’analyse sérielle). The first type contains data on persons in respect of whom there exists serious or corroborated evidence making it likely that they may have committed an offence (a felony, misdemeanour or petty offence of the fifth class). Those data are processed under the supervision of the prosecutor, as well as the supervision of a magistrate appointed by the Minister of Justice. Both may order the erasure, the retention or the rectification of personal data stored in those databases. The retention of data is not incompatible with an acquittal or a discharge order. Access to the databases is restricted to the prosecutor, the investigating judge and to police officers especially authorised. The second type authorises the collection of data on persons suspected of participation in a felony or a misdemeanour punishable of at least five years’ imprisonment as well as data on their victims. The specificity of those databases is to allow crosschecking information and storing data on persons only suspected of participation in an offence. Their access is strictly limited to the prosecutor, the investigating judge and police officers and to the needs of the investigation. A third type of database concerns the official record of the person sought, which records data on persons object of a warrant, an order or a note of a magistrate seeking their search or arrest. Finally, the CCP authorises the use of software developing forensic analysis and allowing police officers to crosscheck data on modus operandi (CCP, Article 220-20). However the Constitutional Council has stated that ‘these software can only lead to creating, with the authorisation of these judicial authorities, a system processing personally identifiable information data, in the context of an investigation or of a certain procedure related to a series of facts and only for the needs of the investigation’.70 The data collected and processed in this case must be destroyed at the end of the investigations and at least three months after their collection.71

69 This Authority is responsible for ensuring that information technology remains at the service of citizens, and does not jeopardise human identity or breach human rights, privacy or individual or public liberties. The Commission fulfils its duties in pursuance of the Law of 6 January 1978 as amended on 6 August 2004. 70 Cons Const, 10 March 2011, decision no 2011-625 DC. 71 On this basis, the Constitutional Council criticised the legislative provision that provided for the erasure of the recording by the police officer ‘at least three years after the last recording’. According to the Council, each recording must be erased after three years, this duration being an absolute maximum.

Investigation Measures 243 13. Access to Relevant Premises (‘Crime Scene’) Any police officer informed of a crime that is flagrant, or of a death, the cause of which is unknown or suspicious, must immediately inform the prosecutor, visit the scene of the crime without delay, and record any appropriate findings (CCP, Articles 54-1 and 74). The officer ensures the conservation of any clues liable to disappear and of any item which may be of use for the discovery of the truth. He/she seizes the weapons and instruments which were used to commit the felony or which were designed or intended for its commission, as well as any item which appear to have been the product of this felony. He presents for recognition any item seized to any persons who appear to have been involved in the offence, if they are present. Responsibility is transferred from the police officer to the public prosecutor once he arrives (CCP, Article 68). In the context of an instruction, the investigating judge may travel with his clerk to anywhere in the country in order to take any investigative steps after informing the public prosecutor.

14. Search and Seizure (a) Searches (i) Body Search Traditional body searches (fouilles corporelles) were only recently regulated by the Law on police custody in accordance with the principle of dignity of the person and the principle of proportionality.72 Technology has progressively entailed an increasing number of investigation measures to be performed on the body of the suspect. The Law of 18 March 2003 has inserted provisions concerning the taking of non-intimate samples (prélèvements externes), as well as fingerprints, palm-prints and photographs, which may be collected within a police or a judicial investigation. Both the suspect (the person against whom there are plausible reason(s) to suspect that he/she has committed the offence) and the witness may be subject to such measures. They require consent, but the refusal of the suspect constitutes an offence, punishable by a fine. (ii) Searches of Premises The measure is not precisely defined by the CCP. A search implies the examination of the interior of premises, which are normally private, in order to find evidence or identify the offender. Therefore, if the place is not private (progressively the Cour de cassation has adopted the comprehensive conception of the ECtHR)73 or if the public prosecutor, the investigating judge or the police officer do not enter the place74 or do not search actively75 for evidence, rules on search do not apply. 72 Integral body searches (strip searches) are of an exceptional nature and subject to strict conditions; as for invasive examination of the body, only physicians may perform them (CCP, Art 63-7). 73 See F Desportes, L Lazerges-Cousquer Traité de procédure pénale (Paris, Economica, 2009) 2330. 74 Cass crim 29 March 1994, Bull crim no 118 (pictures taken by police officers from outside). 75 Consent excludes coercion: Cass crim 22 May 2002 unpublished no 01-84056 (documents handed over voluntarily by the accountant).

244 France In flagrant cases only,76 police officers may carry out searches without letters rogatory and without the consent of the person. The investigating judge may carry out searches in any premises where there may be objects, which could be useful to the discovery of the truth (CCP, Article 94). In principle, apart from these cases, searches require the express consent (in writing) of the person upon whose premises the operation is to take place. However, the requirement of consent, which used to characterise the preliminary police inquiry and its (originally) non-coercive nature, has been greatly restricted by the Perben II Law. Concerning offences punishable of at least five years, the liberty and custody judge may, at the request of the public prosecutor, decide, in a written and reasoned decision,77 that searches will be carried out without the consent of the person in whose home they take place. Searches may not start before 6 am or after 9 pm, and must be conducted in the presence of the person whose home is being searched, or where that is impossible, in the presence of a representative of his choice, or otherwise, of two witnesses, who must sign the written record of the operation. Apart from these general rules, searches are governed by special and derogatory procedures. First, a general derogation to times when searches may take place is provided for by CCP, Article 58, which allows searches at night where they are requested from within. The CCP also allows searches at night in relation to certain offences (drug trafficking, prostitution, organised crime, terrorism), provided that they are authorised by a judge (the liberty and custody judge in case of an inquiry or the investigating judge in case of a judicial investigation) at the request of the prosecutor. However searches at night may be carried out by police officers without prior authorisation when they take place in specified places78 within the framework of investigations into drug trafficking offences (CCP, Article 706-28) or prostitution offences (CCP, Article 706-35). Nevertheless, searches at night in private homes remain strictly limited to emergency situations.79 Protection of defence rights imposes special safeguards when a search takes place in the office of several professions80 (lawyer, doctor, notary, attorney or bailiff). A common requirement consists in the intervention of a magistrate (be it a prosecutor during an inquiry or the investigating judge in case of a judicial investigation) and the presence of a person representing the profession. As far as lawyers are concerned, the protection is extended to their home. The measure is authorised by a judge or a prosecutor, by a written and reasoned decision, which indicates the nature of the offence(s) in respect of which the search is made, the reasons justifying the search and its object. From the start of the operation, the substance of the decision is made known to the president of the Bar association or his delegate by the judge or the prosecutor. 76

Or if the person appears to have in her possession items linked to the offence. The decision must detail the offence for which the evidence is being sought, as well as the address of the places in which these operations may be carried out. It is reasoned with reference to the legal and factual matters which justify the necessity for these measures. 78 For instance: premises where collective use of drugs occurs or where drugs are illicitly produced, altered or stocked, or premises of any hotel, furnished house (provided they do not involve an inhabited dwelling), pension, bar, club, dance hall, place of entertainment and in any other premises open to or used by the public, where it is established that persons indulging in prostitution are regularly accepted in such premises. 79 They can take place within the framework of flagrant offence investigation and judicial investigation, but are strictly forbidden within a preliminary inquiry. 80 Other places are especially protected: a press or audio-visual communications business, Parliament and military establishments. 77

Investigation Measures 245 (b) Seizure Any objects that may assist in revealing the truth or whose disclosure might harm the investigation may be seized (CCP, Article 54). The seizure takes place within the context of a search or when the commission of an offence is established. Objects seized are listed and placed in a secure store and sealed. If the court does not confiscate them, the seized objects are returned to their owner (except dangerous objects that must be destroyed). Specific provisions on seizure of computer data are described in the next subparagraph as part of the general procedural framework concerning on-line search. Besides the seeking of evidence, seizure also contributes to confiscation by securing objects that may be subject to such measures (Article 131-21 of the Penal Code). This type of seizure is foreseen in a specific title of the CCP (‘Special seizures’, des saisies spéciales) introduced by Law no 2010-768 of 9 July 2010, in order to comply with European obligations. They may cover all or a selection of the assets of the person. In both cases, the property of the object seized is inalienable. Seizure also arises in the French legal framework for the freezing of bank accounts.81 The CCP does not provide for a specific measure, but case law shows that the measure is based on the general powers of police officers set out by CCP, Articles 54, 76, 94 and 97: they ensures the keeping of any clues liable to disappear and of any item which may be of use for the discovery of the truth. This measure may be taken within the framework of a flagrant offence inquiry, on the basis of a ‘simple’ request, a preliminary police inquiry (in this case they may require the consent of the holder of the account) and on the basis of letters rogatory.82 Where materials are seized in a lawyer’s office, the Bâtonnier of the Bar plays an active role. He may oppose the seizure of an object if he considers the seizure to be irregular. In such a case, the contested document is sealed up in a bag and sent to the liberty and custody judge (CCP, Article 56-1).

15. On-line Search of Computers This measure has been recently introduced by Law no 2011-267 of 14 March 2011, which inserted a new section within the framework of procedures applicable to organised crime offences. It authorises remote computer data capture. Only an investigating judge, after hearing the opinion of the public prosecutor, may authorise a police officer, acting under letters rogatory, to install any technical device designed to access, in any places, to computer data and record those data as they appear on the screen or are entered by the user (CCP, Articles 706-102-1 et seq). These procedures are carried out under the authority and the supervision of the investigating judge. His decision must specify the offence(s) justifying the measure, the exact location or precise description of the databases concerned. The operation may last for a maximum of four months, renewable once.

81 82

A Bollé, ‘Le blocage des comptes bancaires en droit pénal’ (2009) Gazette du Palais 13f. CCP, Art 81 and 152, Cass crim 4 February 2003, unpublished no 02-83.176.

246 France The reform was presented as a simple amendment of the Law of 18 March 2003,83 which introduced CCP, Article 57-1 (for flagrant offence investigation), CCP, Article 76-3 (preliminary police inquiry) and CCP, Article 94 et 97-1 (judicial investigation). Yet, these provision only allow police officers, during the course of a search, to access any data relevant to the on-going inquiry, stored in a computer system set up within the premises where the seizure is carried out, or in another computer system, provided that the data is accessible from the initial system or is available for the initial system. In reality, the reform of March 2011 aims at overcoming the difficulties raised in practice by searches carried out remotely.84 These difficulties stem from, first, the necessity to open a judicial investigation and to issue international letters rogatory when the computer system is located outside the French territory, exposing investigations to the length of such a procedure, second, the applicability of rules on privileges related to search, and third, the requirement of the presence of the person whose system is searched.

16. Freezing In French criminal procedural law, freezing arises in connection with the financing of terrorism85 and the cooperation between EU Members States. CCP, Articles 695-9-1 et seq adapt French criminal procedure to the requirements of the EU Council’s Framework Decision 2003/577/JHA of 22 July 2003 and as far as the decisions of French judicial authorities are concerned; the CCP refers generally to the rules on seizure. Similarly, as mentioned above, as regards bank accounts, rules on seizure govern a practice ignored as such by the CCP but addressed by case law since the early 1990s (see above, section B14(b)).

17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) Production orders refer to the power of réquisition in French criminal procedural law. Police officers are vested with a general power to request the production of documents or information (CCP, Articles 60-1, 77-1-1 and 99-3). Special agents in charge of tax, customs or consumer law (agents verbalisateurs) are vested with similar powers (droit de communication). In both cases the refusal to execute the request constitutes a criminal offence (délit d oppostion in the case of special enforcement agents). Police officers may order any person, establishment or organisation, whether public or private, or any public services liable to possess any documents relevant to the inquiry in progress, including those produced from a registered computer or data processing system, to provide them with these documents. This measure applies to banking information and

83 M Moritz, ‘Les perquisitions en ligne et la surveillance d’internet: De Karlsruhe à Paris, similitude des enjeux, divergence des solutions?’ (2008) Revue Lamy Droit de l’immatériel 53f. 84 P Belloir, ‘Perquisition et saisie en matière de lutte contre la cybercriminalité’ (2010) Revue Lamy Droit de l’immatériel 60f. 85 Law no 2006-64 of 23 January 2006; P Chrestia, ‘La loi du 23 janvier 2006 relative à la lutte contre le terrorisme: Premières observations’ (2006) Recueil Dalloz 1409f.

Investigation Measures 247 transaction without further conditions. Law no 2002-1094 of 29 August 2002 (LOPSI) explicitly compels agents of Tax and Customs Directorates, Directorate-General for Competition, Consumer Affairs and Repression of Fraud (DGCCRF) to disclose to police officers, at their request, any information or documents. Subject to legitimate grounds, the duty of professional secrecy cannot be given as a reason in order not to comply with this order. Where these orders relate to lawyers, doctors and journalists, the transfer of these documents may only take place with their consent. In case of a preliminary police investigation, the police officer may act only upon prior authorisation of the prosecutor (under pain of nullities which do not require the establishment of a detrimental nature).86 The request may be made by all means. The CCP details specifically the conditions of exercising this power in the matter of computer data and telecommunication data. At the request of police officers, public organisations or private legal persons must make available information helpful for the discovery of the truth, with the exception of information the secrecy of which is protected by statute, where it is stored in one or more computer or data processing systems that they administer. A judicial police officer, intervening on the orders of a public prosecutor authorised in advance by a decision from the liberty and custody judge, may require telecommunications operators to take without delay all appropriate measures to ensure the retention, for a period that may not exceed one year, of the text of the information consulted by persons using the services provided by the operators. The organisations or persons to which this article applies must make the required information available as quickly as possible by means of telecommunication or computers. Refusal to respond to such a request without a legitimate reason is punished by a fine of EUR 3,750.

18. Invoking the Assistance of Experts to Examine Clues etc. In a strict sense, during the pre-trial phase, resort to expert opinion is restricted to the investigating authorities (investigating judge and second-tier investigating jurisdiction). However, the public prosecutor87 or the police officer may call on any qualified person (who takes an oath when he/she is inscribed on the official list or, if he/she does not appear on the list, each time he/she is called upon) ‘if any technical or scientific reports or examinations need to be carried out’ (CCP, Articles 60 and 77-1). The Cour de cassation considers that the technical or scientific tasks requested by the prosecutor are of the same nature as those ordered by the investigating judge to the expert.88 During a judicial investigation, where the analysis of evidence raises questions of a technical nature, whether related to the offence itself or to the behaviour of the suspect or the consequences of the acts for the victim, the investigating judge or the second-tier investigating jurisdiction may order an expert opinion either upon the application of the public prosecutor or the parties, or of its own motion. Where the investigating authority considers that there is no need to grant an application for an expert opinion, he/she must issue a reasoned order within one month after receiving the application.

86

He/she may act on his/her own in the case of a flagrant offence investigation. Lately the legislator has vested the public prosecutor with powers to call for an expert opinion. But, in that case, the aim of the measure is not the discovery of the truth, but the evaluation of the damage or the health of the victim or the perpetrator. 88 Cass crim 14 September 2005, Bull crim no 226. 87

248 France As a rule, and despite some improvements introduced by Law no 2007-297 of 5 March 2007, expert opinions are not treated adversarially.89 Unlike civil procedure, the expert is not bound by the adversarial principle, and is not authorised to communicate information directly to the parties. The main contribution of the reform of 2007 concerns the information of the parties. But their powers remain modest (see also further below, sections E37 and E41). They may ask the judge to call for expert help or, if an expert is appointed, to appoint a second expert. They may specify the questions that they want put to the expert in his application and ask the judge to order the expert to undertake certain investigations, or to hear any named person who might be able to provide technical information (CCP, Article 165). If the judge refuses to accept one of these requests90 an appeal lies to the second-tier investigating jurisdiction.

19. Infiltration The Perben II Law of 2004 inserted a measure with a restricted scope of application, limited to organised crime, drug trafficking91 and few offences related to the endangering of minors (prostitution)92 and the trafficking of human beings. The measure is governed by a general principle according which these acts may not constitute an incitement to commit any offences. Infiltration is defined by the CCP as the power to carry out surveillance on those persons suspected to have committed a felony or a misdemeanour by passing himself off to these persons as one of their fellow perpetrators, accomplices or receivers of stolen goods (CCP, Article 706-81). To this end, a judicial police officer is specially authorised to use an assumed identity and to commit, where necessary, certain actions explicitly foreseen by the CCP, which may, under ordinary circumstances constitute an offence. Contrary to surveillance (see below), infiltration is not applicable to felonies and misdemeanours committed by organised gangs, nor misdemeanours of participation in a criminal association. Apart from the general standard of the ‘needs of the investigation’ (nécessités de l’enquête), the decision to authorise an infiltration is only subject to formal prerequisites. First of all, the decision must be taken by a magistrate, who will then be responsible for the supervision of the execution of the measure. This magistrate is the prosecutor in case of a police investigation or the investigating judge in case of a judicial investigation, the latter being obliged to solicit the prior opinion of the former. Second, the decision itself is subject to several formal conditions: it must be issued in writing and specially reasoned, under penalty of nullity. It details the offence(s) which justify the use of this measure, the identity of the judicial police officer under whose authority the operation will be carried out93 and the length of the infiltration operation, limited to a maximum of four months.

89

C Ambroise-Castérot, P Bonfils, Procédure pénale (Paris, PUF, 2011) 309. The drafting of a provisional report is mandatory if requested by the public prosecutor or a party (CCP, Art 161-1). 91 Originally, infiltration operations were limited to the investigation of those offences. Specific provisions in this area remain, mostly because of their higher flexibility. Notably, the judicial authorisation does not need to be in writing or reasoned and may be issued ‘by all means’. 92 In this field, the Law No 207-297 of 5 March 2007 has introduced the possibility of carrying out ‘electronic’ infiltration (CCP, Art 706-35-1 and 706-47-3). 93 Unlike the undercover officer, the police officer under whose authority the operation is carried out is not covered by anonymity. He will be required to answer for the execution of the measure. 90

Investigation Measures 249 The operation may be renewed under the same conditions of form and duration. However, the magistrate who authorised the operation may, at any time, order its suspension before the expiry of the fixed time limit and the CCP authorises the undercover agent to carry out its activities, without being criminally liable, for as long as strictly necessary for him to put an end to the surveillance under conditions ensuring his safety, provided that it does not exceed four months. The authorisation is attached to the case file after the infiltration operation has been completed. The true identity of police officers who have carried out infiltration operations under an assumed identity must not appear at any stage in the proceedings and the disclosure of their identity constitutes a criminal offence. The judicial police officer under whose authority the infiltration operation is carried out may solely be heard in relation to this operation and only in the capacity of a witness. However, if the person under judicial investigation has been implicated due to reports made by an officer who personally carried out infiltration operations, he/she may request to be confronted with the officer who will be heard as an anonymous witness.94

20. Controlled Deliveries Controlled delivery was first regulated in 1991 within the limited framework of investigations concerning drug trafficking.95 The Perben II Law revised the provision, including it within the framework of special procedures applicable to organised crime. It distinguishes surveillance (CCP, Article 706-80) and infiltration (CCP, Article 706-81). According to the CCP, ‘surveillance’ means on the one hand the classic measure of ‘tailing’ (filature), which consists in the surveillance of persons against whom plausible reason(s) exist to suspect that they have committed any offences falling within the scope of organised crime and on the other hand, the modern measure of controlled deliveries, defined as the surveillance of the transport of objects, goods or products arising from the commission of any of these offences or used to commit them. The power to carry out surveillance has always been recognised as being within the ambit of the judicial police, but it does not imply coercion.96 Within the scope of investigation of organised crime, the specific provisions permit the judicial police, acting within the framework of investigation of a flagrant offence, or a preliminary police inquiry, to extend the measure to the whole national territory, having informed the prosecutor (although his authorisation is not required). CCP, Article 706-80 also legitimates the use of technical devices placed on a vehicle. Article 67bis of the Customs Code provides for a similar provision, vesting customs agents with the power to carry out surveillance measures within the whole national territory when they have plausible reason(s) to suspect that a customs offence punishable by at least two years’ imprisonment has been committed.

94 This solution is considered to be in accordance with the European requirements that led the ECtHR to rule against France in 1990: Delta v France App no 11444/85 (ECtHR, 19 December 1990). 95 Law no 91-1264 of 19 December 1991. 96 CCP, Art 14 is considered to be a sufficient legal basis for such non-coercive measure. It reads: ‘the judicial police are charged with the task of discovering violations of criminal law, of gathering evidence of such violations and of identifying their perpetrators, unless and until a judicial investigation has been initiated’.

250 France C. PROSECUTION MEASURES

Prosecution measures are mostly decided and carried out by public prosecution services through the whole process of the criminal procedure until the enforcement of the sentence. However, the victim, with the status of civil party, and the investigating judge, where the public prosecutor is not vested with an exclusive competence, may intervene or, to some extent, interfere with the exercise of the prosecutorial powers of the public prosecutor.

1. Opening of Investigation and Prosecution As mentioned above (see section A4), opening of investigation is mostly in the hands of the police. However, police officers are obliged to inform the public prosecutor, as they act under his/her authority. Prosecution lies in the hands of the public prosecutor, who is vested with a discretionary and exclusive power. He/she may decide whether to prosecute or not either on legal grounds or on discretionary grounds, in accordance with the opportunity principle, and then choose between several procedural tracks provided for by the CCP. He may notably seise the investigating judge, who cannot act propio motu. The victim, by way of a complaint with civil party petition, may also initiate prosecution, since such a complaint has the effect of seising the investigating judge. The victim may also seise directly the trial jurisdiction by summoning the defendant. In case of an out-of-court settlement between a government department and the offender, the settlement (which occurs principally in areas where a government department is both the victim of the offence and authorised by statute to initiate a prosecution concurrently with the public prosecutor: tax, customs, forestry, fresh-water fishing), halts the prosecution if it takes place before the case has been heard.

2. Unilateral Disposal of the Case (Including Remedy Against It) Where the public prosecutor considers that facts brought to his/her attention constitute an offence committed by a person whose identity and domicile are known, and for which there is no legal provision blocking the implementation of a public prosecution, he/she decides if it is appropriate to initiate a prosecution, or to implement alternative proceedings to a prosecution, or to close the case without taking any further action. In the latter case, the public prosecutor may close the case for discretionary reason; this decision is not a judicial act, being deprived of the authority of res judicata. The public prosecutor may go back on his decision as long as the time limit for prosecuting has not expired. A victim informed of the decision may lodge an appeal to the General Prosecutor (CCP, Article 40-3) or initiate a prosecution by a complaint with civil party petition, which seises the investigating judge, or by directly summoning the defendant to the hearing. Where seised, the investigating judge is compelled to investigate. He/she may issue an order declining to investigate (ordonnance de refus d’informer) only on legal grounds (competence, time limits and absence of criminal qualification) and subject to appeal before the second-tier investigating jurisdiction. Where the investigating judge comes to the conclusion that the

Prosecution Measures 251 evidence against the person under judicial examination is insufficient, he issues an order ruling that there is no cause to prosecute (ordonnance de non-lieu).

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against It) In France, three forms of ‘negotiation’ between the parties may end or modify the ordinary course of proceedings. Most of them, notwithstanding their differences, are referred to in the CCP as ‘alternative proceedings’ (alternatives aux poursuites). They have in common being on the initiative of the public prosecutor. But they differ whether they might settle the dispute without the involvement of a judge. Where the measure only involves the public prosecutor, the latter seems never to be precluded from initiating further prosecution, even when the alternative measure is successful, despite the case law of the ECJ, which may challenge such a solution. The first category is based on the philosophy of the third way (troisième voie), which is a compromise between dropping a case and initiating prosecution. It is the recognition of an informal practice by public prosecutors to provide for a rapid response instead of simply dropping the case. The public prosecutor may choose between several measures,97 which have the common effect of suspending the prescription period, so that prosecution for the offence does not become time-barred. But they do not extinguish the possibility of prosecution, which is why they are referred as conditional drop (classement sous condition). A particular form of conditional drop is mediation. It is decided by the public prosecutor, but it must be carried out by a mediator, which may be either a natural or legal person authorised for this purpose, with suitable guarantees of the necessary qualities of competence, independence and impartiality. The mediation procedure must be accepted in writing by the parties, who may be assisted by a lawyer (their agreement having the same legal status as a settlement). The final undertakings of the parties (apologies, compensation, commitment to respect a legal obligation) are also drawn up in writing. Within six months, the mediator sends a report to the public prosecutor who may close the case once mediation is successful, although the CCP does not oblige him to do so. If mediation fails, the public prosecutor may initiate a prosecution. The conditional suspension (‘composition pénale’) is a procedure applicable to misdemeanours (and connected petty offences) for which the main penalty is a fine or prison sentence not exceeding five years. It allows the prosecutor, if the suspect admits having committed the offence, to propose one or more measures to comply with.98 If the person agrees to the proposal for conditional suspension, it is sent to the President of the tribunal (Tribunal de Grande Instance: first-tier jurisdiction) for approval. Prosecution by the public prosecutor only becomes barred upon approval and execution of the measures proposed. For all misdemeanours punishable by a maximum of five years’ imprisonment,99 the public prosecutor may, of his own motion or at the request of the party concerned or his lawyer, use the procedure of appearance on prior admission of guilt, in relation to any 97

CCP, Art 40-1. CCP, Art 41-2. 99 This procedure does not apply to felonies or petty offences. As far as misdemeanours are concerned, it does not apply notably to minors, manslaughter or offences related to the press. 98

252 France person summoned to this end or brought before him, where this person admits the matters of which he is accused. An order by which the president of the district court (or the judge appointed by him/her) approves the penalties proposed and states as its reasons firstly that the person concerned, in the presence of his lawyer, has admitted the offences charged, and secondly that these penalties are justified in relation to the circumstances of the offence and the character of its perpetrator. The order has the effect of conviction judgment. It is immediately enforceable. In all cases, it may be subject to appeal by the convicted person. The public prosecutor may also lodge an across-appeal under the same conditions. Failing this, the order counts as res judicata and bars further prosecutions. 4. Reopening of the Case Closed on Different Grounds Where the public prosecutor chooses the procedural track of conditional dropping, the decision whether to prosecute or not is still on hold. This means that the execution of the measure required by the public prosecutor within the framework of such proceedings does not bar future prosecution. In other words, the decision of the public prosecutor to drop a case (whether under conditions to be complied with by the person or not)100 does not ‘close’ the case. Thus, subsequent prosecution does not correspond to reopening of the case and is not subject to specific limitations (such as the presence of new evidence, etc). On the contrary, where the prosecutor has exercised ‘quasi-jurisdictional’ powers, either in the framework of conditional suspension or preliminary guilty plea procedure, future prosecution are barred, provided that as far as the conditional suspension is concerned, the measure has been implemented successfully. Where the investigating judge, given the insufficiency of the evidence, issues a closing order ruling that there is no cause to prosecute, the case may be reopened where new evidence comes to light, ie witness statements, evidence and official reports which could not be examined by the investigating judge, and are nevertheless liable to reinforce the charges which were found to be too weak, or to place the facts alleged in a new light that could lead to the discovery of the truth. It is for the public prosecutor alone to decide whether there is a case for the reopening of the investigation on new charges.101 However, even though the victim may not seise directly the trial jurisdiction by summoning the person under judicial examination concerned by the closing order,102 he/she may summon any other persons, which were not subject to such measure, nor assisted witness or named in the prior submissions of the public prosecutor103 or the complaint of the victim with civil party petition.104 5. Committing to Trial and Presenting the Case in Court In a judicial investigation, after notifying the parties and their lawyers and sending the case file to the public prosecutor for observations, the investigating judge must issue a closing 100

Cass crim 21 June 2011, to be published no 11-80003. Similar closing order based on time limits, amnesty or any other legal causes that bar prosecution have the authority of res judicata. The case may not be reopened on any ground. 102 Cass crim 24 April 1961, Bull crim no 73. 103 Cass crim 12 November 2008, Bull crim no 227. 104 Cass crim 14 June 1994, Bull crim no 235. 101

Evidence 253 order. He/she may either issue a closing order ruling that there is no cause to prosecute (ordonnance de non-lieu), referring the case to the competent court (ordonnance de renvoi) or, in the case of a felony (crime), an indictment before the assize court (Cour d’assises). The order to transfer the case to the competent court will cure any previous procedural ground for nullification. In any other case, the public prosecutor is responsible, concurrently with the victim (who may summon directly the offender before the trial jurisdiction), of committing the case to trial. The public prosecutor may refer directly the case by way of summons (citation directe, CCP, Articles 390 and 550), notice in case of voluntary appearance before the Court (CCP, Article 389), summons by a police officer or by official record (CCP, Article 394), immediate appearance (CCP, Article 388). Once the trial jurisdiction is seised, the public prosecutor is responsible for requesting that the law be enforced by the trial (CCP, Article 31). This competence is exclusive and mandatory.105 No other authority may present the case in court, which may not rule in his/ her absence, without having heard his/her submissions. The public prosecutor is bound to make written submissions in conformity with the instructions given by its hierarchical superiors but remains free to make such oral submissions, as it believes to be in the interest of justice.106 As a rule, the public prosecution service is represented before each criminal court. It takes part in hearings of courts of trial; every decision is read in its presence and it ensures the enforcement of court decisions (he is notably in charge of the execution of penalties).

D. EVIDENCE

The collection and gathering of evidence, aim of the pre-trial phase, is governed by several guiding principles, which combine respect of fundamental rights and search of the truth: presumption of innocence, fairness, adversarial process and the rule of evidence by all means.

1. Status of Illegally or Improperly Obtained Evidence It is commonly stressed by French scholars that admissibility of evidence is poorly regulated by the CCP.107 Most of the rules on evidence are based on case law, either national or European.108 The CCP addresses the issue of illegally or improperly obtained evidence through nullities. Evidence tainted by nullity must be withdrawn from the case file. Reports of offences following unfair police provocation109 are not admissible and irregular statements and reports are similarly treated. However, limitations to the admission of evidence are confined to the public authorities. Indeed, the Cour de cassation considers that criminal judges should not be allowed to discount evidence produced by the private parties for

105 As far as the victim is concerned, where having the status of civil party, he/she must be heard and exercise his/her ‘rights of defence’ in trial, but he/she is not vested in any way with the protection of public interest. 106 La parole est serve, mais la plume est libre. 107 Ambroise-Castérot, Bonfils (n 89) 190f. 108 Desportes, Lazerges-Cousquer (n 15) 361f. 109 Ie incitement to commit an offence.

254 France the sole reason that it may have been obtained illegally or unfairly.110 Their task is merely to assess its probative value. The justification for this exception is based on the fact that actions carried out by private parties are not part of the investigation. Consequently, they are exempt from the rule on nullities. Hence, although evidence may be collected by all means, where collected by public authorities, they may only be admitted if they have been obtained legally and without interfering with the rights of the defence. However, paradoxically, the application of this general principle is two-edged sword. It may restrict considerably the effect of nullities and irregularities. Evidence affected by substantive nullities111 may be admitted if the irregularity does not harm the interests of the concerned party (absence de grief ).112 Notably, where defence rights haven’t been affected, nullities may not be an obstacle to taking the evidence into account. It is the case where the irregularity is considered minor and a procedural remedy has been provided for to the party affected, where the irregularity has had no consequence or where the right to invoke nullities has been implicitly waived. Similarly, the general requirement according which the court may only act upon evidence that has been debated adversarially may be used to weaken the requirements of collection of evidence. Where debated adversarially, evidence tainted by irregularities may not be excluded provided that they do not constitute the sole basis of the proceedings. However the Cour de cassation has progressively recognised that some irregularities are harmful by nature (especially within the context of police custody: exceeding the maximum duration of deprivation of liberty, delay to notify rights, etc) and that public order nullities (nullité d’ordre public) do not require establishing the detrimental nature of the irregularity. Besides, consequences of the nullities may be limited to the strict minimum, notably because of the theory of the ‘necessary basis’ (support nécessaire) developed by the Cour de cassation: only measures and later proceedings that are necessarily based on the measure vitiated by nullities must be annulled as well. Where the investigating chamber is seised of an annulment application by the investigating judge, the public prosecutor or the defendant (person under judicial examination or assisted witness), all grounds for the annulment must be then submitted to it. Failing such submission, the parties are not admitted to raise them except where they could not have known about them. In any case, the indictment order wipes out any procedural errors. 2. Admissibility of Written Reports Official records and reports establishing the existence of felonies and misdemeanours only have the value of simple information, provided that they are formally regular, their drafter 110 Cass crim 28 April 1987, Bull crim no 173. More recently: Cass crim 27 January 2010, Bull crim no 16 (concerning documents stolen by an employee). Where there is a breach of professional secrecy, the evidence is admissible provided that the breach is necessary to the defence and proportionate to the rights of the parties (Cass crim 24 April 2007, Bull crim no 108). 111 French procedural law distinguishes textual nullities, ie nullities explicitly provided for in the CCP (see for instance, CCP, Art 59(2) concerning formalities prescribed for search and seizure; CCP, Art 80-1 concerning the late placement under judicial examination; CCP, Art 100-7 concerning the interception of telecommunication of a defence lawyer), substantial nullities, ie nullities decided in a case by case basis, codified by CCP, Art 171, which states that ‘There is a nullity when the breach of an essential formality provided for by a provision of the present Code or by any other rule of criminal procedure has harmed the interests of the party it concerns’ and public order nullities (which concerns irregularities affecting an important public interest). 112 However, case law often considers that textual nullities are subject to the same requirement.

The Rights of the Suspect/Defendant During Investigation and Prosecution 255 acted in the performance of their duties and reported what they personally saw, heard or found on a subject matter within their jurisdiction. However in many cases, proof of the contrary may only be brought in writing or through witnesses. It is the case for the establishment of petty offences by judicial police officers and most of the ‘technical’ offences foreseen outside the Penal Code (Commercial code, Consumer Code, Customs code, Insurance Code and Fiscal procedure code) where civil servants are entrusted by law with the power to establish misdemeanours by official records or reports. In a few cases, official records may constitute proof until challenged to be forgeries. It is notably the case of records drafted by two customs officers. Every official record of an interrogation or a hearing must contain the questions, which were answered therein.

3. Status of Evidence Obtained in other Member States of the EU The status of evidence obtained in foreign legal systems, including other Member States of the EU, varies depending on whether evidence was collected within the framework of international cooperation, upon request of a French judicial authority, or otherwise. Where evidence was obtained on the basis of a letters rogatory, its legitimacy may only be assessed by the jurisdictions of the requested state.113 Outside that framework, illegally or improperly obtained evidence may be assessed by French jurisdictions and rules on nullities mentioned above may apply.114 In a nutshell, an international convention or treaty binding on the French State shields the application of the rules on evidence obtained through means deemed illegal or improper.115

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

The rights of the defendant during the pre-trial phase have been significantly augmented since 2011, with the reform of police custody. However, the improvement concerns mostly the right to be informed. The substance and effectiveness of the concrete rights of the suspect remain subject to important limitations. Nevertheless, progress on participation of the defence lawyer is likely to modify the balance on which the reform is built as well as the forthcoming input from Strasbourg and Brussels.116

113 Cass crim 24 June 1997, Bull crim no 252. This case law is subject to sharp criticism (J Lelieur, ‘L’application de la reconnaissance mutuelle à l’obtention transnationale de preuves pénales dans l’Union européenne: une chance pour un droit probatoire français en crise?’ (2011) Revue de Science criminelle et de droit pénal comparé 1f). 114 Cass crim 7 February 2007, Bull crim no 37. Evidence obtained, on their own initiatives by US authorities, could not be used as evidence in French proceedings because they were collected unfairly. 115 However the recent ruling of the ECtHR in Stojkovic v France and Belgium (App no 25303/08, 27 October 2011) might challenge this (too) general solution. According to the Court, French authorities failed to ensure fairness of proceedings under their supervision in connection with an international letters rogatory issued by a French judge and executed in Belgium, where the defendant was questioned but, in accordance with Belgian procedural rules, was not assisted by a defence lawyer. 116 E Lamaze, ‘Droit d’accès à un avocat: quel élargissement?’ (2011) La Gazette du Palais 10f.

256 France 1. Presumption of Innocence As a ‘founding principle’ of the criminal procedure of democratic states,117 the presumption of innocence runs through the entire criminal procedure. Its protection is based on several sources from constitutional (Article 9, Declaration of Human and Civic Rights) to supranational (Article 11, Universal Declaration; Article 6, ECHR; Article 47, EU Charter) and national provisions (CCP, Preliminary Article118 and Article 9-1, Civil Code119). Yet, it has been, until very recently, at the heart of the debate on police custody because of the insufficient protection of the right to silence, as stressed by the decisions of the Constitutional Council and the ECtHR, mentioned below. Its protection challenges any criminal procedure, as Strasbourg case law and the French criminal pre-trial procedure illustrate periodically.

2. The Right of the Defence to Undertake Investigative Measures/Acts in their own Right The CCP does not provide for such a right. On the contrary, the general philosophy of the French criminal procedure is rather opposed to its exercise and development. Indeed, the defence lawyer could even incur criminal liability: interrogating a witness might constitute the offence of subornation of witness (CC, Article 434-15). However, the defence lawyer is no longer a mere ‘litigator’, and the perception of his role has been changing since the introduction in 1993 (see further below, section E6) of the right to request authorities to carry out investigative measures and some practitioners even anticipate radical changes if the reform proposed in 2010120 were to be adopted.121 Without going so far, practice shows, on the one hand, an increasing use of private expertise, apparently welcomed by case law122 even though they raise very difficult issues, but, on the other hand, a very limited development of private forms of investigations. 3. The Right to Legal Assistance The Preliminary article of the CCP provides for this right (‘every person suspected or prosecuted … has the right to be legally defended’), which encompasses the right to be assisted by a lawyer of his/her own choice or to request that a lawyer be appointed to him/her, and

117

Desportes, Lazerges-Cousquer (n 15) 121. Every person suspected or prosecuted is presumed innocent as long as his/her guilt has not been established. Infringements are proscribed, compensated and punished by the law. 119 Where, before any sentence, a person is publicly shown as being guilty of facts under inquiries or preliminary investigation, the court, even by interim order and without prejudice to compensation for injury suffered, may prescribe any measures in order to put an end to the infringement of the presumption of innocence, at the expense of the natural or legal person liable for that infringement. 120 ‘Avant projet du futur Code de Procédure Pénal’ (5). 121 F Saint-Pierre, ‘Investigations privées en défense: questions de méthode et difficultés pratiques’ (2009) AJ Pénal, 433f. 122 Cass crim 6 September 2006, Bull crim no 213: in this decision the Cour de cassation has considered that judges may not exclude such expertise from the debate. In 2009, the Court decided that judges might not refuse to hear a private expert as a witness either (Cass crim 3 June 2009, Bull crim no 109). 118

The Rights of the Suspect/Defendant During Investigation and Prosecution 257 the right, where eligible, to legal aid. The right to legal assistance also applies to victims and assisted witnesses from the investigation phase. Defendants and victims must be informed of those rights under penalty of nullities. However, and despite its strengthening with the reform of police custody, the right to legal assistance remains rather limited during the police investigation phase and varies considerably depending on the investigation measure concerned. For instance, the presence of the defence lawyer is not required during a search (see also further below, section E14). On the contrary, it is mandatory during police custody, unless the person explicitly waives this right, and, during the course of a judicial investigation, at hearings, during questioning and confrontations. 4. The Right to Have Another Person Informed of One’s Arrest The CCP foresees the right to have a person informed of one’s arrest within the context of police custody. A person placed in police custody has the right to have certain persons informed of the measure by telephone. Those persons are: a person with whom he/she resides habitually, one of his/her direct relatives, one of his/her brothers or sisters, his/ her employer or, if he/she is a foreigner consular authorities. The request of the person to exercise this right must be granted within the three hours following the request (except in insurmountable circumstances). The police officer may refuse on the grounds of the needs of the inquiry. In this case, he/she reports the request to the prosecutor, who decides whether to grant it or not.

5. The Right to Submit Written Statements Submission of written statements is not regulated as such as a right by the CCP. However, rules on evidence are based on a general principle according which evidence may be established by all means (CCP, Article 427). On this basis, private parties are untitled to submit written statements. Besides, recently, the reform of police custody has inserted a specific provision allowing the defence lawyer to present written statements at the end of the measure.

6. The Right to ask for a Special Act of Investigation Until 1993, there was no legal provision binding the investigating judge to grant requests for investigation made by the person under judicial examination, nor even to respond to such a request. The reforms of 4 January 1993, 24 August 1993 and 15 June 2000 have strengthened the rights of the parties in the search for evidence. In the course of the investigation, the parties may file with the investigating judge a written and reasoned application in order to be heard or interrogated, to hear a witness, for a confrontation or an inspection of the scene of the offence, to order one of them to disclose an element useful for the investigation, or for any other step to be taken which seems to them necessary for the discovery of the truth. The investigating judge must decide on the application within one month. Where the investigating judge fails to do so, the party may apply directly to the president of the second-tier investigating jurisdiction. Consequently, the private parties (defendant and victim) and the public prosecutor are granted with the same rights.

258 France 7. The Right to be Informed that his/her Statements may be Used as Evidence The right to remain silent and its notification constitute, at the moment, the maximum standard provided for by the CCP. And the obstacles placed in the path of its full recognition, exemplified by the final wording of the right to silence in the CCP (see further below, section E15), underline those still left to be overcome. Besides, it remains doubtful to infer such a right from the final provision of the preliminary article, providing that no conviction may be solely based on statements made without the defence lawyer being present. The effect of this provision is most likely to transfer to the defence lawyer the responsibility to inform the person under investigation or judicial examination of all aspects of his/her right to remain silent, including the fact that his/her statements may be used as evidence. 8. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement The right to require a precise wording of one’s statements is not provided for as such by the CCP. However, rules governing formal requirements of the drafting of official records may be interpreted as a functional equivalent. Indeed, statements of persons heard by the police or the investigating judge must be recorded officially, and the CCP requires that the persons read this record through themselves and that their observations be recorded as well. The refusal to sign the police record must be noted in the record, and the person whose statement is recorded must approve words crossed out and references. Without this approval, such statements are deemed to be void. During a judicial investigation, similar requirements are foreseen. They apply to questioning and hearings, conducted by the investigating judge, of the person under judicial examination, the assisted witness and the civil party. The right to full and accurate recording of the statements is deduced from provisions of the CCP providing for mandatory audio-visual recording. It is the case of questioning and confrontations before the investigating judge and of police custody where the offence is a felony, with the exception of organised crime offences. However, audio-visual recording may not take place if it is not technically feasible. Otherwise absence of such recording is considered by case law to be an irregularity that harms per se the interests of the person, even though his/her defence lawyer was present and he/she had decided to make statements without being questioned.123 It should be noted that audio-visual recording is not conceived as a mere right of the defence and the person heard may not waive it. 9. The Right to Refer to Documents during Interview and the Right to Consult Relevant Legal Acts The CCP does not provide for such rights. However the presence of the defence lawyer during questioning before the investigating judge and from now on during police custody may serve as a means of indirect application. However, to some extent, the powers of the authority in charge of the questioning (the judicial police officer during police custody or

123

Cass crim 3 March 2010, Bull crim no 47.

The Rights of the Suspect/Defendant During Investigation and Prosecution 259 the investigating judge during a judicial investigation) may limit the exercise of such right (see above, sections B2 and B3).

10. The Right to be Informed about Possibilities of Reconciliation with the Victim Possibilities of reconciliation with the victim are only addressed by the CCP within the framework of the powers of the public prosecutor to put in train, under certain circumstances mentioned above (see above, section C3), mediation. Hence it is not a right of the defence, but a power in the hand of the public prosecutor.

11. The Right to be Informed about the Place of Detention The place of detention is not included within the list of rights that the investigating judge must notify the person under judicial examination before ordering its placement in pretrial detention.

12. The Right to be Informed of the Charges The preliminary article of the CCP provides for this right: ‘every person suspected or prosecuted has the right to be informed of charges brought against him/her’. Throughout the CCP, the right to be informed about the charges is specified by several provisions, whose wordings differ depending on the stage of the procedure they govern. During the police investigation, when the police officer decides to place a person in police custody, he/she must be informed ‘immediately’ (CCP, Article 63-1) of the measure (its length and possible renewal), as well as the nature and the presumed date of the offence he/she is suspected of. According to case law, any delay in the implementation of this right, unless there are insurmountable circumstances, harms per se the interests of the person concerned;124 as a result, the measure of police custody is void as well as any subsequent act or measure for which it constitutes the necessary basis. At the end of a police investigation concerning misdemeanours, the prosecutor must inform the person brought before him/ her of the charges of the matters of which he is accused. In case of judicial investigation, the CCP requires that the information (all the charges and their legal qualification) be communicated to the person at the beginning of the first hearing that may lead to a decision to place the person under judicial examination. A record of these elements of information is made in the official record of the interview. Besides changes in the qualification of the charges (from a misdemeanour to a felony) must be first communicated to the defence lawyer for observations and notify to the defendant. The information of the assisted witness is less precise: the investigating judge informs him/ her about the initial submission of the public prosecutor, or as the case may be, of the complaint or the denunciation.

124

Cass crim 30 April 1996, Bull crim no 182.

260 France Besides summons that directly seizes the trial jurisdiction must state, under pain of nullity, the facts prosecuted and mention the legal provision that punishes them.

13. Access to the File During Pre-Trial Proceedings Access to the file varies, depending on the type of investigation.125 Police investigations remain governed by secrecy, as stated by CCP, Article 11, and although improvements are being made progressively under the influence of the Strasbourg case law, they do not amount to the rights granted to the defence lawyer within the framework of a judicial investigation. In any case, access to the case file is always limited to the defence lawyer. There is no right to a direct access to the file during the pre-trial proceedings. Suspects and victims may only access to the file through the intermediary of their defence lawyer, which prevent non-assisted persons from having access to the content of their file.126 During police custody, the defence lawyer has access to any information or documents which concern the suspect directly: the nature of the offence and the presumed date of commission, records on notification of police custody and the rights attached to it, medical certificate, as well as all records of hearings (even within the framework of a previous police custody or of a non-coercive hearing) of the suspect. But the defence lawyer has no access at this stage to the other documents (pieces) of the file and he cannot copy the documents he has access to but only take notes. Despite criticism and scepticism due to the legitimacy of such restriction vis-à-vis European standards, it has been validated by the Constitutional Council, on the basis of a restrictive approach to the scope of the rights to defence during the police investigation phase.127 In case of a judicial investigation, defence lawyers of the private parties (the person under judicial examination and the civil party) are entitled to the communication of the file. The case file is put at their disposal four working days at the latest before each interview of the person under judicial examination or each hearing of the civil party. After the first appearance of the person under judicial examination or the first hearing of the civil party, the case file is also put at the permanent disposal of their lawyers, who may request to be provided at their expense with a copy of any or all of the documents and instruments of the case file. A reproduction of the copies obtained may be transmitted to their client who must state beforehand in writing that he/she is aware that passing them on to a third party is punished by a fine. The defence lawyer must notify the investigating judge of the list of documents or procedural acts, copies of which he wishes to give to his client. The investigating judge has five working days from receiving the application to refuse to deliver some or all of these copies with a specially reasoned order in respect of the risks of pressure on the victims, the person under judicial examination, their lawyers, the witnesses, the police officers, the experts or any other person taking part in the proceedings. Where the judge fails to do so, the lawyer may give his client the copy of the documents concerned.

125

C Ribeyre, La communciation du dossier pénal (Aix-Marseille, PUAM 2007). Cass crim 4 January 1995, Bull crim no 1; Cass crim 26 June 1995, Bull crim no 235. 127 Cons const 18 November 2011, no 2011-191/194/1195/196/197 QPC; H Matsopoulou, ‘Les dispositions de la loi du 14 avril 2001 sur la garde à vue déclarées conformes à la Constitution’ (2011) Recueil Dalloz 3034f. 126

The Rights of the Suspect/Defendant During Investigation and Prosecution 261 14. The Right to Assistance for the Suspect during the Pre-Trial Procedure (Translator, Defence Lawyer) (a) Assistance of a Translator The assistance of a translator was, until recently, only mentioned by provisions governing judicial investigation, and foreseen as a faculty for the investigating judge to call upon.128 During the police investigation, the assistance of a translator is not a right as such and the translation may be performed by the police officer him/herself.129 With the entry into force of the reform on police custody, the CCP specifies the requirement to notify the rights of the suspect at the beginning of police custody in a language that the person understands. If the person does not understand French, the rights must be notified by a translator, and where the case may be, after a form has been handed over to the person for his/her immediate information. (b) Assistance of a Defence Lawyer Assistance of a defence lawyer encompasses several rights from the liberty to choose whether to be assisted or not to the confidentiality of the communication with one’s defence lawyer. Though in principle the right to assistance by a defence lawyer may be waived, it is however mandatory during the pre-trial phase where the person is a minor and at the hearing on pre-trial detention. The right to choose his/her lawyer is subject to exceptions: where the person has previously requested that a lawyer be appointed to him/her and where the investigations concern terrorism. In this latter case, the reform of police custody inserted by CCP, Article 706-88-1, which states that upon decision of the liberty and custody judge or the investigating judge the person will be assisted by a lawyer specially inscribed on a list established by the Bar and appointed by the Bâtonnier of the Bar.130 During the police investigation, the assistance of a lawyer is triggered by placement in police custody. From the beginning of police custody, the person may ask to be assisted by a lawyer of his/her own choice. He/she must have been previously informed of his/her right to do so or to request that a lawyer be appointed to him/her.131 The lawyer is then informed by a police officer of the nature and the presumed date of the commission of the offence the suspect is suspected of.132 The defence lawyer has immediate access to part of the file (see above, section E13). He may confer for 30 minutes with his client as soon as he arrives at the police station, even though a hearing may be in progress, and at the beginning of the renewal of the measure. The confidentiality of the interview must be ensured. The suspect may ask that his/her lawyer be present to questioning and confrontation. In

128 In this case, the translator must sign each page of the official records and approve all words crossed and references it may contain. 129 Cass crim 27 November 2001, Bull crim no 245. 130 Very recently, the Constitutional Council confirmed the validity of this provision but required from the Legislator to specify itself its concrete modalities (Ruling no 2012-222 QPC, 17 February 2012). 131 The persons informed of the arrest at the request of the suspect may appoint a defence lawyer. In this case, the suspect must confirm the appointment. 132 The police officer is subject to an obligation of means, not of result, which fulfilment is strictly supervised by the Cour de cassation (Cass crim 10 May 2001, Bull crim no 118).

262 France that case, none of them may be carried out for the first two hours without the lawyer being present. During questioning, the role of the defence lawyer remains unclear. He may take notes and ask questions but the CCP doesn’t indicate to whom.133 At the end of the measure of police custody or a confrontation, the defence lawyer may present written statements, have the questions that have been denied by the police officer noted and send his/her observations to the prosecutor. The right to assistance to a defence lawyer may be postponed if it is essential, for compelling reasons (in order to prevent harm or to ensure the execution of urgent investigative measure). The postponement is limited to offences punishable of at least five years and may be decided upon decision of the prosecutor for a duration of 12 hours, renewable once on the authorisation of the liberty and custody judge.134 As far as the victim is concerned, he/she must be informed by the police officer of his/her right to a defence lawyer (or to have one appointed to him/her) if he/she were to file a civil party petition (CCP, Articles 53-1 and 75). He/she has the right to be assisted by a defence lawyer in case of confrontation (CCP, Article 63-3) during a police investigation. During a judicial investigation, the CCP provides for a broad right to be assisted by a defence lawyer. Where the investigating judge summons a person or during the first questioning or hearing, the right to be assisted by a lawyer must be notified. The defence lawyer has a broad and exclusive access to the case file, he/she must be present at hearings and confrontations and may ask questions (possibly subject to the refusal of the investigating judge, which is recorded on the official record). Finally, the CCP guarantees the requirement of confidentiality, notably with the possibility to confer with the defence lawyer during police custody, the first questioning before the investigating judge and the comprehensive protection due to all forms of communication with the defence lawyer.

15. The Right to Silence During the Pre-Trial Procedure The Law on police custody of 2011 only very recently inserted this right in the CCP.135 Among the rights granted to a person in police custody, CCP, Article 63-1 foresees the right to make statements, to answer the questions asked of him/her, or to remain silent. This wording, undermining the importance of the right to remain silent seems to indicate the persistence of the importance of confession. Its limited and discrete insertion in the provision concerning police custody underlines its absence in the preliminary article where it

133 A circular indicates that the defence lawyer may not address directly the suspect outside the special interview with his/her client. But the compatibility of this administrative interpretation with the case law of the ECtHR seems doubtful; cf Dayanan v Turkey App no 7377/03 (ECtHR, 13 October 2009); Vergès (n 7) 184. 134 The postponement may be extended until the 48th hour in case of investigations into organised crime offences (CCP, Art 708-88), and until the 72nd hour in cases of kidnapping or terrorism (CCP, Arts 706-88 and 706-73). In those cases, it is the entire right of legal assistance that is denied: presence of the lawyer, right to confer and access to the file. 135 In fact, the right to remain silent had been introduced in the CCP in 2000 (law no 2000-516). After a first rewording of the provision (Law no 2002-307 substituted the formula ‘The person has the right not to answer questions asked by police officers’ with ‘The person has the right to make statements, to answer questions or to remain silent’, which is the present and questionable wording in the CCP), the change in the political majority led eventually to the removal of the contested provision by Law no 2003-239 of 18 March 2003 and consequently to the disappearance of the obligation to notify such right.

The Rights of the Suspect/Defendant During Investigation and Prosecution 263 belongs. However, this right may be deduced from the redrafting of the preliminary article where it states that no conviction may be based solely on the statements made by a person without his/her lawyer being present. The Cour de cassation had anticipated the reform, considering that such a conviction would represent a breach of his/her fundamental right not to contribute to his/her own incrimination without his/her lawyer being present.136 Outside the framework of police custody, any witness summoned to be heard in the course of the execution of a letters rogatory is obliged to swear an oath and to make a statement (CCP, Article 153). As far as the right not to incriminate oneself is concerned, it may be considerably challenged by the far-reaching powers of customs and tax officers to request documents as shown in the ruling in Funke v France.137

16. Rights of Legal Persons in Criminal Proceedings The CC reform, which introduced in France the principle of criminal liability of legal persons led also to the insertion of specific rules on legal persons in the Code of Criminal Procedure. However apart from the representation of the legal person prosecuted by its representative138 and the possibility (not the duty) for the President of the Court upon application of the representative, prosecuted as a natural person, as the perpetrator or accomplice of the legal person, to appoint a judicial proxy, no specific rights are granted to the legal person. In principle, all rights and procedural safeguards granted to the natural persons are also granted to legal person (CCP, Article 706-41), unless inapplicable to the features of a legal person as such.

136

Cass crim 11 May 2011, Bull crim no 97. Funke v France App no 10828/84 (ECtHR, 25 February 1993). 138 CCP, Art 706-44 states that the representative of the legal person prosecuted may not be subjected, in this capacity, to any coercive measure other than those applicable to witnesses. 137

7 Germany THOMAS WEIGEND1

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

T

HE CRIMINAL PROCESS is divided into three phases: the investigation conducted by the public prosecutor, an intermediate phase which takes place after the prosecutor has filed a formal accusation with the court, and the trial phase. If the defendant has been convicted and sentenced, the judgment will be enforced. One can regard this as a further (fourth) phase of the criminal process, but enforcement of sentences—although partly regulated in the Code of Criminal Procedure—is mostly seen as separate from the criminal process proper. The investigation starts when the prosecutor or the police become aware of a suspicion that a criminal offence has been committed. In most cases, it is the victim or a witness that alerts the police or the prosecutor of a suspicion. The prosecutor is then obliged to investigate the suspicion.2 The purpose of the investigation is to establish the facts, to the extent that the prosecutor can decide whether sufficient grounds exist for filing an accusation, that is, whether there is a reasonable prospect that the suspect will be convicted in court. If the prosecutor comes to the conclusion that sufficient grounds exist, he files an accusation with the trial court along with the dossier that contains the documents and results of the investigation. In the intermediate phase that follows, the trial court—deciding without lay judges— reviews the dossier and determines whether it is likely that, based on the evidence gathered in the course of the investigation, the trial will lead to the conviction of the accused.3 In this phase, the court also examines whether the conduct of the accused, if proved, meets the definition of the offence charged by the prosecutor or of any other offence. In the intermediate phase, it is permissible but in fact very rare for the court to take evidence.4 In the great majority of cases, courts admit the accusation for trial.5 In the trial phase, the court—and more particularly the presiding judge of the court—is responsible for gathering and presenting the evidence necessary for arriving at a judgment. 1

The author thanks Ms Vanessa Carduck for her valuable support. § 160, s 1 Code of Criminal Procedure (CCP). 3 §§ 199 and 203 CCP. 4 § 202 CCP. 5 In 2010, only 1% of formal accusations were rejected by courts of first instance; see Statistisches Bundesamt, Rechtspflege, Strafgerichte 2010 (Statistisches Bundesamt edn, 2011) 28, 66. 2

General Aspects of the Procedure 265 The prosecution and the defence have extensive participation rights, but it is the presiding judge who must make certain that the evidence is sufficient for finding the truth, and who primarily conducts interrogations.6

2. Sources of Criminal Procedural Law The main source of criminal procedure law is the Code of Criminal Procedure.7 The CCP originally stems from 1877 but has since been amended many times. In spite of these changes, the general inquisitorial structure of the criminal process has remained in place. The Code of Court Organisation,8 which was likewise introduced in 1877, regulates specific issues of court procedure for both civil and criminal trials. The CCO determines the jurisdiction of various courts9 as well as the publicity of trials10 and the authority of presiding judges to maintain order in the courtroom.11 The German constitution, the Basic Law of 1949,12 contains only a few articles directly relating to the criminal process. Article 97 BL provides for the independence of judges. Article 101, s 1 BL states that there can be no exceptional courts and that any matter must be decided by a judge predetermined by law, excluding any discretion of assigning individual cases to particular judges. According to Article 103, s 1 BL, everybody has a right to be heard in court, and Article 103, s 3 BL provides that no one shall be punished twice for the same offence. Article 104 BL establishes protective rules for deprivations of liberty by agents of the state, including the rules that any deprivation of liberty must have been authorised by an act of parliament, and that one can be held in custody without a judicial decision only till the end of the day following arrest. Beyond these specific rules, the constitution generally declares that the Federal Republic of Germany is a state based on the rule of law (Rechtsstaat).13 Several rules concerning the criminal process are connected with the Rechtsstaat principle, for example the defendant’s right to be tried by an impartial and unbiased court, his right to a fair trial, and his right to an effective defence.14 The constitution contains, moreover, an extensive list of fundamental civil rights (Grundrechte) some of which have great relevance for the criminal process. Most importantly, Article 1, s 1 BL declares that the dignity of the person is inviolable. Respect for the dignity of the person is, for example, deemed to preclude the

6 See § 244, s 2 CCP: ‘In order to ascertain the truth, the court shall extend, ex officio, the taking of evidence to all facts and pieces of evidence that are relevant to the decision.’ 7 Strafprozessordnung (CCP). The latest official promulgation of the CCP is of 7 April 1987 (I Bundesgesetzblatt– BGBl—1987, 1074). 8 Gerichtsverfassungsgesetz (Code of Court Organisation, hereinafter CCO). The latest official promulgation of the CCO is of 9 May 1975 (I BGBl 1975, 1077). 9 For criminal courts, see especially §§ 24-26, 28, 73-78 CCO. 10 §§ 169-74 CCO. 11 §§ 175-83 CCO. 12 Grundgesetz (Basic Law, BL) of 23 May 1949 (I BGBl 1949, 1). 13 See Art 20, s 3 BL: ‘Legislation shall comply with the constitutional order, the executive and judicative powers shall comply with laws and statutes.’ 14 For an overview of consequences of the Rechtsstaat principle for the criminal process, see B Grzeszick, ‘Art 20 (Art 20 VII und die allgemeine Rechtsstaatlichkeit)’ in T Maunz and G Dürig (eds), Grundgesetz-Kommentar (München, Beck 2012) marginal numbers 142-50.

266 Germany state from exerting any pressure on a person to incriminate himself,15 and human dignity also requires agents of the state to respect every individual’s core sphere of privacy.16 Other relevant basic rights protected by the constitution are the secrecy of the mail and of telecommunication (Article 10 BL), the inviolability of the home (Article 13 BL), and the general freedom to develop one’s personality (Article 2, s 1 BL), which is understood to grant individuals a general freedom to act as they please unless limited by legislation that respects the principle of proportionality. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has had the force of Federal law in Germany since 1952.17 Within Germany’s domestic system, the ECHR is of lower rank than the constitution.18 German courts take into consideration the jurisprudence of the European Court of Human Rights (ECtHR) not only when applying the ECHR but also as an aid in interpreting German constitutional and other law.19

3. Bodies Carrying out Investigation and Prosecution According to § 160, s 1 CCP, the public prosecutor’s office (Staatsanwaltschaft)20 is charged with investigating the matter whenever it learns of the suspicion that an offence has been committed. The prosecutor is understood as a neutral, objective official with a quasijudicial role of fact-finding; it is his duty to find the facts regardless of whether or not they support the initial suspicion. In fact, § 160, s 2 CCP declares that the prosecutor shall investigate not only circumstances indicating the criminal responsibility of a suspect but also those possibly exculpating him.21 At the conclusion of the investigation, the prosecutor decides whether to prosecute a suspect. Even if the prosecutor has filed an accusation, he retains, at least in theory, the neutral stance of an officer of the law.22 For example, the prosecutor can, at the end of the trial, ask the court to acquit the defendant, and he may file an appeal on behalf of a convicted defendant.23 Although the prosecutor is in charge of the investigation, most acts of investigation, eg, interviewing witnesses and collecting real evidence and documents, are in fact carried

15 Bundesverfassungsgericht (Federal Constitutional Court) in 38 Entscheidungen des Bundesverfassungsgerichts (Decisions of the German Federal Constitutional Court; hereinafter: BVerfGE) 105, 113 (1974); 55 BVerfGE 144, 150 (1980); H Dreier, ‘Art 1 I’ in H Dreier (ed), Grundgesetz-Kommentar, 2nd edn (Tübingen, Mohr Siebeck, 2004) marginal number 40; M Herdegen, ‘Art 1 Abs 1’ in T Maunz and G Dürig (eds), Grundgesetz-Kommentar (Munich, Beck, 2012) marginal number 86. For a differing view, see C Starck, ‘Art 1 Abs 1’ in H von Mangoldt, F Klein and C Starck (eds), GG Kommentar, 6th edn (Munich, Vahlen, 2010) marginal number 56. 16 80 BVerfGE 367 (1989) (diary as evidence); 109 BVerfGE 279 (2003) (secret surveillance of private home). 17 II BGBl 1952, 685. A new German translation of the ECHR has been published in II BGBl 2010, 1198. 18 R Esser, ‘Einführung’ in E Löwe, W Rosenberg and others (eds), vol 11 ‘EMRK; IPBPR’, Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2012) marginal number 85. 19 See 111 BVerfGE 303 (2004); 128 BVerfGE 326 at 366-72 (2011). 20 Although German law uses the term Staatsanwaltschaft denoting the public prosecutor’s office, in this report I will speak of ‘the public prosecutor’ or ‘the prosecutor’. 21 § 160, s 2 CCP. 22 See generally M Heghmanns, ‘Die prozessuale Rolle der Staatsanwaltschaft’ [2003] Goltdammer’s Archiv für Strafrecht (GA) 433; B Kelker, ‘Die Rolle der Staatsanwaltschaft im Strafverfahren’ (2006) 118 Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 398; C Roxin and B Schünemann, Strafverfahrensrecht: ein Studienbuch, 27th edn (Munich, Beck, 2012) 54. 23 § 296, s 2 CCP.

General Aspects of the Procedure 267 out by police officers.24 The police are obliged by law to follow the instructions of the prosecutor and to perform any acts of investigation on his behalf.25 The police, however, also have limited authority to conduct investigations on their own. They may request information from other agencies, and they may take any measure that is immediately necessary to avert the obscuration of the matter.26 The police interpret this right extensively. In routine matters, they often inform the prosecutor only when they regard the case as cleared, and only then submit their dossier to the prosecutor. The judge of the investigation (Ermittlungsrichter) has a dual function: he is entrusted with controlling any interference with fundamental individual rights in the course of the investigation, and he may be requested by the prosecutor to perform specific acts, eg, interrogations of suspects and witnesses.27 In the latter case, the judge is obliged to carry out the requested act, unless he finds that it is not permitted by law. The judge of the investigation, in the German system, is thus not a proactive investigatory official but takes action only upon request of the prosecutor or, in some instances, of a party affected by an investigatory act.28

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle The public prosecutor is obliged to initiate an investigation whenever there exist sufficient factual grounds (zureichende tatsächliche Anhaltspunkte) to do so.29 In most cases, the victim or a witness informs the prosecutor about the suspicion that a crime has been committed. The prosecutor then needs to determine whether the factual indications are strong enough to justify the initiation of an investigation. This ‘pre-investigation’ can be omitted in clear-cut cases (eg, when a person has been found shot dead), but it may in other cases take some time, for example when a well-known public figure has been accused of criminal wrongdoing. The initial suspicion (Anfangsverdacht) necessary for opening an investigation need not be strong, and it may concern persons as yet unknown.30 There is no formal act marking the beginning of an investigation, except that the prosecutor or the police open a file on the matter. Beyond the assessment necessary for evaluating the strength of evidence possibly giving rise to a suspicion, § 160, s 1 CCP does not confer upon the prosecutor any discretion as to the initiation of an investigation. Whereas the obligation to investigate is unconditional, there is no absolute duty to prosecute cases even where conviction of the suspect would be likely. According to § 170, s 1 CCP, the prosecutor shall file a formal accusation (Anklage) 24 For a detailed discussion of the factual situation and its legal consequences, see H Lilie, ‘Das Verhältnis von Polizei und Staatsanwaltschaft im Ermittlungsverfahren’, 106 ZStW 624 (1994). 25 § 161, s 1, 2nd sentence CCP. 26 § 163, s 1 CCP. 27 § 162, s 1, 1st sentence CCP. See K Nehm, ‘Umfang der Bindung des Ermittlungsrichters an Anträge der Staatsanwaltschaft’ in A Eser and others (eds), Strafverfahrensrecht in Theorie und Praxis: Festschrift für Lutz Meyer-Goßner zum 65: Geburtstag (Munich, Beck, 2001) 277. 28 See § 98, s 2, 2nd sentence CCP (request to review the seizure of an object). 29 § 152, s 2 CCP. 30 Bundesgerichtshof (Federal Court of Justice, BGH), Judgment of 21 April 1988, [1989] Neue Juristische Wochenschrift (NJW) 96; W Beulke, ‘§ 152’ in E Löwe, W Rosenberg and others (eds), vol 5, Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal number 23.

268 Germany whenever the investigation has provided sufficient cause to do so. The question whether ‘sufficient cause’ exists, that is, whether the evidence of guilt is so strong that a conviction can reasonably be expected, requires the prosecutor to make an independent assessment of the evidence.31 It is indeed the main function of the public prosecutor to evaluate the police dossier and to predict the outcome of a trial. The prosecutor may also request the police to supply additional information if necessary for his decision whether to prosecute. In fact, prosecutors reject a large percentage of cases that the police deem ‘cleared’ because they think that the evidence will not be sufficient for convincing the court of the suspect’s guilt.32 With respect to serious offences carrying a statutory minimum sentence of one year’s imprisonment or more (Verbrechen), the prosecutor is obliged to file an accusation if there exists a sufficient evidentiary basis for doing so.33 The vast majority of cases dealt with by prosecutors, however, are less serious offences (Vergehen). In these cases, the prosecutor may refrain from filing an accusation even where sufficient evidence for obtaining a conviction is available. According to § 153 CCP, the prosecutor may dismiss a Vergehen case without prosecution if the offender’s guilt—if proved—would be regarded as minor34 and if there is no public interest in prosecution. Dismissal requires the approval of the (hypothetical) trial court whenever the offence in question carries a statutory minimum sentence beyond a fine or has caused significant harm.35 But approval is almost invariably granted, and the existence or absence of a public interest is for the prosecutor to determine and is not subject to judicial review.36 If the prosecutor finds that the suspect’s Vergehen does not require a criminal conviction but should not go without any sanction, he may offer the suspect to dismiss the case if the suspect fulfils certain conditions, most frequently to pay a sum of money to the victim, the state or a charitable organisation. This option exists where fulfilment of the condition can be expected to satisfy the public interest, and the suspect’s guilt is not so serious as to preclude this disposition.37 Conditional dismissal under this provision requires the approval of the (hypothetical) trial court under the same conditions as dismissal under § 153 CCP (see above). Moreover, dismissal is permissible only if the suspect has given his consent and has fulfilled the conditions imposed on him. If prosecution has been dismissed under

31 K Graalmann-Scheerer, ‘§ 170’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal numbers 23ff; K Schmid, ‘§ 170’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal numbers 3-8. 32 In 2010, German prosecutors dismissed for lack of sufficient evidence 1.3 million cases out of a total of 4.6 million cases, that is 28%; see Statistisches Bundesamt (n 5) 26. 33 § 170, s 1 CCP. 34 Since the Code puts the existence of guilt in conditional terms, the prosecutor can dismiss a case under this provision even without having conducted a full investigation; see 82 BVerfGE 106, 115-17 (1990) (no violation of the presumption of innocence if the court or prosecutor state ‘hypothetical guilt’ in an order dismissing a case in accordance with § 153 CCP); L Meyer-Goßner, ‘§ 153’ in L Meyer-Goßner and B Schmitt (eds) Strafprozessordnung, 55th edn (Munich, Beck, 2012) marginal number 3. 35 § 153, s 1, 2nd sentence CCP. 36 A Schoreit, ‘§ 153’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 33; W Beulke, ‘§ 153’ in E Löwe, W Rosenberg and others (eds), vol 5, Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2008) marginal numbers 39, 46. 37 § 153a, s 1 CCP. For a critical assessment of this provision see Roxin and Schünemann (n 22) 81.

General Aspects of the Procedure 269 this provision, the prosecutor cannot resume it unless it later turns out that the suspect’s conduct in question was a Verbrechen rather than a Vergehen.38 The Code of Criminal Procedure provides for several other, less often used grounds for prosecutorial dismissal, including the fact that the offence was committed abroad39 and that there is an unrelated prosecution against the suspect under way, which is expected to lead to a more severe sentence than the one to be expected for the current offence.40

5. The Status of the Accused/Defendant It is one of the great achievements of modern criminal procedure law that the suspect as well as the defendant41 is treated as a subject (party) of the criminal process rather than a mere object of an inquisition. The accused enjoys freedom in devising his defence strategy, which can consist in total silence and non-cooperation but also in a most active participation in the fact-finding process both before and at the trial.42 The right of any suspect and accused to remain silent is not spelled out in the Code of Criminal Procedure but has been deduced from the principle of human dignity and thus enjoys constitutional status.43 § 136, s 1 CCP provides that the suspect must be informed of his right not to make any statement as to the matter under investigation. German courts have interpreted the right to silence broadly as including any activity that might lead to or facilitate the prosecution of the suspect.44 If the accused chooses to participate actively in the process, he has a variety of options, ranging from requesting the prosecutor to take evidence on his behalf 45 and taking part in judicial acts of investigation46 to introducing his own witnesses and experts at the trial.47 Most importantly, the suspect may at any time make use of the assistance of a lawyer48 and has, under certain circumstances, the right to have a lawyer appointed for him by the court.49 In the latter case, the accused has to bear the costs of the lawyer only if he has been convicted and has sufficient financial means.50 38

§ 153a, s 1, 5th sentence CCP. §§ 153c and 153f CCP. 40 § 154 CCP. 41 In German legal language, a person suspected of a crime is called Beschuldigter during the pre-trial investigation, Angeschuldigter after an accusation has been filed, and Angeklagter after the court has accepted the accusation and set the case for trial; § 157 CCP. 42 For an overview of the suspect’s active and passive rights, see Roxin and Schünemann (n 22) 105-108. 43 56 BVerfGE 34, 43 (1981). The privilege against self-incrimination is also guaranteed in Art 14, s 3, lit g International Covenant on Civil and Political Rights of 23 March 1976, which was transformed into German law in 1976 (II BGBl 1973 1534). 44 See 52 Entscheidungen des Bundesgerichtshofes in Strafsachen. Amtliche Sammlung (Decisions of the Federal Court of Justice. Official Collection—BGHSt) 11, 17-22 (2007); N Bosch, Aspekte des nemo-tenetur-Prinzips aus verfassungsrechtlicher und strafprozessualer Sicht, Strafrechtliche Abhandlungen, vol 110 (Berlin, Duncker und Humblot, 1998); T Verrel, Die Selbstbelastungsfreiheit im Strafverfahren: ein Beitrag zur Konturierung eines überdehnten Verfahrensgrundsatzes (Munich, Beck, 2001); M Böse, ‘Die verfassungsrechtlichen Grundlagen des Satzes ‘Nemo tenetur se ipsum accusare’ [2002] Goltdammer’s Archiv für Strafrecht 99. 45 § 163a, s 2 CCP. However, the prosecutor is obliged to take such evidence on the request of the suspect only if he deems the evidence to be relevant; see section E 6 below. 46 § 168c, s 2 CCP. 47 § 245, s 2 CCP. 48 § 137, s 1 CCP. 49 §§ 140 and 141 CCP. See further section E3 below. 50 §§ 465 and 467 CCP; § 52, ss 1 and 2 Gesetz über die Vergütung der Rechtsanwältinnen und Rechtsanwälte (Law on the Fees of Female and Male Lawyers), I BGBl 2004, 718. 39

270 Germany 6. Specialised Procedure for Financial Criminal Investigations The competent state tax agency (Finanzbehörde) has authority to investigate tax fraud and certain related crimes.51 Where a tax agency conducts a criminal investigation, it has the same rights as the public prosecutor in a criminal case,52 and officers of tax agencies specialising in detecting and investigating tax fraud have the same rights as police officers in criminal investigations.53 If the harm and the offender’s guilt in a tax fraud case are minor, the tax agency may desist from prosecution, even without approval of the court.54 If there is sufficient evidence, the tax agency may apply to the competent criminal court for the issuance of a penal order, that is, a written judgment drafted by the tax agency.55 The public prosecutor may at any time relieve the tax agency of an investigation.56 The fact that the tax agency conducts both tax proceedings and criminal investigations can lead to problems of overlap between both proceedings, which follow different legal principles. In particular, a taxpayer is obliged to provide the tax agency with any information it may need to assess the amount of taxes due. This conflicts with a suspect’s right to silence in a criminal proceeding. It is therefore crucial to determine at what point a tax assessment proceeding turns into a criminal proceeding.57 § 397, s 1 Fiscal Code provides that a criminal proceeding is deemed instituted whenever the tax agency, the prosecutor, the police or a judge take a measure that indicates their intention of proceeding criminally against a person in connection with a criminal tax offence. When the transition from tax proceedings to criminal proceedings has occurred, the suspect must be informed thereof as soon as he is asked to provide (further) information to the tax agency.58 Information that he has provided previously may be used for his prosecution for a tax offence. Such information must, however, not be used for the taxpayer’s prosecution for other offences unless there is an overriding public interest in doing so.59

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect German law does not provide for any formal act designating a person to be a suspect in criminal proceedings. Some authors60 use the definition in § 397, s 1 Fiscal Code61 as a guideline as to when a person should be considered a suspect, with the ensuing rights to 51

§ 386 Abgabenordnung (Fiscal Code) (I BGBl 2002, 3866; 2003, 61). § 399, s 1 Fiscal Code. § 208, s 1 Fiscal Code. 54 § 398 Fiscal Code. 55 § 400 Fiscal Code. 56 § 386, s 4 Fiscal Code. 57 According to § 393, s 1 Fiscal Code, the rights and duties of the agency and of the taxpayer are determined by the rules relevant for the proceeding. 58 § 397, s 3 Fiscal Code. 59 § 393, s 2 Fiscal Code. 60 See, eg, 38 BGHSt 214, 228 (1992); 51 BGHSt 367, 370 (2007); S Gleß, ‘§ 136’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal number 5; K Rogall, ‘§ 133’ in J Wolter (ed), Systematischer Kommentar zur Strafprozessordnung (SK-StPO), 4th edn (Cologne, Heymanns, 2010) marginal number 32. 61 See section A6 above. 52 53

Investigation Measures 271 remain silent and to have access to the assistance of a lawyer. Yet § 397, s 1 Fiscal Code requires some ‘measure’ to be taken against a person and thus does not cover the frequent situation that a person interrogated by the police as a witness makes statements that raise or reinforce a suspicion of criminal wrongdoing. The Federal Court of Justice has held that a person can still be a witness when there exists some suspicion that he may have committed a crime;62 however, when that suspicion becomes solid (verdichtet), the police and other criminal justice agencies are obliged to treat the person as a suspect and to advise him of his rights accordingly.63

2. Questioning the Suspect Pre-Trial The suspect has a right to be questioned by the prosecutor or the police at least once before the conclusion of the investigation.64 If summoned by the prosecutor or by the judge of the investigation, the suspect is obliged to appear,65 but in view of his right to silence the suspect does not have to make any statement as to the matter under investigation. At the beginning of the questioning, the officer or judge shall inform the suspect about the subject matter of the interrogation and shall name the offence he is suspected of. The suspect shall also be informed of his right to remain silent and of the right to consult with a lawyer even before the questioning begins. The suspect shall, moreover, be told that he has the right to request further investigations to be undertaken and to submit statements in writing.66 If the questioning is conducted by a prosecutor or a judge, the suspect has the right to have his lawyer present during the interrogation.67 Since the provision on police questioning does not make a reference to this rule, one has to conclude that there is no right to the presence of a lawyer for a suspect questioned by the police.68 However, the suspect can generally refuse to talk to the police, and he can thus make any questioning conditional on his lawyer’s presence.

62 See § 60, no 2 CCP, which provides that witnesses who are suspected of having committed the offence in question shall not be interrogated under oath. This provision indicates that the Code assumes that a suspected person can still be a witness. 63 37 BGHSt 48, 51-52 (1990); 53 BGHSt 112, 114 (2008). 64 § 163a, s 1 CCP. The suspect need not be given a hearing if the investigation is dismissed without prosecution. 65 §§ 133 and 163a, s 3, 1st sentence CCP. There is no obligation on the part of the suspect to comply with a police summons to appear. 66 § 136 CCP contains this list of required points of information. It applies to judicial, prosecutorial and police questioning (see § 163a, s 3 and 4 CCP). 67 § 163a, s 3 and § 168c, s 1 CCP. 68 Gleß (n 60) marginal number 45; R Griesbaum, ‘§ 163a’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 28; MeyerGoßner, ‘§ 163’ (n 34) marginal number 16. But see, contra, H Kühne, Strafprozessrecht, 8th edn (Heidelberg, C F Müller, 2010) marginal number 225; U Eisenberg, Beweisrecht der StPO, 7th edn (Munich, Beck, 2011) marginal number 517; W Wohlers, ‘§ 163a’ in J Wolter (ed), SK-StPO, 4th edn (Cologne, Heymanns, 2011) marginal number 72. The minority view points out that the right to have the assistance of a lawyer is guaranteed not only in § 137, s 1 CCP (‘in every phase of the proceedings’) but is also part of the constitutional due process (Rechtsstaat) principle.

272 Germany Any statement the suspect makes shall be recorded in a written protocol.69 The protocol shall be read to the suspect and signed by him.70 If the suspect refuses to sign, the reason for his refusal shall be recorded.71 The Code allows but does not demand a recording of the questioning on audio or video tape. If such recording has been made it needs to be transcribed into writing.72

3. Interrogation of Witnesses in the Investigation Stage (Including Complainant/ Injured Party) Like suspects, witnesses (including victims) are under no obligation to talk to the police. Witnesses are, however, obliged to appear and to testify before a judge73 or a prosecutor74 when they have been summoned. A witness who fails to appear or to give testimony can forcibly be brought before the judge or prosecutor, and he can be fined75 or even jailed for up to six months76 if he refuses to testify. Even during the pre-trial investigation, a judge can interrogate a witness under oath if this is necessary to make the witness testify truthfully and if there is danger in delay or the witness may be unable to appear at the trial.77 German law provides for a broad array of testimonial privileges. Witnesses may refuse to answer questions if the reply would put the witness or one of his relatives at risk of being prosecuted for a criminal offence or an administrative infraction.78 Relatives of the suspect may generally refuse to testify; this includes fiancés, relatives of the spouse and former spouses.79 The testimonial privilege belongs to the witness, not to the suspect. The defendant can thus not (legally) influence a relative’s decision whether to testify. Members of certain professions, eg, clergy, physicians, lawyers, tax accountants, psychotherapists, journalists, and drug counsellors, may decline to testify on any information obtained in the course of their professional activities, unless the person who provided the information authorises the professional to disclose the information.80 The same privilege applies to German members of the European Parliament as well as to members of the German federal parliament or a state parliament.81 The official who conducts the interrogation is obliged to inform the witness of any testimonial privilege he may have.82 If the requisite information has not been given, the witness’s testimony cannot be used as evidence against the accused or—in the case of self-incriminating evidence—against the witness.83

69

§§ 168 and 168b, s 2 CCP. § 168a, s 3 CCP. 71 § 168a, s 3, 3rd sentence CCP. 72 § 168a, s 3, 5th sentence CCP. 73 § 48, s 1 CCP. 74 § 161a, s 1 CCP. 75 § 70, s 1 CCP. 76 § 70, s 2 CCP. The prosecutor cannot impose jail on a recalcitrant witness but must request a judge to do so; §§ 161a, s 2, 2nd sentence CCP. 77 §§ 59 and 62 CCP. 78 § 55, s 1 CCP. 79 § 52 CCP. 80 § 53 CCP. 81 § 53, s 1, no 4 CCP. 82 § 52, s 3 and § 55, s 2 CCP. 83 See L Senge, ‘§ 52’ and ‘§ 55’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal numbers 39 and 19, with further references. 70

Investigation Measures 273 Persons who are under a statutory obligation of secrecy, in particular civil servants, may testify only with the prior permission of the head of the requisite public agency. Permission may be withheld, under federal or state law, if disclosure of the information in question could jeopardise interests of the state.84 This issue arises frequently when the police have used secret informers; in this case, police officers often do not receive permission to disclose the identity of the informer.85 Interrogators should respect the interests of witnesses, especially victims. Like suspects, witnesses must not be forced or tricked into making statements by prohibited means that have the capacity of overcoming their will.86 Such means include maltreatment, induced fatigue, administration of drugs, torment, hypnosis as well as any measure that impairs the witness’s memory. Coercion, threats and promises are permissible only insofar as provided for by criminal procedure law.87 For example, a witness may be told that he will be jailed if he refuses to answer the prosecutor’s questions, because that measure is within the purview of § 70, s 2 CCP; but the interrogating police officer must not promise a witness impunity for his offences if he provides information against others, because it is for the trial judge to decide on any sentencing concession for ‘crown witnesses’.88 Witnesses’ privacy interests are not well protected under German law. Questions concerning a witness’s private sphere, or potentially affecting his sense of honour, shall be asked only insofar as necessary for the determination of the truth;89 yet prosecutors and courts tend to give precedence to the interests of truth-finding over any privacy concern a witness may have, and the witness has no procedural recourse against prying questions.90 Witnesses have the right to bring a lawyer, who may be present during the questioning and give advice to the witness. If legal assistance appears necessary for the protection of the witness’s interests, the court shall appoint a lawyer for him for the time of the interrogation.91

4. Arresting the Suspect and Detention for Questioning German law does not permit arrest for the sole purpose of questioning a suspect. A suspect can be arrested only if grounds for pre-trial detention exist.92 When a suspect has been arrested lawfully, however, the police may use for questioning the period before the suspect

84

See, eg, § 68, s 1 Bundesbeamtengesetz (Federal Law on Public Servants) (I BGBl 2009, 160). Cf 57 BVerfGE 250 (1981); 46 BGHSt 93 (2000) (discussing possible conflicts with the right to confrontation under Art 6, s 3 litd European Convention of Human Rights of 4 November 1950, Council of Europe Treaty Series, No 5). 86 § 136a CCP in connection with § 69, s 3 CCP. 87 § 136a, s 1, 2nd and 3rd sentences CCP. 88 Cf § 46b Penal Code, providing for a discretionary sentence reduction for informers. 89 § 68a, s 1 CCP. 90 21 BGHSt 334, 360 (1967); A Ignor and C Bertheau, ‘§ 68a’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar 26th edn (Berlin, de Gruyter) marginal numbers 5–6, 12; for a decision that emphasises the authority of the judge to protect witnesses against questioning on intimate details, see BGH, ‘Judgment of 11 January 2005’ (2005) Neue Juristische Wochenschrift (NJW) 1519. 91 § 68b, s 2 CCP. The Federal Constitutional Court has regarded a witness’s right to legal assistance as an element of constitutional due process; 38 BVerfGE 105, 116 (1974). 92 § 127, s 2 CCP. See section B5 below. 85

274 Germany must be brought before a judge or released.93 Provisional arrest is also permissible to the extent necessary for establishing a suspect’s identity; the maximum period of detention for that purpose is 12 hours.94 The prosecutor or the judge of the investigation may summon the suspect for questioning.95 If the suspect fails to comply with the summons, or if grounds for pre-trial detention exist, the judge may order the suspect to be transported, by force if necessary, to the court or the prosecutor’s office for questioning.96

5. Pre-Trial Custodial Detention Pre-trial detention of a suspect is permissible if there is a strong suspicion that the suspect is guilty of a criminal offence and if there exists a special reason for depriving him of his freedom pending trial. Although detention is called Untersuchungshaft (literally: detention during the investigation), it may extend until the judgment has become final, that is, until the defendant has exhausted or waived all regular avenues of appeal. A defendant can thus remain in Untersuchungshaft during the trial and also after the first-instance trial if an appeal has been filed, hence the overall period of ‘pre-trial’ detention may be several years.97 If the defendant is eventually convicted and sentenced to imprisonment, barring special circumstances the time spent in pre-trial detention is deducted from his sentence.98 Pre-trial detention is a tool for safeguarding the integrity of the criminal process. A trial may be held only in the presence of the defendant,99 and the court can find the truth about the alleged crime only if it has access to evidence that has not been forged or falsified. The proper purpose of pre-trial detention thus is to prevent the suspect from absconding and from illegally tampering with the evidence. The legal prerequisites of pre-trial detention reflect that purpose.100 A ‘strong’ (dringend) suspicion, as is required for pre-trial detention,101 exists when it is highly likely that the suspect will be convicted. Sometimes, suspicion against a person is strong in the early phase of the investigation, but later evidence may appear that reduces the likelihood of conviction. In that case, the trial may still take place but the suspect has to be released from detention.102

93 The suspect must be released by the end of the day following arrest unless a judicial warrant for pre-trial detention has been issued (§ 128, s 1 CCP). As to the question whether police may detain a suspect for the maximum time available by law even if a judge would be immediately accessible, see BGH, ‘Judgment of 17 November 1988’ (1990) NJW 1188; H Hilger, ‘§ 128’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter) marginal number 9; Meyer-Goßner, ‘§ 128’ (n 34) marginal number 4. 94 § 163b, s 1 and § 163c, s 2 CCP. 95 §§ 133 and 163a, s 2 CCP. 96 §§ 133, 134 CCP. 97 J Graf, ‘§ 112’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 58. 98 § 51, s 1 Penal Code. 99 §230, s 1 and § 231, s 1 CCP. 100 For a critical analysis of the German law on pre-trial detention, see Paeffgen, ‘vor § 112 ff ’ in J Wolter (ed), SK-StPO, vol II, 4th edn (Cologne, Heymanns, 2010) marginal numbers 11ff. 101 § 112, s 1 CCP. 102 Oberlandesgericht Köln (State Court of Appeals of Cologne), ‘Judgment of 22 December 1998’ [1999] Strafverteidiger 156, 157; Graf (n 97) marginal number 6.

Investigation Measures 275 As a further prerequisite for pre-trial detention, the judge must find one of several special grounds for detention (Haftgrund):103 — —

the suspect has fled from the jurisdiction or is in hiding; the circumstances of the individual case suggest the risk that the suspect may flee from the jurisdiction (Fluchtgefahr); or — the suspect’s conduct gives rise to the urgent suspicion that he may destroy, hide or falsify evidence, may attempt to improperly influence witnesses or other suspects, or may cause others to do so, and may thereby impede the determination of the truth (Verdunkelungsgefahr).

Although risk of flight is to be assessed based on the circumstances of each individual case, the courts tend to consider typical factors, such as whether the suspect has closer personal ties to a foreign country than to Germany, or whether the likelihood of a severe sentence gives him a strong incentive to avoid conviction by leaving the jurisdiction.104 With respect to Verdunkelungsgefahr, the fact that witnesses or co-suspects have not yet been identified does not by itself justify pre-trial detention of a suspect, nor is it sufficient that he has made use of his right to remain silent.105 Yet, judges if in doubt tend to make release of a suspect depend on his making a confession; (only) if he himself provides sufficient evidence for his conviction will they assume that there is no risk that he may tamper with evidence.106 No special reason for pre-trial detention is needed when a person is urgently suspected of having committed murder, manslaughter, genocide, aggravated assault or aggravated arson, or of being a member of a terrorist organisation.107 As written, this provision (§ 112, s 3 CCP) clearly violates the presumption of innocence, because under that presumption a mere suspicion alone cannot be the basis for a procedural measure as invasive as pre-trial detention. Although the presumption of innocence is part of the constitutional principle of Rechtsstaatlichkeit, the Federal Constitutional Court has upheld a former version of this provision, interpreting it as a legal presumption of the risk of flight in light of the fact that a conviction for murder carries a mandatory life sentence. A person facing the prospect of a life behind bars, the Court argued, may be expected to consider flight even without further circumstances pointing in that direction.108 Even if one accepts this premise, § 112, s 3 CCP in its present extension cannot be justified because the legislature has since the Court’s 1965 decision added several further offences with significantly lesser maximum penalties,109 to which the Court’s reasoning does not apply.110

103

§ 112, s 2 CCP. For case law on these points, see Hilger, ‘§ 112’ (n 93) marginal numbers 33a, 39; Meyer-Goßner, ‘§ 112’ (n 34) marginal numbers 17-25. 105 Some authors maintain that the mere fact that a person is suspected of a crime involving fraud is sufficient grounds for the expectation that he will destroy or falsify evidence if left at large; Graf (n 97) marginal number 31; Meyer-Goßner (n 34) marginal number 30. But see, contra, Oberlandesgericht Hamm (State Court of Appeals of Hamm), ‘Judgment of 6 February 2002’ [2002] Strafverteidiger 205; Paeffgen, ‘§ 112’ (n 100) marginal number 32a. 106 Cf R Deckers, in Brüssow et al (eds), Strafverteidigung in der Praxis: Grundlagen des Strafverfahrens, 3rd edn, vol 1 (Bonn, Dt Anwaltverl, 2004) 401; Paeffgen, ‘§ 112’ (n 100) marginal number 33. 107 § 112, s 3 CCP. 108 19 BVerfGE 342, 350 (1965). 109 The maximum penalty for aggravated assault (§ 226 Penal Code) as well as for membership in a terrorist organisation (§ 129a, s 1 and 2 CCP) is 10 years’ imprisonment. 110 For criticism, see Paeffgen, ‘§ 112’ (n 100) marginal numbers 41-45; Th Weigend, ‘Der Zweck der Untersuchungshaft’ in H Jung, B Luxenburger, E Wahle (eds), Festschrift für Egon Müller (Baden-Baden, Nomos, 2008) 739, 749-51. 104

276 Germany The Code of Criminal Procedure provides for the prevention of crime as a further ground for pre-trial detention. If a person is strongly suspected of having committed one of a number of offences listed in the Code, and certain facts give reason to expect that he will commit further offences of the same kind before trial, the suspect can be held in pre-trial detention even if there is no danger of flight or of tampering with evidence.111 The statutory list of crimes includes sexual offences, assault with a dangerous instrument, aggravated theft, robbery, fraud, arson, and many drug offences. Again, it is doubtful whether this provision can be reconciled with the presumption of innocence; it is, moreover, questionable whether the prevention of future crime is a proper subject for legislation in the Federal Code of Criminal Procedure, which is to deal with the investigation and adjudication of past crimes.112 The imposition of pre-trial detention is subject to the principle of proportionality. Yet, there is neither a statutory bottom line as to the seriousness of the suspected offence,113 nor is there an absolute maximum time for detention. Normally, detention before the rendering of a first-instance judgment shall not exceed six months.114 But if the investigation is particularly difficult or extensive, or if there exists some other good cause, the State Court of Appeals may extend pre-trial detention in increments of three months, with no limit on the number of extensions.115 One important corollary of the principle of proportionality is the possibility of suspending the enforcement of pre-trial detention whenever less intrusive measures are sufficient to fulfil the purpose of detention. Such measures include the imposition of restrictions on the suspect’s movement (for example, a ban on leaving the place of abode without judicial or police permission) and the deposition of a monetary surety (bail), which will be forfeited if the suspect fails to appear for trial.116 If the suspect is subject to pre-trial detention because there exists the risk of tampering with evidence, he can be ordered to refrain from making contact with witnesses and co-suspects.117 If the suspect fails to meet the conditions imposed by the judge, the detention order can again be enforced. Pre-trial detention may only be ordered by a judge, upon an application by the prosecutor and after hearing of the suspect. Before an accusation has been filed—that is, during the investigation—the judge of the investigation is competent to decide on pre-trial detention; afterwards, the trial court is in charge of making all necessary decisions.118 The suspect may appeal against an order of pre-trial detention to the district court, which decides after an oral hearing at which the suspect may be present.119 A suspect who has been taken into pre-trial detention may also at any time request that the judge who issued the detention order review his case and release him if the prerequisites of pre-trial detention no longer exist.120 The suspect has a right to an oral hearing only every three 111

§ 112a CCP. Police law—which includes prevention of crime—is in Germany not a matter of Federal but of State (Länder) legislation. See also Hilger, ‘§ 112a’ (n 93) marginal numbers 9-10. 113 Even if the statutory maximum penalty of an offence is less than six months’ imprisonment, the suspect can under certain circumstances be held in pre-trial detention for danger of flight (§ 113, s 2 CCP). 114 § 121, s 1 CCP. 115 § 121, s 1 and § 122, ss 1 and 4 CCP. 116 § 116, s 1 CCP. 117 § 116, s 2 CCP. 118 §§ 115, 125 CCP. 119 § 118, s 2 and § 118a, s 2 CCP. 120 §§ 117 and 120 CCP. 112

Investigation Measures 277 months, however.121 If the public prosecutor during the investigation decides that pre-trial detention is no longer necessary, he may release the suspect, and the judge of the investigation is legally bound to revoke the pre-trial detention order.122

6. Interception of Postal Communications (Letters) Interception of mail is the only secret measure of surveillance that was provided for in the Imperial Code of Criminal Procedure of 1877. The legal rules on this measure have remained virtually unchanged, although the relevance of the interception of ‘snail mail’ for criminal investigations has greatly diminished. Through the interception of postal communication, law enforcement agencies are to obtain access to information while it is en route between the sender and the addressee.123 For that purpose, the Code of Criminal Procedure permits the temporary seizure of letters and other items sent by mail, as well as the reading of their contents. If an order of seizure has been made, the carrier is obliged to forward to the prosecutor all postal items covered by the order.124 Seizure of mail may only be ordered by a judge.125 Under exigent circumstances, the prosecutor may order seizure, but his order loses force unless confirmed by the judge of the investigation within three working days.126 The opening of seized mail requires a separate order, which may only be made by a judge.127 The judge is also authorised to open and read the mail, but he can delegate this task to the prosecutor.128 When the letters have been read and—if necessary—copied, they will normally be forwarded to the addressee, unless it is necessary to permanently seize them as evidence.129 The elaborate formal requirements for the seizure and opening of mail contrast strangely with the lack of any substantive barriers. Any mail stemming from or addressed to the suspect can be seized,130 and the Code does not provide for any further restriction.131 Since the German constitution explicitly protects the secrecy of mail,132 however, any interference with that fundamental right must be proportional. That means that the seizure must

121

§ 118, s 3 CCP. § 120, s 3 CCP. This provision is a consequence of the fact that it is the prosecutor who conducts the pretrial investigation. The judge’s function is only to control any interference with the suspect’s fundamental rights, but he cannot block the suspect’s release. Once an accusation has been filed, the trial court makes all decisions on detention independently of any motion by the prosecutor. 123 Mail in the possession of the suspect or a witness is subject to seizure according to the general rules; §§ 94 and 95 CCP. 124 Wohlers, ‘§ 99’ (n 68) marginal number 3. 125 § 100, s 1 CCP. 126 § 100, s 2 CCP. 127 § 100, s 3 and s 4, 2nd sentence CCP. 128 § 100, s 3 CCP. 129 § 100, s 5, 2nd sentence CCP. 130 § 99 CCP. 131 This reflects the concept of the original Imperial Code of Criminal Procedure of 1877. Under that concept, formal prerequisites—in particular a judicial order—were deemed to sufficiently protect any right the suspect might have; there were no substantive limits to acts of investigation. 132 Art 10, s 1 Basic Law. 122

278 Germany be relevant to the investigation of a serious offence, there must exist a substantial suspicion, and the measure may be ordered for a limited time only.133 A further limit to the seizure of mail is set by the protection of certain professional relationships.134 Seizure of the mail stemming from or addressed to a member of the clergy or a lawyer is prohibited if it is to be expected that the contents would be covered by the professional testimonial privilege of these persons.135 An exception applies where the member of the clergy or the lawyer is suspected of having participated in the offence under investigation.136

7. Interception of the Contents of Telecommunications (Content Data) Until 1968, the secrecy of telecommunications (guaranteed by Article 10 BL) was absolutely protected even in the context of the criminal process. In that year, the legislature introduced the option of wiretapping into the Code of Criminal Procedure. Because the surveillance and secret recording of telephone conversations were seen as a serious infringement of the constitutionally protected privacy, this measure was permitted only for the investigation of a number of particularly serious offences.137 Since 1968, the statutory list of these offences has steadily been expanded and now covers 39 groups of offences, ranging from murder to, for example, incitement to making an abusive application for asylum. Several additional safeguards are meant to prevent an abuse of wiretapping: — — — —

suspicion that the person to be put under surveillance has committed one of the listed offences must be based on ‘certain facts’; the suspected offence must be a serious one; it must be impossible or significantly more difficult to investigate the matter by other means;138 and surveillance may cover only telecommunication devices used by the suspect or a person who makes communications on his behalf.139

Moreover, only a judge may authorise a wiretap. Under exigent circumstances, the prosecutor may provisionally order a wiretap, but his order loses force after three days unless confirmed by a judge.140 The maximum duration of a surveillance order is three

133 Meyer-Goßner, ‘§ 99’ and ‘§ 100’ (n 34) marginal number 12 and marginal number 5. According to a Federal regulation for prosecutors, surveillance of the mail should normally not exceed one month; No 80(1) Richtlinien für das Strafverfahren und das Bußgeldverfahren (Regulations for Criminal Procedure and the Procedure in Administrative Infraction Matters of 1 February 1997). 134 See section B3 above. 135 § 160a, s 1 in connection with para 53, ss 1 and 2 CPP. 136 § 160a, s 4 CCP. 137 § 100a, s 2 CCP. 138 § 100a, s 1 CCP. 139 § 100a, s 3 CCP. According to the Federal Constitutional Court, e-mails stored by a provider are protected by the secrecy of telecommunication (Art 10 BL), even when the recipient of the e-mail has already read its contents (124 BVerfGE 43 (2009)). As a consequence, secret access to such e-mails must meet the conditions set by para 100a CCP, but the judge can also order seizure of the relevant data in accordance with § 94, s 2 CCP. See Meyer-Goßner, ‘§ 100a’ (n 34) marginal number 6b. 140 § 100b, s 1 CCP.

Investigation Measures 279 months; but the order can be repeated as often as is needed in light of the results of surveillance.141 With respect to privileged professional communications, the same protective rules apply as with the seizure of mail.142 Moreover, a wiretap order is impermissible insofar as it would produce only information belonging to the core area of private life (Kernbereich privater Lebensgestaltung),143 that is, conversations between spouses and close relatives unless the conversations concern past or future crimes. If such protected private information has accidentally been recorded, it must be deleted and may not be used as evidence.144 When a measure of telecommunication surveillance has been terminated, those persons who participated in the communications under surveillance must be informed of the surveillance, unless this would jeopardise the purpose of the investigation or the life, bodily integrity or personal freedom of a person, or if it can be assumed that the person involved is not interested in being informed because he was only marginally affected.145 Any person who has been notified may within two weeks after notification apply to the court for a determination of the lawfulness of the measure.146 Data and records no longer needed for the criminal process shall be deleted.147

8. Monitoring of Telecommunication Traffic Data The constitutionally protected secrecy of telecommunication extends to traffic data, that is, information as to connections made between persons with certain assigned telephone or IP numbers, and the times at which these connections exist.148 According to § 100g CCP, however, the judge of the investigation may order the seizure of traffic data of a suspect’s present or past connections if there exists a suspicion that he or she committed an offence listed in § 100a CCP, which permits the surveillance of content data,149 another offence of significant seriousness (erhebliche Bedeutung) in the individual case, or of any offence that has been committed by means of telecommunication. In the latter case, the measure is permissible only if the investigation of the matter or the discovery of the suspect’s location would otherwise be impossible and if the measure is proportional to the significance of the matter.150 Under § 100g CCP, traffic data are seized from the telecommunication provider without notice to the persons participating in the telecommunication. The same restrictions as with content data apply as to data concerning communications between the suspect and persons who have a testimonial privilege.151 As with surveillance of telecommunication content data, the prosecutor may under exigent circumstances order the seizure of traffic

141 142 143 144 145 146 147 148 149 150 151

§ 100b, s 1, 4th and 5th sentence CCP. See section B6 above. See 109 BVerfGE 279 (2004). § 100a, s 4 CCP. § 101, ss 4 and 5 CCP. § 101, s 7, 2nd sentence CCP. § 101, s 8 CCP. 107 BVerfGE 299, 312-14 (2003); 125 BVerfGE 260, 310-13 (2010). See section B7 above. § 100g, s1, 2nd sentence CCP. See § 160a CCP.

280 Germany data without prior judicial authorisation; but the seizure loses force after three days unless confirmed by a judge.152 In 2010, the Federal Constitutional Court ruled § 100g CCP to be unconstitutional to the extent that it applies to traffic data automatically stored even without a prior suspicion of crime.153 Although the EU requires Member States to store all telecommunication traffic data for a minimum of six months,154 due to political differences the German legislature has not (as of July 2012) passed a law on data storing that would meet the very specific restrictions imposed by the Federal Constitutional Court. The technical data (card number and identification number) of mobile phones may also be recorded and used for criminal investigations, especially for determining the location of a suspect at a certain time.155 This measure requires judicial authorisation and is permissible only if the investigation concerns an offence of substantial significance.156 Data concerning non-suspects may only be recorded and used to the extent necessary for identifying the suspect’s phone number and must then be deleted.157

9. Surveillance in Public and Private Sphere (Acoustic and Visual) With respect to acoustic surveillance, the Code of Criminal Procedure distinguishes between surveillance of homes and outside of homes. Article 13, s 1 Basic Law declares homes to be ‘inviolable’. This protection has been interpreted broadly to include all places where persons have a reasonable expectation of privacy and where they can withdraw from public view. The constitutional protection of the ‘home’ therefore extends, for example, to a trailer, an office or other place of work, and a backroom in a restaurant.158 In its original version, Article 13 Basic Law provided for an exception to the ‘inviolability’ of the home only for a judicially ordered search. Since a search is regarded as an open, non-secret measure, this exception did not permit measures of clandestine surveillance, for example, the use of hidden microphones.159 In 1998, Article 13 Basic Law was amended to permit the use of technical devices for the acoustic surveillance of homes. But this constitutional authorisation of acoustic surveillance has been limited in several ways: the measure is permissible only for the investigation of certain particularly serious offences that are individually listed in a statute; surveillance must be limited to homes where the suspect is expected to stay; the measure is permissible only if the investigation of the matter would otherwise be

152

§ 100g, s 2, 1st sentence in connection with § 100b, s 1, 2nd and 3rd sentences CCP. 125 BVerfGE 260, 328-29, 351-53 (2010). The Federal Constitutional Court criticised, inter alia, that the possibility of seizing all traffic data concerning a person was not limited to particularly serious offences but was possible whenever there was a suspicion that an offence ‘by use of telecommunication’ had been committed. 154 Arts 3 and 6 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending [2006] OJ L105/54. 155 § 100i CCP. 156 The broad extension of this measure, which covers a large number of persons unsuspected of any crime, leads to serious problems of proportionality; see Tobias Singelnstein, ‘Verhältnismäßigkeitsanforderungen für strafprozessuale Ermittlungsmaßnahmen’ [2012] Juristenzeitung 601. 157 § 100i, s 2 CCP. 158 32 BVerfGE 54 (1971); see further G Hermes, ‘Art. 13’ in H Dreier (ed), Grundgesetz-Kommentar, 2nd edn (Tübingen, Mohr Siebeck, 2004) marginal numbers 16-19. 159 109 BVerfGE 279, 309 (2004). 153

Investigation Measures 281 impossible or significantly more difficult; and the order must be made by a panel of three judges of the district court.160 In accordance with this set of strict constitutional limitations, § 100c, s 2 CCP lists 26 offences or groups of offences the suspicion of which permits acoustic surveillance inside homes. This list covers genocide, murder and high treason, but also extends to less serious crimes such as aggravated cases of money laundering.161 In order to avoid the use of the measure in petty cases, § 100c, s 1, no 2 CCP provides that acoustic surveillance of a home is permissible only if the concrete offence under investigation is a serious one. Implementing a decision of the Federal Constitutional Court regarding the absolute constitutional protection of the core sphere of privacy (Kernbereich privater Lebensgestaltung),162 § 100c, s 4 CCP provides that surveillance of homes is impermissible to the extent that surveillance is expected to cover conversations that are part of the core sphere of privacy, for example, conversations among spouses or close relatives concerning non-criminal matters. Conversations conducted in stores and business locations—which are protected ‘homes’ under Article 13 BL—are presumed to be outside the core private sphere.163 In effect, this means that acoustic surveillance of places of business may be ordered when the statutory requirements are met, whereas surveillance of private homes is permissible only under exceptional circumstances. As a further impediment to acoustic surveillance, the Code provides that surveillance, regardless of the kind of ‘home’ in which it takes place, must cease immediately when the conversation turns to matters belonging to the core sphere of privacy.164 This rule in effect demands constant ‘live’ surveillance. Even where a police officer listens in and turns off the microphone whenever the conversation becomes ‘core private’, it is difficult for him to determine at what time he can turn the microphone on again. These restrictive rules have made acoustic surveillance of private places almost unmanageable, and it is therefore not surprising that the number of instances where it has been ordered has remained very low.165 With respect to acoustic surveillance of places other than homes, the same standards as for the surveillance of telecommunication apply.166 The measure is permissible for the investigation of serious cases of the broad array of offences listed in § 100a CCP which permit surveillance of telecommunication.167 The measure may only be directed against

160 Art 13, s 3 Basic Law. Under exigent circumstances, a single judge may issue the order. An order authorising acoustic surveillance of a home is valid for one month, but it may be extended by monthly increments for a maximum of six months. If surveillance seems to be necessary beyond that time, only the State Court of Appeals can authorise a further extension. For details see § 100d, s 1-3 CCP. 161 § 100c, s 2, no 1, lit. l CCP. 162 109 BVerfGE 279, 311-17 (2004). 163 § 100c, s 4, 2nd sentence CCP. 164 § 100c, s 5 CCP. 165 In 2010, there were four instances of acoustic surveillance in all of Germany; see Deutscher Bundestag, Bundestagsdrucksache 17/7008 of 15 September 2011 (Bundesamt für Justiz, 15 September 2009) accessed 15 July 2012 www.bundesjustizamt.de/cln_108/DE/Themen/Buergerdienste/Justizstatistik/Wohnraum/BTDrs__17__70 08,templateId=raw,property=publicationFile.pdf/BTDrs_17_7008.pdf. In the same year, judges ordered telecommunication surveillance in 17,351 instances; see Übersicht Telekommunikationsüberwachung (Maßnahmen nach § 100a StPO) für 2010 (Bundesamt für Justiz, 29 July 2011) www.bundesjustizamt.de/cln_108/DE/Themen/ Buergerdienste/Justizstatistik/Telekommunikation/Uebersicht__TKUE__2010,templateId=raw,property=public ationFile.pdf/Uebersicht_TKUE_2010.pdf. The Ministry of Justice is obliged under § 100b, s 5 and § 100e CCP to publish annually the number of surveillance orders. 166 § 100f, s 1 CCP. 167 See section B7 above.

282 Germany the suspect and persons connected with him; but it can be applied if other persons are unavoidably affected.168 Visual surveillance is not permissible in homes (in the broad sense protected by Article 13 BL). Outside of homes, the police or prosecutor may, even without judicial authorisation, secretly make films, photographs or other images of a suspect if the investigation of the matter would otherwise be more difficult. If the investigation concerns an offence of significant relevance (erhebliche Bedeutung), the police may also use technical means of visual observation.169 If the investigation would otherwise be significantly more cumbersome, photographing of persons unrelated to the suspect, and observation of persons connected with him, are likewise permissible.170 Although the Code does not establish any conditions concerning the offence under investigation, the Federal Constitutional Court, having regard to the constitutional principle of proportionality, requires that the offence in question be at least of mid-level seriousness and disturb the public peace and security.171 Even taking this limitation into account, it is remarkable that secret visual surveillance outside homes is so much less regulated than acoustic surveillance, and that on the other hand visual surveillance in homes is totally off-limits. With respect to subsequent notification and judicial review, the same rules as for surveillance of telecommunication apply.172

10. Monitoring of Bank Transactions German law does not recognise any special ‘bank secrecy’, and employees of banks do not have a testimonial privilege. No special procedural rules exist concerning bank transactions. Communication among banks or between banks and their customers can be put under surveillance under the same conditions and to the same extent as any other private or business communications. Likewise, the premises of banks may be searched and objects including bank records seized in accordance with the general rules on search and seizure.173

11. Tracking and Tracing of Objects and Persons The tracking and tracing of objects by means of technical or electronic devices attached to these objects has not been regulated. It must therefore be assumed that this measure, which does not significantly interfere with fundamental rights of persons, is covered by the general authorisation for the prosecutor174 (and the police175) to conduct investigations ‘of any kind’ to the extent that they are not regulated by particular provisions of the Code of Criminal Procedure.176

168 169 170 171 172 173 174 175 176

§ 100f, ss 2 and 3 CCP. § 100h, s 1 CCP. § 100h, s 2 CCP. 112 BVerfGE 304 (2005). See section B7 above. See section B14 below. § 161, s 1 CCP. § 163, s 1, 2nd sentence CCP. See Meyer-Goßner, ‘§ 161’ (n 34) marginal number 1.

Investigation Measures 283 With respect to persons, short-term observation is also covered by the general authority to investigate. However, any observation lasting for more than 24 hours or being conducted over more than two days requires prior judicial authorisation.177 The judge may authorise such observation only if there exist sufficient factual indications that an offence of significant seriousness has been committed. The measure may, in principle, be directed only against the suspect. Other persons may be systematically observed if certain facts give rise to the expectation that they are or will be in contact with the suspect and that the observation will contribute to the investigation of the matter or will enable the authorities to locate the suspect, and if these objectives cannot as effectively be reached by other means.178 Technical means designed for the purpose of observation may be used outside of homes if the investigation of an offence of significant seriousness or locating the suspect of such an offence would otherwise be significantly more difficult.179 Such means of observation are, for example, devices that report movement or special tracking devices (Peilsender) and devices that allow tracking through GPS.180 But because of the special protection of homes under Article 13 BL, tracking is permissible only outside of homes; evidence that has been obtained through a tracking device while the suspect or other person under surveillance was inside a home is therefore not admissible.

12. Data Mining and Profiling Prosecutors and police may, under their general authority to investigate crime,181 search the internet for publicly accessible data and use such data for the investigation. They may also request public agencies to provide information. However, data protection law limits the authority to combine and compare personal data; in principle, public institutions may use personal data only for the purpose for which they were acquired from the person affected.182 An exception exists, inter alia, for the purpose of investigating crime.183 The matching of personal data from different sources is permissible only under certain conditions:184 —

— —

the investigation concerns an offence of significant seriousness in the area of trafficking in drugs or weapons, counterfeiting, the protection of the security of the state, or an offence endangering the public (eg, arson) or affecting life, health, freedom of movement or sexual self-determination, or any offence committed for gain or habitually or in the context of a gang or organisation; the measure is necessary in order to exclude non-suspects or to identify persons who meet certain conditions relevant to the case; and other measures are significantly less effective for the investigation of the matter.

177 § 163f, ss 1 and 3 CCP. Under exigent circumstances, the prosecutor or a police officer may order an observation, but the order loses force after three days unless confirmed by a judge (§ 163f, s 3 CCP). 178 § 163f, s 1, 3rd sentence CCP. 179 § 100h, s 1, no 2 CCP. If there is an expectation, based on certain facts, that a person is or will be in contact with the suspect, the means of observation can also be used with respect to that person; § 100h, s 2, no 2 CCP. 180 Meyer-Goßner ‘§ 100h’ (n 34) marginal number 2. 181 § 161, s 1 and §163, s 1 CCP. 182 § 14, s 1 Federal Data Protection Act (Bundesdatenschutzgesetz) of 14 January 2003 (I BGBl 2003, 66). 183 § 14, s 2, no 7 Federal Data Protection Act. 184 § 98a CCP.

284 Germany If these conditions are met, the judge—or, under exigent circumstances, the prosecutor185—may order the person or institution that is in possession of certain data to transmit those data to a law enforcement agency,186 which may then match different sets of data in order to obtain information on which persons meet certain criteria related to the investigation of the case. Data no longer needed for the investigation must be deleted. These strict safeguards do not apply with respect to data collected for the purpose of a criminal investigation or for preventing crime. Such data can be ‘borrowed’ for the investigation of another criminal case whenever that is necessary for the investigation or for locating a suspect.187 Under that authority, police data bases, including those concerning road traffic and immigration, may be used for purposes of any criminal investigation. But even in the context of a criminal investigation, data can be transferred from one investigation to that of another offence only within certain limits.188

13. Access to Relevant Premises (‘Crime Scene’) There are no special rules concerning the ‘scene of a crime’. If the offence has been committed in open space, the prosecutor and the police may enter and seize whatever evidence is available under the general rules on seizure.189 If the crime scene is inside a building, a search warrant is required, but where there is an urgent need to secure evidence, exigent circumstances permit the police to enter premises immediately without a judicial order.190 Sometimes it may be useful for the trial that a protocol is drawn up about the state of the locality where the crime was committed. In that case, the prosecutor may request the judge of the investigation to take a judicial viewing (Augenschein) of the premises in question.191 When such a viewing takes place, the prosecutor, the suspect and the defence lawyer have the right to be present.192 A protocol shall state the facts that the judge has found; this protocol must be read to the parties and then be signed by the clerk and the judge.193

14. Search and Seizure Seizure of objects that are potential evidence or potentially subject to confiscation is a routine measure that German law does not restrict significantly. The prosecutor and the police may request any person to deliver an object in his possession if that object may be of relevance to the investigation.194 If the person delivers the object, it will be taken into official

185 § 98b, s 1 CCP. An order issued by the prosecutor loses force unless confirmed by a judge within three working days. 186 § 98a, s 2 CCP. 187 § 98c CCP. 188 For example, information obtained through a measure that is permissible only for the investigation of certain serious offences (see, eg, §§ 100a and 100c CCP) can be used for other investigations only if the offence under investigation is also listed in the provision authorising the original measure (§ 477, s 2, 2nd sentence CCP). 189 See section B14 below. 190 § 105, s 1 CCP. 191 § 162, s 1, 3rd sentence CCP. 192 § 168d, s 1 CCP. 193 § 168a, ss 1, 3 and 4 CCP. 194 § 94, s 1 and § 95, s 1 CCP.

Investigation Measures 285 custody. If the person refuses, the judge may, upon application of the prosecutor, impose a fine upon the recalcitrant possessor or even order him to be taken into custody.195 An alternative measure, which also extends to objects without a known possessor, is seizure196 by a state agent for the duration of the criminal process. Seizure normally requires a judicial order, but under exigent circumstances—especially if the object might be concealed or destroyed unless it is seized immediately—the prosecutor or a police officer operating on his behalf may order seizure, even orally.197 In that case, the person affected by the seizure may subsequently apply to the judge of the investigation for a review of the seizure.198 If the judge finds that the seizure had occurred without a sufficient legal or factual basis, the item will be returned to the possessor. Seizure can extend to any tangible object, which includes letters and computer harddrives where relevant information has been stored, as well as to real estate.199 The Code of Criminal Procedure does not provide for any substantive restrictions or safeguards against seizure of possible evidence and of objects possibly subject to confiscation.200 The general principle of proportionality sets certain limits, however. For example, it would not be permissible to seize a large number of a business firm’s computers in order to find information concerning a minor offence.201 A specific limitation on seizure relates to objects the subject matter of which is covered by a professional testimonial privilege.202 If such objects (for example, a letter, an e-mail or a memorandum) are in the possession of the professional (eg, a physician, lawyer or member of the clergy), they may not be seized unless the professional is suspected of complicity in the offence under investigation.203 If, however, the documents in question (or copies thereof) are in the possession of another person, including the suspect, they may be seized. Documents referring to the defence in the instant case are, however, not subject to seizure, regardless of where they may have been found;204 this includes notes that the suspect made in order to prepare his defence.205 Like seizure, the search of premises or persons is readily available as an investigation tool under German law. Any person suspected of having committed or contributed to an offence is subject to search, which may extend to his person,206 his home and any object 195 § 95, s 2 CCP in connection with § 70 CCP. Constraint is not permissible against the suspect or against a witness who has a testimonial privilege covering the object in question; Meyer-Goßner, ‘§ 95’ (n 34) marginal numbers 5, 6. 196 Legal ownership of the object remains unaffected by seizure. 197 § 98, s 1 CCP. 198 § 98, s 2, 2nd sentence CCP. If an officer has seized an object without prior judicial order, he shall submit the seizure to subsequent judicial review if no one was present during the seizure or if the possessor or one of his relatives had protested against the seizure; § 98, s 2, 1st sentence CCP. 199 Wohlers, ‘§ 94’ (n 68) marginal numbers 20, 24-27. 200 See section B16 below for ‘freezing’ of objects that may eventually be confiscated. 201 With respect to data stored in a computer, copying these data is a less intrusive measure and would therefore often make the seizure of hardware disproportionate. For details see Wohlers, ‘§ 94’ (n 68) marginal number 41; Meyer-Goßner, ‘§ 94’ (n 34) marginal numbers 18a-18c. 202 See section B3 above. 203 § 97, ss 1 and 2 CCP. If the professional is himself under investigation for a criminal offence, all items in his possession can be seized, regardless of the privacy interests of patients or clients. 204 § 148 CCP guarantees the free contact between the suspect and his defence lawyer, which excludes any form of surveillance; see Wohlers, ‘§ 148’ (n 68) marginal number 32. 205 44 BGHSt 46 (1998). 206 Searches of the person are to be distinguished from examinations of the body (for the details of this distinction, see D Krause, ‘§ 81a’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz, Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal numbers 19-21). The purpose of an examination of the body is not to find an object but to determine the status of the body, for example, a

286 Germany belonging to him.207 A search may be ordered for the arrest of the suspect or the discovery of evidence. Moreover, any room in which the suspect has been arrested or that he had entered before his arrest may be searched for evidence.208 Even persons not suspected of any crime may have their body, home and possessions searched whenever there exists an expectation, based on facts, that the suspect can be found on their premises, or that traces of an offence or certain pieces of evidence can be found.209 Private premises may even be searched at night if exigent circumstances exist.210 The principle of proportionality also applies to searches,211 but that principle is of little practical relevance here because less invasive means of discovering evidence are often unavailable, unless the person involved consents or voluntarily delivers the items in question. The lack of substantive legal barriers to searches shows that the inviolability of the home, although guaranteed by the constitution, is of minor consequence when it comes to investigating the suspicion of a crime. In stark contrast to the very detailed provisions regarding clandestine searches,212 Article 13, s 2 BL permits searches of the home whenever a judge, or under exigent circumstances any other official designated by statute, authorises them. In line with this constitutional rule, § 105, s 1 CCP requires a judicial order for any search, but if there is ‘danger in delay’ the prosecutor or a police officer acting on his behalf may order a search. ‘Danger in delay’ signifies exigent circumstances under which the search would become futile if the police officer would have to involve the prosecutor, who would then in turn have to apply to a judge for a search order.213 In practice, ‘danger in delay’ has been interpreted very broadly, so that most routine searches not only of persons but also of premises were conducted without a judicial order, based on the assumption that it would take a long time to obtain a judicial decision and that the evidence in question would have disappeared by the time the judge issued an order.214 In recent years, however, the Federal Constitutional Court has emphasised the exceptional character of searches without judicial authorisation and has required a thorough documentation, in each case, of the time when the relevant information became available to the police, police efforts to reach a judge (by telephone, if necessary), and the need to act immediately.215 The Court has also encouraged local jurisdictions to institute judicial emergency services so that a competent judge of the investigation can be reached even beyond regular office hours.216

person’s physical disability, blood alcohol concentration, or traces of an injury. Except under exigent circumstances, examinations of the body require a prior judicial order, and any invasive examination has to be performed by a licensed physician (§ 81a, ss 1 and 2 CCP). Examinations of the body are also permissible on non-suspects for the purpose of taking a blood sample or for discovering possible traces or consequences of a criminal offence (§ 81c CCP). 207

§ 102 CCP. § 103, s 2 CCP. § 103, s 1, 1st sentence CCP. 210 § 104, s 1 CCP. 211 See 20 BVerfGE 162, 198-207 (1966); J Wolter, ‘§ 102’ in J Wolter (ed), SK-StPO, 4th edn (Cologne, Heymanns, 2010) marginal numbers 30-37; M Jahn, ‘Strafprozessuale Eingriffsmaßnahmen im Lichte der aktuellen Rechtsprechung des BVerfG’ [2007] Neue Zeitschrift für Strafrecht 255. 212 Art 13, s 3-5 BL. See section B9 above. 213 Wohlers, ‘§ 105’ (n 68) marginal numbers 33-38. 214 See U Nelles, Kompetenzen und Ausnahmekompetenzen in der Strafprozeßordnung: zur organisationsrechtlichen Funktion des Begriffs ’Gefahr im Verzug’ im Strafverfahrensrecht (Berlin, Duncker und Humblot, 1980) 214. 215 103 BVerfGE 142 (2000). See also C Krehl, ‘Gefahr im Verzug’ [2001] Juristische Rundschau 491. 216 103 BVerfGE 142,155 (2000); 105 BVerfGE 239 (2002); BVerfG, ‘Decision of 10 December 2003’ [2004] NJW 1442; BVerfG, ‘Decision of 28 September 2006’ [2006] Strafverteidiger 676. Summary of recent case law in Roxin and Schünemann (n 22) 285-86. 208 209

Investigation Measures 287 In order to protect citizens from unlimited ‘fishing expeditions’, judicial search orders must specify the purpose of the search, the objects expected to be found, and the persons and/or premises subject to the search.217 Because circumstances of an investigation do not remain stable over time, the Federal Constitutional Court has decreed that any judicial search order loses force unless carried out within six months.218 A person affected by a search not ordered by a judge can seek a subsequent judicial ruling on the legitimacy of the search.219 Because of the infringement of fundamental rights involved in any search, the individual’s request for a judicial determination cannot be rejected by declaring the matter moot after the termination of the search.220 Whereas in the past the clearly dominant opinion in case law and legal literature had been that the fruits of an illegal search can be used as evidence,221 the Federal Constitutional Court has recently declared that a clearly illegal search, especially where police officers purposely avoided prior judicial involvement, violates the principle of rule of law (Rechtsstaatlichkeit) and should therefore lead to the exclusion of any evidence found in the course of such a search.222 The extent and limits of this exclusionary rule are not yet clear, however.

15. Online Search of Computers Data stored on a computer can be seized.223 Seizure is a visible measure, and the owner of the computer or network becomes aware of the fact that law enforcement officers have seized the information in question. Another possibility of accessing electronically transferred data is by surveillance of telecommunication (§ 100a CCP). This measure, however, is limited not only to certain offences but also to data while en route between servers, and thus does not pertain to data already stored on a private server or a privately owned information system.224 This gap has created a demand to allow secret online surveillance, that is, the clandestine invasion of private computers with the purpose of enabling real-time surveillance and recording of any change in the stored data. Online search and surveillance was first introduced into police laws, enabling police agencies to conduct online searches in order to prevent crime, especially in connection with the combat of terrorism. In a 2008 decision, the Federal Constitutional Court severely limited this option. The Court declared that the constitution guarantees every person a fundamental right to the confidentiality and integrity of his systems of information technology.225 The state may restrict that right only insofar as is necessary to avert a concrete risk to a person’s life, health or freedom of movement, or to the existence of the state or of the population in general.226 217

20 BVerfGE 162, 227 (1966); 42 BVerfGE 212, 221 (1976). 96 BVerfGE 44 (1997). § 98, s 2, 2nd sentence CCP, which literally only applies to seizures, is applied by analogy; 28 BGHSt 206, 209 (1978); A Nack, ‘§ 105’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 16; Meyer-Goßner, ‘§ 98’ and ‘§ 105’ (n 34) marginal numbers 23 and 16. 220 96 BVerfGE 27 (1997); Meyer-Goßner ‘§ 296’ (n 34) marginal number 18a. 221 BGH, ‘Judgment of 17 February 1989’ [1989] NJW 1741, 1744; Nack (n 219) marginal numbers 21-22. 222 113 BVerfGE 29, 61 (2005); BVerfG, ‘Decision of 2 July 2009’ [2009] NJW 3225; 51 BGHSt 285, 295 (2007). 223 See section B14 above. 224 51 BGHSt 211 (2007). 225 The Federal Constitutional Court has deduced this right from the general right to develop one’s personality (Art 2, s 1 Basic law); 120 BVerfGE 274, 302-307, 313-15 (2008). 226 120 BVerfGE 274, 319-20, 327-28 (2008). 218 219

288 Germany A Federal statute on the Federal Criminal Police Agency (Bundeskriminalamt) has sought to implement this restrictive directive.227 Authority for online searches under this law is, however, limited to crime-preventive activities. The results of such preventive activities may be transferred to agencies conducting investigations of past crime only to the extent that these agencies may request such data under the rules of criminal procedural law.228 Because criminal procedure law does not provide for online computer searches, the transfer of the results of crime-preventive online searches to be used as evidence in the criminal process is not permissible.229

16. Freezing According to § 111b, s 1 and § 111c CCP, any object—including real estate and bank accounts—may be seized when there is reason to expect that it will eventually be confiscated by the court as proceeds of crime (Verfall, § 73 Penal Code) or as an instrument or product of crime (Einziehung, § 74 Penal Code). Based on that provision, the judge may, upon the application of the prosecutor, seize money from the bank account of a suspect if he has reason to believe that the suspect committed an offence that produced a large financial profit.230 The objects or sums seized under that provision must be released after six months unless the judge finds that there are ‘urgent grounds’ for extending the measure, for example, when the investigation is particularly difficult or extensive.231

17. Production Orders For the purpose of a criminal investigation, the prosecutor may demand information from any public agency; this includes Federal, State and communal authorities.232 An exception relates to public agencies involved in mail and telecommunication services.233 Due to the constitutionally protected secrecy of the mail and telecommunication (Article 10 BL), they may disclose information on the circumstances and the content of such communication only upon a judicial order in accordance with §§ 99, 100a CCP. To the extent that the police conduct (preliminary) criminal investigations on their own, they may request public agencies to provide information; they may demand such information only under exigent circumstances.234 With respect to private persons or corporations, there is no explicit authority for prosecutors to demand information. However, the prosecutor may demand the production of

227

§ 20k Bundeskriminalamtgesetz (Law on the Federal Criminal Police Agency), I BGBl 2008, 3083. § 20v, s 5, no 3 Bundeskriminalamtgesetz. Meyer-Goßner ‘§ 161’ (n 34) marginal number 18e. It is doubtful whether the results of preventive online searches can be transferred to criminal investigation agencies as clues for further investigations, as Meyer-Goßner suggests. 230 According to § 111e, s 1 CCP, freezing of assets requires a judicial order, but under exigent circumstances the prosecutor can order the measure. It must then be subjected to the judge’s review within one week. 231 § 111b, s 3 CCP. 232 § 161, s 1 CCP. 233 At present, mail and telecommunication services are no longer provided by public agencies. 234 § 163, s 1, 2nd sentence CCP. 228 229

Investigation Measures 289 any object that can be used as evidence,235 and that includes items that carry information, such as computer hard drives, CD-ROMs and written documents. It may often be more practical for the person in possession of such items to transmit the relevant information electronically, thereby obviating the seizure of the physical object that carries the information. If the person refuses to produce an item demanded as evidence, the prosecutor may seek a judicial enforcement order imposing a fine or custody on the person,236 or he may obtain a judicial order to search the relevant premises and then seize the object. Persons with a testimonial privilege may refuse to produce objects sought as evidence by the prosecutor.237 This extends, for example, to physicians and lawyers.238 Banks and their employees have no testimonial privilege and hence must produce any document or computer storage device sought by the prosecutor. The same is true for privately owned providers of telecommunication services with respect to information not covered by the secrecy of telecommunication. § 113a Telecommunication Law239 provided for an obligation on the part of such providers to store data that were necessary to identify users, such as dynamic IP numbers, and to produce such data for the purposes of criminal investigations. This provision has, however, been declared unconstitutional by the Federal Constitutional Court because it interferes disproportionately with the right to autonomy as to technologically stored data as well as with the secrecy of telecommunication.240

18. Invoking the Assistance of Experts According to § 73, s 1 CCP, the judge determines whether experts are to be called and also decides on whom to appoint as an expert. However, § 161a, s 1 CCP provides that experts are obliged to appear before the prosecutor and to present their expertise. From that latter provision, the courts have inferred that the prosecutor may also appoint experts during the investigation.241 According to internal regulations, the prosecutor should give the defence lawyer an opportunity to voice his opinion on the choice of the expert, unless it is a routine matter or involving the defence lawyer would cause undue delay.242

19. Infiltration The use of persons who secretly gather information on behalf of the police is a highly contested issue. Criminal procedure law does not regulate the use of private individuals who permanently or occasionally provide information for criminal investigations. According to the majority view, the use of such persons by the police or prosecutor is covered by

235

§ 95, s 1 CCP. § 95, s 2, 1st sentence CCP. 237 § 95, s 2, 2nd sentence CCP. 238 See § 53, s 1, no 3 CCP. 239 Telekommunikationsgesetz of 22 June 2004 (I BGBl 2004, 1190). 240 BVerfG, ‘Judgment of 24 January 2012’ [2012]NJW 1419, 1422, 1429-30. 241 L Meyer-Goßner, ‘§ 161a’ (n 34) marginal number 12; for an assessment of the consequences, see V Erb, ‘Die Abhängigkeit des Richters vom Sachverständigen’ (2009) 121 ZStW 882, 894, 913-14. 242 No 70 (1) Richtlinien für das Strafverfahren und das Bußgeldverfahren (Regulations for Criminal Procedure and the Procedure in Administrative Infraction Matters) of 1 February 1997. 236

290 Germany their general authority to conduct ‘investigations of any kind’.243 When private informers ‘interview’ suspects, they need not give them the warnings that a police officer would have to give, eg, about their right to remain silent.244 But a private informer operating on the mandate of the prosecutor or the police must refrain from using prohibited means of interrogation, eg, torture, drugs or deceit.245 The use of undercover police officers follows different rules. The prosecutor may authorise a police officer to operate under a different identity246 in any investigation of a serious crime with a statutory minimum penalty of one year or more (Verbrechen) if the offence is particularly grave or if it is likely to be repeated; the same applies to serious cases of drug and weapons trafficking or organised crime. The prosecutor may, however, resort to the use of an undercover police officer only if other measures of investigation appear futile.247 Judicial authorisation of the operation of undercover police officers is needed when the investigation concerns a particular suspect or if the undercover officer is expected to enter a private home.248 An undercover officer may then enter private homes with the consent of the owner under the guise of his assumed identity, but he must not use other forms of deceit in order to gain entry.249 The true identity of the undercover officer may be kept secret even after the termination of his activity,250 and often these officers do not appear as witnesses in court, or if they testify do not reveal their true identity.251 According to case law, undercover officers do not need to give warnings about the right to silence and to a lawyer when questioning suspects without disclosing their official function;252 but an undercover police agent may not gather information from a suspect by purposely developing and then exploiting a long-term personal relationship.253 When the use of an undercover police officer has been terminated, the persons affected, including the persons whose home the officer had entered, shall be informed of the measure if that can be done without jeopardising important interests of other persons.254 The persons affected may then submit the issue to the judge for a subsequent determination of the legality of the measure.255

243 § 161, s 1 and § 163, s 1 CCP. See 57 BVerfGE 250, 284 (1981); 32 BGHSt 115, 122 (1983); W Beulke, Strafprozessrecht, 11th edn (Heidelberg, Müller, 2010) marginal number 424; Meyer-Goßner ‘§ 161’ (n 34) marginal number 34a. Several authors claim that the use of police informers should be regulated by law; see, eg, R Hefendehl, ‘Die neue Ermittlungsgeneralklausel der §§ 161, 163 StPO: Segen oder Fluch?’ [2001] Strafverteidiger 700, 704; S Gleß, ‘§ 136a’ (n 60) marginal number 15; Wohlers, ‘§ 163a’ (n 68) marginal numbers 41-45; Roxin and Schünemann (n 22) 308. 244 §§ 136, s 1 and 163a, s 4 CCP; 40 BGHSt 211, 213 (1994); Rogall, ‘§ 136’ (n 60) marginal number 13; MeyerGoßner, ‘§ 136a’ (n 34) marginal number 4; but see contra, Gleß, ‘§ 136a’ (n 60) marginal number 41. 245 See 34 BGHSt 362, 363 (1987); 55 BGHSt 138, 144-146 (2010); Gleß, ‘§ 136a’ (n 60) marginal number 10. 246 The police officer may be given false identity papers; § 110a, s 3 CCP. 247 § 110a, s 1 CCP. 248 § 110b, s 2 CCP. 249 § 110c CCP. 250 § 110b, s 3 CCP. 251 See § 68, s 3 CCP permitting witnesses to testify under a pseudonym if revealing their identity would jeopardise their personal safety. 252 42 BGHSt 139, 145 (1996). 253 52 BGHSt 11, 16-19 (2007); 55 BGHSt 138, 144-46 (2010); Wolter; ‘§ 110a’ (n 211) marginal numbers 3a, 4. 254 § 101, s 4, no 9 CCP. 255 § 101, s 7 CCP.

Prosecution Measures 291 20. Controlled Deliveries Controlled deliveries of drugs and other contraband are not subject to special regulation under German law. Depending on the circumstances, the restrictions on the use of undercover police officers (B19 above) or on long-term observation (B11 above) may apply.

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution As soon as the prosecutor learns about the suspicion that a criminal offence has been committed, he is obliged to start an investigation.256 If there exists a suspicion of a crime but no suspect has yet been identified—as, for example, when a dead body with a shotgun wound has been found—an investigation can initially be conducted against unknown suspects. The purpose of the investigation is to determine whether an accusation should be brought against a suspect. The prosecutor’s investigation is to be neutral and shall cover both incriminating and exonerating aspects of the matter;257 it shall also extend to facts relevant to sentencing.258 If the investigation has resulted in a strong suspicion that a person is guilty of an offence, the prosecutor is, in principle, obliged to bring an accusation.259 In practice, it is frequently the police that open an investigation. Individuals who have been affected by a crime or who have learned about a suspicious incident normally turn to the police to make a report or a complaint, and the police in routine matters then conduct the necessary enquiries without even involving the prosecutor. They send the file containing the results of their investigation to the prosecutor only when they deem the case ‘resolved’.260 In conducting investigations on their own, the police rely on their authority to ‘investigate offences and to take all measures that need to be done without delay in order to avoid an obscuration of the matter;’261 they tend to ignore the Code’s exhortation to send their deliberations to the prosecutor ‘without delay’.262 Individuals have no legal remedy against the opening or continuation of an investigation, unless they can show that the continuation of an investigation is clearly arbitrary.263

256

§ 160, s 1 CCP. § 160, s 2 CCP. 258 § 160, s 3 CCP. 259 § 170, s 1 CCP. But see section C2 below. 260 See U Hellmann, Strafprozessrecht, 2nd edn (Heidelberg, Springer, 2006) 49–50; Roxin and Schünemann (n 22) 59–60. 261 § 163, s 1, 1st sentence CCP. 262 § 163, s 2, 1st sentence CCP. 263 See Federal Constitutional Court, ‘Decision of 19 December 1983’ [1984] Neue Zeitschrift für Strafrecht 228; Federal Constitutional Court, ‘Decision of 2 October 2003’ [2004] Neue Zeitschrift für Strafrecht 447. For opinions to the contrary, see V Erb, ‘§ 160’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2008) marginal numbers 67a-67e; Wohlers, ‘§ 160’ (n 68) marginal numbers 100-102. 257

292 Germany 2. Unilateral Disposal of the Case If the prosecutor, at the end of the investigation, finds that the suspect did not commit a crime, that there are procedural issues barring a trial (eg, a statute of limitation precludes further proceedings), or that there is insufficient evidence to bring the case to trial with a reasonable prospect of conviction, he will dismiss the case.264 It is for the prosecutor to assess, based on his professional experience, whether there is ‘sufficient suspicion’ for filing an accusation in any given case. In making this decision, the prosecutor also takes the admissibility of relevant evidence into account. The prosecutor may take a case to trial even where he is not fully convinced of the suspect’s guilt as long as he thinks that the court will be able to resolve remaining doubts at the trial.265 The suspect is informed of the dismissal if he has been interrogated or has requested to be informed.266 The prosecutor may at any time reopen a case dismissed for lack of sufficient evidence, and the suspect has no legal remedy against that decision.267 A victim who has made a complaint to the police or the prosecutor has the right to be informed when the prosecutor has dismissed his case for lack of sufficient cause (on legal or evidentiary grounds).268 The prosecutor shall explain the reasons for dismissing the case in writing. The victim may then, within two weeks, file a complaint with the chief prosecutor at the State Court of Appeals.269 If the chief prosecutor, after reviewing the file, comes to the conclusion that the dismissal was not well-founded, he will order the local prosecutor to resume the investigation or to file an accusation. Otherwise, the chief prosecutor will reject the victim’s appeal. The victim may file a further appeal against that decision with the State Court of Appeals. This appeal must be written by a lawyer and must set out in detail the prior proceedings and their result as well as the alleged grounds for overturning the prosecutor’s decision to dismiss, including the relevant evidence.270 If the State Court of Appeals finds that the evidence of the suspect’s guilt is so strong that a trial is warranted, it demands the prosecutor to file an accusation.271 In that—very rare—case, the victim may join the prosecution as a subsidiary prosecutor.272 Even if there is sufficient evidence of the suspect’s guilt, the prosecutor may dismiss the case if only a less serious offence with a minimum penalty below one year’s imprisonment (Vergehen) is involved, the suspect’s guilt—if established—would be minor, and there exists no public interest in prosecution.273 For that disposition, the prosecutor needs the

264

§ 170, s 2, 1st sentence CCP. Wohlers, ‘§ 170’ (n 68) marginal number 25; Meyer-Goßner, ‘§ 170’ (n 34) marginal number 1. 266 § 170, s 2, 2nd sentence CCP. 267 Graalmann-Scheerer (n 31) marginal numbers 50-51; Wohlers (n 265) marginal number 61. 268 § 171 CCP. 269 § 172, s 1 CCP. 270 § 172, s 3 CCP. 271 § 175 CCP. Some State Courts of Appeals have demanded the prosecutor to resume the investigation in order to gather further evidence; see, eg, Court of Appeals of Koblenz, ‘Judgment of 5 September 1994’ [1995] Neue Zeitschrift für Strafrecht 50; State Court of Appeals of Köln, ‘Judgment of 14 February 2003’ [2003] Neue Zeitschrift für Strafrecht 682; see further K Graalmann-Scheerer, ‘§ 175’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal numbers 16-17. For the contrary view, see Wohlers, ‘§ 175’ (n 68) marginal number 2; K Schmid, ‘§ 175’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 3. 272 § 395, s 2, no 2 CCP. 273 § 153, s 1, 1st sentence CCP. 265

Prosecution Measures 293 consent of the court that would have jurisdiction for trying the case; but the prosecutor may dismiss the case without judicial involvement if the offence in question does not carry a minimum penalty beyond the statutory minimum of five-day fines.274 The victim has no remedy against this form of discretionary dismissal.275 Beyond this frequently used option of dismissing minor cases, there are other possibilities of discretionary dismissal in cases where the suspect’s guilt might be established at trial. The prosecutor may, for example, dismiss a case if the offence has been committed abroad or the suspect has already been punished abroad for an offence committed in Germany,276 if the court would have authority to dispense with punishment,277 or if the suspect has already been or is expected to be sentenced to a significant penalty for another offence, and the present offence is expected to lead to a significantly less severe penalty.278 In none of these instances may the victim appeal against dismissal.

3. Multilateral Disposal of the Case According to § 153a CCP, the prosecutor may dismiss a case in exchange for certain activities on the part of the suspect. This option exists in any investigation for a less serious offence (Vergehen),279 unless the suspect’s conduct has been especially blameworthy. The prosecutor may impose certain conditions on the suspect, including the payment of a sum of money to the victim, the state or a charitable organisation, or doing community service.280 If the suspect fulfils the conditions, the prosecutor dismisses the case. This solution requires the consent of the suspect as well as of the court that would have jurisdiction for trial; the court’s approval is not needed if the offence in question does not carry a minimum penalty beyond the statutory minimum of five day fines.281 Because the suspect is required to make a payment with respect to his involvement in the offence, the prosecutor should offer conditional dismissal only if there exists sufficient suspicion282 for bringing an accusation.283 The amount of money that the prosecutor can demand to be paid as a condition of dismissal is not limited by statute and is often subject to negotiation between the prosecutor and the defence lawyer. If the suspect has fulfilled the conditions and the prosecution has been dismissed, the prosecutor may resume the investigation 274 § 153, s 1, 2nd sentence CCP. Many frequently committed offences do not carry an enhanced minimum penalty; this applies, for example, to simple larceny (§ 242 Penal Code), fraud (§ 263 Penal Code), non-aggravated assault (§ 223 Penal Code) and criminal trespass (§ 123 Penal Code). 275 See §172, s 2, 3rd sentence CCP. 276 § 153c, ss 1 and 2 CCP. 277 § 153b CCP. This applies, for example, to instances where the offender has been seriously harmed by his own offence (§ 60 Penal Code), where he has achieved a reconciliation with the victim (§ 46a Penal Code) or where he has provided information on another offender (§ 46b, s 1 Penal Code). 278 § 154, s 1 CCP. 279 Vergehen are all offences with a statutory minimum penalty of less than one year’s imprisonment (§ 12, s 2 Penal Code). 280 § 153a, s 1, 2nd sentence CCP lists certain possible conditions but leaves open the possibility of ‘inventing’ others; cf Beulke (n 36) marginal numbers 69, 70. 281 § 153a, s 1, 7th sentence CCP. 282 See section C1 above. 283 E Weßlau, ‘153a’ in J Wolter (ed), SK-StPO, 4th edn (Cologne, Heymanns, 2011) marginal number 25; Meyer-Goßner ‘§ 153a’ (n 34) marginal number 2. Practitioners do not always adhere to that standard but use conditional dismissal in legally doubtful cases; see F Saliger, ‘Grenzen der Opportunität: § 153a StPO und der Fall Kohl’ [2005] Goltdammer’s Archiv für Strafrecht 155, 172–173.

294 Germany only if it later turns out that the suspect’s conduct meets the definition of a serious offence (Verbrechen) rather than a less serious offence (Vergehen), as had been assumed previously.284 This solution is attractive to the suspect because he will not be convicted of a crime; conditional dismissal does not even require an acceptance of guilt and leaves the presumption of innocence intact. On the other hand, the suspect does not get off without a sanction, although he is not put to trial.285 It is for that reason that conditional dismissal has become a rather popular resolution of criminal cases, even though it is doubtful whether the quid pro quo involved can be reconciled with the presumption of innocence,286 and there may be undue pressure upon suspects to agree to conditions even though they might have stood a good chance to be acquitted if their cases had gone to trial.287 The victim has no right to be heard before an offer of conditional dismissal is made, and he has no right to appeal. If the prosecutor requires the suspect to seek reconciliation with the victim,288 the latter can refuse to cooperate but cannot thereby block conditional dismissal because the condition is the suspect’s serious effort, not the actual achievement of reconciliation.289 4. Reopening of the Case Closed on Different Grounds With the exception of investigations closed under § 153a, s 1 CCP,290 the prosecutor may at any time resume an investigation after it has been closed for lack of sufficient evidence to bring an accusation or on discretionary grounds. 5. Committing to Trial and Presenting the Case in Court If the prosecutor finds that there is sufficient reason to bring a case to trial (ie, a legal basis and sufficient evidence for conviction), he files a written accusation (Anklageschrift) with the court that has jurisdiction over the case. The accusation lists the defendant, his relevant conduct, the offence he is alleged to have committed, and the relevant pieces of

284 § 153a, s 1, 5th sentence CCP. For example, if a case regarded as simple assault (§ 223 Penal Code) was dismissed upon the suspect’s payment of damages to the victim, the investigation can be resumed if it becomes known that the suspect committed the assault in order to take the victim’s money (attempted robbery, §§ 249, 22 Penal Code). 285 Conditional dismissal is still possible after the prosecutor has filed a formal accusation and the trial has started. In that situation, it is the trial court that makes the offer of dismissal, with the prosecutor’s consent (§ 153a, s 2 CCP). 286 Although the suspect can still claim that he has not been convicted and therefore must be presumed innocent, the payment imposed can have no other purpose but to sanction him for the offence, hence he is in fact punished for a crime without having been convicted. Commentators have termed the payments under § 153a CCP ‘special non-criminal sanctions’; Beulke (n 36) marginal number 9; Meyer-Goßner ‘§ 153a’ (n 34) marginal number 12. 287 For incisive criticism of the concept and practice of conditional dismissal, see Weßlau (n 283) marginal numbers 2-10; see also W Beulke, ‘§ 153a’ in E Löwe, W Rosenberg and others (eds), vol 5, Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2008) marginal numbers 11-13. 288 § 153a, s 1, 2nd sentence, no 5 CCP. 289 Beulke (n 287) marginal number 61. 290 See section C3 above.

Evidence 295 evidence.291 In non-petty cases, the accusation also contains a summary of the results of the investigation.292 Along with the accusation, the prosecutor submits to the trial court the dossier of the investigation. The defendant receives a copy of the written accusation.293 His lawyer may at this stage inspect the prosecution file without restriction.294 The trial court then reviews the materials offered by the prosecutor and may—but rarely does—hold a hearing and take evidence.295 Normally, the court decides on the basis of the written materials whether there is sufficient cause to hold a trial. In the great majority of cases, the court—deciding without lay judges—sets the case for trial.296 The presiding judge is then responsible for making certain that all relevant evidence is available at the trial.297 Both the prosecutor and the defendant may summon further witnesses.298 At the trial, the prosecutor represents the position of the state. At the beginning of the trial, he reads out the written accusation without the summary of the results of the investigation.299 The defendant and witnesses are mainly questioned by the presiding judge,300 but the prosecutor is entitled to asking additional questions and to commenting on each piece of evidence.301 The prosecutor may also move that the court take additional evidence, and the court may refuse to hear additional witnesses nominated by the prosecutor (or the defendant) only if the proposed testimony would be evidently irrelevant or redundant.302 After the conclusion of the taking of evidence, the prosecutor is obliged to deliver a statement summarising the result of the trial from his perspective and requesting a disposition.303 Because the prosecutor is an objective officer of the law, he may demand the acquittal of the defendant; but the court is not bound by such a request.

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence Because the finding of the truth is one of the main purposes of the German criminal process, the legislature and the courts are reluctant to exclude potentially relevant evidence from consideration by the trial court. The courts emphasise that any exclusion of relevant evidence restricts the leading principle governing the criminal process, ie, that the court should search for the truth and should extend the taking of evidence to all relevant facts

291

§ 200, s 1 CCP. § 200, s 2 CCP. The summary is dispensable if the accusation is filed with a single judge in local court. 293 § 201 CCP. 294 § 147, ss 1 and 2 CCP. 295 §§ 202 and 202a CCP. 296 If the court refuses to set the case for trial, the prosecutor may file an appeal against that decision with the court of second instance; § 210, s 2 CCP. The defendant has no legal recourse against the trial court’s decision to set the case for trial (§ 210, s 1 CCP). 297 § 214 CCP. 298 §§ 214, ss 3 and 220 CCP. A person summoned by the defendant is obliged to appear in court only if the defendant has offered him in advance the appropriate fee for witnesses or experts; § 220, s 2 CCP. 299 § 243, s 3 CCP. 300 § 238, s 1 CCP. 301 § 240, s 2 and § 257, s 2 CCP. 302 § 244, s 3 CCP. 303 § 258, s 1 CCP. 292

296 Germany and pieces of evidence; evidence should therefore be excluded only if that is demanded by statute or justified by overriding important reasons in the individual case.304 The Code of Criminal Procedure contains only very few exclusionary rules. The most prominent rule concerns evidence obtained in violation of § 136a CCP, prohibiting the use of certain methods of interrogation interfering with the autonomy of the person, including physical or psychological maltreatment, hypnosis, deceit and illicit threats and promises. Any information stemming from questioning where such methods were employed may not be used as evidence, and that applies even where the individual affected consents to the use of his statement.305 Other statutory exclusionary rules concern evidence obtained in violation of the constitutional protection of ‘core’ privacy. If surveillance of conversations in a home has led to the recording of a conversation between spouses or close relatives and the words spoken do not concern a criminal offence, the recording must be deleted and may not be used as evidence.306 The same applies where a legitimate surveillance measure has gathered information that is protected by the testimonial privilege of a lawyer, physician or member of the clergy.307 Beyond these statutory provisions, the courts have established exclusionary rules. For example, where a suspect has been interrogated by a judge, prosecutor or police officer without having first received the proper warnings about his right to remain silent and to consult a lawyer, the ensuing statements may not be used as evidence against him.308 Similarly, where a witness has not been informed of the right to withhold testimony because he is a spouse or relative of the suspect,309 or because he might incriminate himself or a relative by testifying,310 his statements may not be used as evidence.311 In other instances, the courts do not follow a clear rule but make the admissibility of evidence depend on the circumstances of the individual case.312 The judges weigh the importance of the case and of the evidence against the gravity of the violation, including the purpose of the rule that had been violated, and mostly come out in favour of admissibility unless there was an intentional or very serious violation.313 It should be noted that ‘inadmissibility’ of evidence does not very well describe the concept of exclusion under German law. Since it is the court that takes evidence at the trial, the decisive question is not whether evidence is ‘admitted’, but whether the court can use it as a basis for its judgment. If a piece of evidence has been introduced at the trial and it later turns out that this item needs to be ‘excluded’, that means that the court must ‘forget

304 See 54 BGHSt 69, 87 (2009); 56 BGHSt 127, 132-133 (2011); see also Federal Constitutional Court, ‘Decision of 15 October 2009’ [2010] NJW 287. 305 § 136a, s 3, 2nd sentence CCP. This provision applies to the interrogation of suspects as well as witnesses (see § 69, s 3 CCP). 306 § 100c, s 5, 3rd sentence CCP. 307 § 160a, s 1, 2nd sentence CCP. 308 38 BGHSt 214, 218-24 (1992); 38 BGHSt 372 (1992); 42 BGHSt 15 (1996). 309 See § 52 CCP. 310 See § 55 CCP. 311 14 BGHSt 159 (1960); State Court of Appeals of Celle, ‘Judgment of 7 February 2001’ [2002] Neue Zeitschrift für Strafrecht 386; Meyer-Goßner ‘§ 55’ (n 34) marginal number 17; Rogall, ‘§ 55’ (n 60) marginal number 79. According to the majority view, the statement of a witness who had not been warned of his right not to incriminate himself may be used against the accused, because the purpose of the warning is not to protect the accused but the witness; 11 BGHSt 213 (1958); Beulke (n 243) marginal number 464. 312 See 46 BGHSt 189, 195-96 (2000); 47 BGHSt 172, 179-80 (2001); 51 BGHSt 285 (2007). 313 See section B14 above for a discussion on the admissibility of evidence discovered as a result of an illegal search.

Evidence 297 about’ that piece of evidence when it determines the judgment and must not refer to it in the oral or written explanation of the judgment.

2. Admissibility of Written Reports German law does not have a general rule against admitting hearsay evidence, and written documents are generally admissible evidence. In order to be properly introduced, documents must normally be read aloud at the trial; an alternative is for all judges and parties to read the documents privately between trial sessions.314 Under the so-called principle of immediacy (Unmittelbarkeitsprinzip), there exists a preference for direct witness testimony over surrogate evidence, especially protocols of prior questioning of a witness. In principle, if a person has perceived a relevant fact, that person must testify at the trial, and his testimony may not be replaced by reading the protocol of a prior interrogation or by a written statement prepared by the witness.315 This rule has several exceptions, however. It does not apply if the witness has died or is otherwise precluded from appearing at the trial, or if all participants at the trial consent to the use of a written surrogate or a video recording of a prior statement.316 Certain expert statements, for example doctors’ reports on the evaluation of blood samples, may always be read in court, thus saving the expert the trouble of appearing at the trial.317 Moreover, the principle of immediacy only precludes the reading of interrogation protocols; it does not prohibit the questioning of the interrogating police officer or prosecutor as a (hearsay) witness.318 However, the court’s obligation to seek the truth, as well as the defendant’s confrontation right under Article 6, s 3(d) ECHR, set limits to any replacement of direct witness testimony by an indirect representation of what the witness had said earlier. If the original witness is available, the court may, in the interest of obtaining the ‘best evidence’ for finding the truth, be obliged to question the witness at the trial rather than rely on an available exception of the principle of immediacy.319

3. Status of Evidence Obtained in Another Member State The question of whether evidence obtained abroad is admissible is determined by German law.320 Although Article 4 of the EU Convention on Mutual Assistance in Criminal Matters

314

§ 249 CCP. § 250 CCP. §§ 251 and 255a, s 1 CCP. 317 § 256 CCP. 318 The majority view does not read § 250, 1st sentence CCP (‘If the proof of a fact is based on what a person has perceived, that person shall be questioned at the trial’) as ruling out the interrogation of a hearsay witness rather than the original witness; 17 BGHSt 382 (1962); G Sander and G Cirener, ‘§ 250’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2009) marginal numbers 25-27. But see P Velten, ‘§ 250’ in J Wolter (ed), SK-StPO, 4th edn (Cologne, Heymanns, 2011) marginal numbers 9, 10 (interpreting para 250, 1st sentence CCP as a ‘best evidence’ rule). 319 Velten (n 318) marginal number 19; Meyer-Goßner, ‘§ 255’ (n 34) marginal number 8. 320 W Wohlers, ‘Zur Verlesbarkeit ausländischer richterlicher Vernehmungsprotokolle, wenn der vernommene Beschuldigte zuvor nicht auf sein Schweigerecht hingewiesen worden war’ [1995] Neue Zeitschrift für Strafrecht 45; M Böse, ‘Die Verwertung im Ausland gewonnener Beweismittel in deutschen Strafverfahren’ (2002) 114 ZStW 148, 162. 315 316

298 Germany between the Member States of the European Union321 provides that, where mutual assistance is afforded, the requested state shall comply with the formalities and procedures expressly indicated by the requesting state, German courts do not expect foreign authorities to perfectly apply German procedure law. German courts therefore tend to admit evidence taken abroad if the procedure of taking the evidence complied with the lex loci.322 Evidence will not be admitted, however, if the foreign procedure violated basic rules of German procedure law, for example the prohibition of torture and other illicit means of interrogation (§ 136a CCP).323

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence The presumption of innocence is not stated expressly in German legislation. It has become part of German law only by the adoption, in 1953, of the European Convention on Human Rights into domestic German law. The Federal Constitutional Court regards the presumption of innocence as one aspect of the principle of Rechtsstaat (a state built on the rule of law), and has accorded it the rank of a constitutional norm.324 The Court has linked the presumption of innocence to other high-ranking constitutional concepts, such as the principle of culpability as a requirement for punishment, and human dignity, which is the supreme value protected by Article 1 BL.325 Yet the question remains what the presumption of innocence may mean in the German system, where neither the prosecution nor the defence carry a burden of proof. The assumption that a person accused of a crime is innocent can be overcome only if the court is ‘convinced’ that the defendant is guilty and renders a judgment of guilt. But the presumption of innocence itself does not set a particular standard of proof that is required for a finding of guilt. The presumption does preclude state officials from verbally declaring a suspect guilty before a judgment has been rendered,326 and it prohibits factual punishment before conviction. For example, § 73d Penal Code provides that the court, when sentencing a defendant for a relevant offence, may declare forfeited any item belonging to the defendant ‘if the circumstances justify the assumption that these items have been obtained for or through the commission of a criminal offence’. Since forfeiture is a criminal sanction

321 Council Act of 29 May 2000 establishing in accordance with Art 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union [2000] OJ C197/01. 322 See, eg, 7 BGHSt 15, 16 (1954); Federal Court of Justice, ‘Judgment of 10 August 1994’ [1994] NJW 3364; 42 BGHSt 86, 90-93 (1996); S Gleß, ‘Die ‘Verkehrsfähigkeit von Beweisen’ im Strafverfahren’ (2003) 115 Zeitschrift für die gesamte Strafrechtswissenschaft 131, 134; FP Schuster, Die Verwertbarkeit im Ausland gewonnener Beweise im deutschen Strafprozess (Berlin, Duncker & Humblot, 2006) 180 ff. 323 See Federal Court of Justice, ‘Judgment of 4 March 1992’ [1992] Neue Zeitschrift für Strafrecht 394 (concerning testimonial privilege of fiancée); State Court of Appeals of Hamburg, ‘Judgment of 14 June 2005’ [2005] NJW 2326, 2329; K Ambos, ‘Die transnationale Verwertung von Folterbeweisen’ [2009] Strafverteidiger 151, 158. 324 74 BVerfGE 358, 370 (1987). 325 74 BVerfGE 358, 371 (1987). 326 See 74 BVerfGE 358, 374-375 (1987).

The Rights of the Suspect/Defendant During Investigation and Prosecution 299 for crimes culpably committed, forfeiture requires not just a ‘justified assumption’ but full proof that the items in question were indeed acquired through a criminal offence.327 In the course of the criminal process, no measure may be imposed on a suspect merely on the assumption that he is in fact guilty. In that regard, the provision that a person suspected of a particularly serious crime may be taken into pre-trial custody without any further reason (§ 112, s 3 CCP) is dubious because it seems to be based on the assumption that the person has in fact committed the offence and therefore needs to be placed in custody.328 In sum, it can be said that the presumption of innocence precludes the state from imposing onerous measures on a person before conviction unless the imposition of these measures can rationally be explained without assuming guilt; and it obliges the state to organise the criminal process such that it does not impose on suspects hardships that cannot be justified with respect to an innocent person.329

2. The Right of the Defence to Undertake Investigative Acts in Their Own Right The suspect is free to conduct his defence in any way he sees fit. This includes the right to take investigative measures on his own, or through his lawyer. The defendant may, for example, employ an expert or a private detective in order to search for exonerating evidence,330 and he is not precluded from talking to witnesses. However, neither the defendant nor his lawyer may compel a witness to talk to them, nor may they enter private premises without the owner’s permission in order to search for evidence. The suspect and his lawyer must also refrain from putting pressure on witnesses and from suggesting false testimony to them; if they do, they may be criminally liable for instigation of false testimony331 or, in the case of a lawyer, of (attempted) interference with the imposition of criminal punishment.332

3. The Right to Legal Assistance A suspect may at any time avail himself of the assistance of a lawyer.333 The lawyer has the right to communicate with the suspect or defendant without supervision, even when the suspect is in pre-trial custody.334 The lawyer may attend any interrogation of the suspect

327

40 BGHSt 371 (1994). See 19 BVerfGE 342, 350 (1965) and the discussion in section B5 above. For a thorough treatment of the presumption of innocence, see KF Stuckenberg, Untersuchungen zur Unschuldsvermutung (Berlin, de Gruyter, 1998). 330 46 BGHSt 1, 4 (2000) (questioning of witnesses); K Lüderssen and M Jahn, ‘§ 137’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2007) marginal numbers 139-40; Wohlers, ‘§ 137’ (n 68) marginal number 57-59. 331 §§ 153 and 26 Penal Code. 332 § 258 Penal Code; Cf 38 BGHSt 345 (1992); 46 BGHSt 53 (2000). 333 § 137 CCP. 334 § 148 CCP. 328 329

300 Germany conducted by a judge or prosecutor.335 The Code of Criminal Procedure does not, however, provide for a lawyer’s right to be present when the police question his client.336 There is no general right for indigent suspects to have a lawyer appointed free of charge. The Code of Criminal Procedure provides that a defendant must have a lawyer only if the case concerns a serious charge or if the defendant is especially restricted in his ability to conduct his own defence (so-called notwendige Verteidigung, necessary defence).337 If either of these conditions is met, the presiding judge of the trial court appoints a lawyer for the defendant regardless of whether the defendant wishes to have one.338 The lawyer’s fees will be paid by the state (only) if the defendant is eventually acquitted or if he is too poor to pay the lawyer without jeopardising his or his family’s financial welfare.339 If the above-mentioned conditions for appointing a lawyer are met, the presiding judge normally appoints a lawyer as soon as the prosecutor has filed a formal accusation.340 However, the prosecutor is obliged to apply for the appointment of a lawyer even during the investigation as soon as it appears that the defence will be necessary in accordance with § 140 CCP, especially if the complexity of the investigation makes it necessary for a lawyer to assist the suspect.341 One such situation is a judicial interrogation of a crucial witness where a lawyer is needed to represent the defendant’s interests.342

4. The Right to have Another Person Informed About One’s Arrest Any person who has been placed under provisional arrest by the police or the prosecutor, or who has been arrested on the basis of a judicial order of pre-trial detention, has the right to inform a relative or a person of his confidence of the fact of his arrest.343 This right may be restricted if the communication between the arrested suspect and the other person would jeopardise the purpose of the investigation; for example, the arrestee may be prohibited from writing to a person who is suspected of being a co-perpetrator.344 Independently of the right of the arrestee to inform someone of his arrest, the judge is obliged to inform a relative or a person of the arrestee’s confidence if the judge issues an order of pre-trial detention after hearing the suspect.345 The judge may select the

335

§§ 168c and 163a, s 3 CCP. § 163a, s 4 CCP, dealing with police questioning, does not refer to § 168c CCP, which guarantees the lawyer’s right to be present at a judicial interrogation. It is an open question whether this restriction is in accordance with the case law of the ECtHR, especially Salduz v Turkey App no 36391/02 (ECtHR, 27 November 2008); see R Esser, ‘Art 6’ in E Löwe, W Rosenberg and others (eds), vol 11 ‘EMRK’, Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2012) marginal numbers 605-607 (arguing that ECtHR case law provides for the suspect’s right to have his lawyer present during police interrogation). 337 § 140, s 2 CCP. These conditions are met, for example, if the defendant is charged with a serious crime (Verbrechen), if he is in pre-trial detention, or if he may be found to be insane (§ 140, s 1 CCP). 338 § 141, s 1 CCP. 339 § 52, s 2 Rechtsanwaltsvergütungsgesetz (Law on the Remuneration of Lawyers) of 5 May 2004 (I BGBl 2004, 718). 340 § 141, s 1 CCP. 341 § 141, s 3 CCP. 342 See 46 BGHSt 93 (2000); L Meyer-Goßner ‘§ 141’ (n 34), marginal note 5. 343 §114c, s 1 and § 127, s 4 CCP. 344 J Graf, ‘§ 114b’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 9. 345 Art 104, s 4 BL, § 114c, s 2 CCP. 336

The Rights of the Suspect/Defendant During Investigation and Prosecution 301 person to be informed, but he should follow the request of the arrestee if possible.346 The communication can be by e-mail or telephone. The judge is obliged to inform a person even against the will of the arrestee; the purpose of this rule is to make certain that no one disappears without notification to his family or friends.347 Arrestees with a foreign citizenship must be informed of their right, under Article 36, s 1(b) of the Vienna Convention on Consular Relations, to have the consulate of their home country informed of their arrest.348

5. The Right to Submit Written Statements The suspect may at any time submit a written statement, even if he decides not to submit to questioning by the police or the judge. At the beginning of any interrogation, the suspect shall be advised of the right to submit a written statement instead of or in addition to any oral statement he may make.349 This information need not be given if a written declaration is inadvisable, for example, because the suspect is evidently unable to express himself in writing.350

6. The Right to Ask for a Special Act of Investigation The suspect may at any time request the prosecutor to take evidence that might exonerate him. At his first interrogation, the suspect shall be advised of this right.351 However, the prosecutor is obliged to follow up on a request to take evidence only if he deems the evidence suggested by the suspect to be of significance.352 In practice, suspects and defence lawyers rarely request the prosecutor to take evidence on their behalf, because their requests can easily be dismissed;353 and if they are granted, the police might elicit from the nominated witness information that proves less favourable than the defence had anticipated.354 If the suspect is questioned by a judge, he may request that the judge take additional evidence. The judge is obliged to do so only if he deems the evidence relevant and if either the evidence may be lost unless taken immediately, or taking the evidence may provide grounds for releasing the suspect from arrest or detention.355 Beyond the situation of a judicial interrogation of the suspect, the suspect or his lawyer cannot obtain any judicial act of investigation before the prosecutor has filed an accusation. 346

Meyer-Goßner, ‘§ 114c’ (n 34) marginal number 4. Paeffgen, ‘§ 114c’ (n 100) marginal number 10, 11. § 114b, s 2, 3rd sentence CCP. Any violation of this information right must be taken into account if the defendant later claims that certain evidence obtained while he was detained should be inadmissible; Federal Constitutional Court, ‘Decision of 8 July 2010’ [2011] NJW 207, 209-10. 349 § 136, s 1, 4th sentence CCP. 350 Gleß (n 60) marginal number 52; Meyer-Goßner, ‘§ 136’ (n 34) marginal number 12. 351 § 136, s 1, 3rd sentence CCP. 352 § 163a, s 2 CCP. 353 The suspect has no recourse to a judge if the prosecutor dismisses his request; Griesbaum (n 68) marginal numbers 8, 9. 354 The defence lawyer does not have the right to be present when the evidence suggested by him is taken. Cf O Klemke and H Elbs, Einführung in die Praxis der Strafverteidigung, 2nd edn (Heidelberg, CF Müller, 2010) marginal number 403. 355 § 166 CCP. 347 348

302 Germany When an accusation has been filed and a copy of it sent to the defendant, the presiding judge informs the defendant that he may ask for the taking of evidence in the ‘intermediate’ phase where the trial court decides whether to open a trial.356 But the trial court has unreviewable discretion whether to follow up on any request for taking evidence at this stage.357 For the defence, it is often tactically advisable to request the taking of evidence only at the trial. At that stage, defence requests, especially for hearing additional witnesses, are binding on the court unless the evidence sought is inadmissible, or evidently redundant or irrelevant.358

7. The Right to be Informed that his Statements may be Used as Evidence At the beginning of any questioning, the suspect shall be informed that, according to the law, he has the right to respond to the accusation or to remain silent.359 The judge, prosecutor or police officer conducting the questioning may advise the suspect of possible advantages of making a statement, but he must refrain from trying to influence the suspect’s choice.360 The law does not provide for a specific warning that anything the suspect says may be used as evidence.

8. The Right to Require a Precise Wording of his Statements and the Right to Full and Accurate Recording of the Statement A judge or prosecutor who questions the suspect is obliged to prepare a protocol of the interrogation.361 The protocol does not normally contain a verbatim record of the suspect’s statements, but the judge or prosecutor will appropriately summarise the statement.362 At the end of the questioning, the protocol shall be read to the suspect or presented to him for his perusal and approval.363 The suspect is expected to sign the protocol; if he refuses to do so, the grounds for his refusal are to be noted in the protocol.364 It is possible but not necessary to make an audio tape recording of the questioning.365 In that case, the recording has to be transcribed, and the transcription is the protocol of the interrogation.366 The audio tape will be kept as supporting evidence.367

356

§ 201, s 1, 1st sentence CCP. § 201, s 2 CCP. 358 § 244, s 3 CCP. 359 § 136, s 1, 2nd sentence CCP. 360 Gleß (n 60) marginal number 34. 361 §§ 168 and 168b, s 2 CCP. The judge may ask a clerk to assist him in preparing the protocol. 362 Erb, ‘§ 168a’ (n 263) marginal numbers 13, 14. 363 § 168a, s 3, 1st sentence CCP. 364 § 168a, s 3, 3rd sentence CCP. 365 §168a, s 2 CCP. A video recording of the suspect’s interrogation is not specifically provided for by law and therefore requires the suspect’s consent: Ignor and Bertheau, ‘§ 58a’ (n 90) marginal number 10. 366 § 168a, s 2, 2nd sentence CCP. 367 On the relationship between a video recording of an interrogation and the written protocol, see Erb, ‘§ 168a’ (n 263) marginal numbers 18a-18c. 357

The Rights of the Suspect/Defendant During Investigation and Prosecution 303 At the trial, any party may request that the exact formulation of a statement be noted in the protocol if that formulation is of decisive relevance. It is for the court to decide on such requests;368 and an appeal may not be based on the court’s denial to record the statement verbatim.369

9. The Right to Refer to Documents During Interview In principle, the suspect may refer to any source during questioning. Even if the interrogator denies the suspect’s request to interrupt the questioning for the suspect to consult notes or other written sources, the suspect has the option of refusing to answer any (further) questions until he has been given an opportunity to refer to these sources. The suspect may also read from a written statement rather than answering questions.

10. The Right to Consult Relevant Legal Acts The same applies to recourse to legal information.

11. The Right to be Informed About Possibilities of Reconciliation with the Victim The court and the prosecutor shall at all times during the proceedings consider the possibility of promoting a reconciliation between the suspect and the victim.370 Such reconciliation can lead to a reduced sentence for the offender, or in less serious cases even to dispensing with any criminal sanction.371 In cases that lend themselves to victim/ offender reconciliation,372 the suspect shall be informed of this option even at his first interrogation.373

12. The Right to be Informed About the Place of Detention The right to have a relative or other person of confidence informed about one’s arrest (E4 above) includes information about the place of arrest.374

368

§ 273, s 3 CCP. Meyer-Goßner, ‘§ 273’ (n 34) marginal number 36. 370 § 155a CCP. 371 § 46a Penal Code. If the sentence expected without reconciliation would be not more than one year of imprisonment, the prosecutor may dismiss the case if a reconciliation has been achieved or the suspect has compensated the victim at considerable expense to himself (§ 153b CCP in connection with § 46a Penal Code). 372 If the suspect denies involvement in the crime, or if the victim refuses any contact with the suspect, the case does not lend itself to reconciliation: Gleß (n 60) marginal number 53. 373 § 36, s 1, 4th sentence (in connection with § 163a, s 4) CCP. 374 Cf Paeffgen, ‘§ 114c’ (n 100) marginal number 13. 369

304 Germany 13. The Right to be Informed About the Charges At the beginning of each interrogation, the suspect shall be informed what act(s) he is suspected of.375 This information shall extend to the approximate time and place and the conduct that is subject to the investigation. Only a minority of authors would require that the suspect also be informed about the main items of evidence.376 If the questioning is done by a judge or prosecutor, the suspect must also be informed about the legal provisions that may be applicable.377 The purpose of the information is to enable the suspect to defend against the allegations and to save him from unconsciously incriminating himself of crimes that have not yet come to the attention of law enforcement officials. Therefore, the information must be accurate and at the same time comprehensible to the suspect.378 The fact that the suspect must be informed about the charges against him at the beginning of each interrogation does not necessarily mean that he will know about these allegations from the very start of the investigation: the prosecutor or police are not obliged to question the suspect early in an investigation; the law only requires that he should be given an opportunity to be heard before the end of the investigation.379

14. Access to the File During Pre-Trial Proceedings In principle, the defence lawyer has the right to inspect the prosecution file at any time during pre-trial proceedings.380 However, the prosecutor may limit or suspend that right until the investigation has been closed, if prior inspection would jeopardise the purpose of the investigation, ie, the finding of the true facts of the case.381 This limitation can be explained by the fact that the lawyer may share with the suspect any information he has obtained from inspecting the file. In fact, most lawyers make copies of the file which they then read together with or leave with the suspect. Since any part of the file open to inspection by the lawyer will also become known to the suspect, the prosecutor will keep the file closed as long as he fears that the suspect may use the information in order to obstruct justice, eg, to influence or threaten witnesses. There are, however, certain parts of the file that the prosecutor may not at any time withhold from the defence lawyer, namely, the protocols of any interrogation of the suspect or of any judicial interrogation, and any expert opinion.382 Moreover, if the suspect is in pre-trial detention or the prosecutor has applied for detention, the defence lawyer must be given access to information that is necessary to

375

§§ 136, s 1, 1st sentence and 163a, s 4, 1st sentence CCP. This view is held, eg, by Gleß (n 60) marginal number 22; but see, for the majority position, Rogall (n 244) marginal number 38; H Diemer, ‘§ 136’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 8. 377 § 136, s 1, 1st sentence and § 163a, s 3, 2nd sentence CCP. 378 Gleß (n 60) marginal numbers 20-21, 24. 379 § 163a, s 1 CCP. If the prosecutor dismisses the case he does not need to hear the suspect. 380 § 147, s 1 CCP. 381 § 147, s 2 CCP. 382 § 147, s 3 CCP. 376

The Rights of the Suspect/Defendant During Investigation and Prosecution 305 defend against a pre-trial detention order.383 In these cases, any refusal of inspection by the prosecutor is subject to immediate judicial review.384 If the suspect has no lawyer, he has a right to receive information and copies from the file385 to the extent that this information is necessary for an adequate defence, the purpose of the investigation will not be jeopardised, and the protected rights of third parties do not preclude the opening of the file.386

15. The Right to a Translator for the Suspect During the Pre-Trial Procedure Suspects who do not sufficiently speak German have a right to an interpreter and to have documents translated, as far as this is necessary for the exercise of their procedural rights.387 The right to an interpreter extends to pre-trial proceedings; an interpreter must be provided not only for interrogations of the suspect but also for the necessary communication between the suspect and his defence lawyer, regardless of whether the lawyer has been hired by the suspect or appointed by the judge.388 The extent to which the employment of an interpreter is necessary depends on the scope of the suspect’s knowledge of German and on the complexity of the matter. Similarly, it must be determined in each individual case which documents need to be translated from German into the mother tongue of the suspect. At a minimum, he must receive a translation of any pre-trial detention order, the formal accusation, and a penal order, which has the same legal effect as a judgment.389 With respect to other, less important documents, it can be sufficient that the suspect’s defence lawyer— with the assistance of an interpreter, if necessary—gives the suspect an oral summary.390 The interpreter is selected and appointed by the presiding judge of the court with jurisdiction for the trial.391 An interpreter has the same legal position as a court-appointed expert and can be challenged and recused for bias.392 The cost of translations and of a necessary interpreter—including for the translation of conversations under telephone or other surveillance393—is borne by the state, regardless of the outcome of the process and of the financial means of the suspect.394

383

§ 147, s 2, 2nd sentence CCP. § 147, s 5, 2nd sentence CCP. 385 The file itself will not be given to the suspect because he might destroy or damage it. 386 § 147, s 7 CCP. 387 § 187, s 1 Gerichtsverfassungsgesetz (Code of Court Organisation). 388 Federal Constitutional Court, ‘Decision of 27 August 2003 [2004] NJW 50; H Diemer, ‘§ 187 GVG’ in R Hannich (ed) Karlsruher Kommentar zur Strafprozessordnung, mit GVG, EGGVG und EMRK, 6th edn (Munich, Beck, 2008) marginal number 1. 389 Th Wickern, ‘§ 187 GVG’ in E Löwe, W Rosenberg and others (eds), Die Strafprozessordnung und das Gerichtsverfassungsgesetz: Großkommentar, 26th edn (Berlin, de Gruyter, 2010) marginal number 10. 390 State Court of Appeals of Hamburg, ‘Judgment of 27 October 2004’ [2005] Neue Zeitschrift für Strafrecht 226. 391 Wickern (n 389) marginal number 17; H Frister, ‘§ 187 GVG’ in J Wolter (ed) SK-StPO, 4th edn (Cologne, Heymanns, 2010) marginal number 9. 392 § 191 CCO. 393 Federal Constitutional Court, ‘Decision of 7 October 2003’ [2004] NJW 1095. 394 46 BGHSt 178, 183-185 (2000); Wickern, ‘§ 185 GVG’ (n 389) marginal numbers 23-28. 384

306 Germany 16. The Right to Silence During the Pre-Trial Procedure The right to silence is not explicitly mentioned in the Code of Criminal Procedure395 or in the constitution, but the Federal Constitutional Court has inferred that right from the respect for human dignity (Article 1 Basic Law) and the principle of Rechtsstaatlichkeit.396 Under German law, no one must be obliged or forced to perform any activity that would make him liable to criminal prosecution or would make conviction of a crime more likely; this includes, for example, production of incriminating materials397 and extends to such activities as producing a handwriting sample or exhaling into a device that measures the alcohol concentration in one’s breath.398 The suspect has a right to remain silent as to anything beyond his name, date of birth and address.399 He need not answer questions concerning anything else. Any judge, prosecutor or police officer questioning the suspect is obliged to inform him of his right to remain silent.400 If this information has not been given, any statement the suspect makes may not later be used against him, unless he consents or is deemed to consent to the admission of the statement in evidence.401 An exception applies if the suspect was aware of his right to silence at the beginning of the interrogation; in that case, the lack of a warning does not lead to the inadmissibility of his statement.402

17. Rights of Legal Persons in Criminal Proceedings Legal persons are not subject to criminal punishment under German law. They therefore do not have the rights of suspects.

395 According to para 136, s 1, 2nd sentence CCP, the interrogator must inform the suspect that he may remain silent ‘according to the law’, but there is no specific German ‘law’ affording that right. 396 38 BVerfGE 105, 113 (1974); 56 BVerfGE 37, 41-45 (1981); 95 BVerfGE 220, 241 (1997). 397 Cf § 95, s 1 CCP. 398 Rogall (n 60) marginal number 73 with further references. 399 According to § 111 Gesetz über Ordnungswidrigkeiten (Administrative Infractions Law), it is an administrative infraction to refuse to provide an ‘appropriate public agency’ (zuständige Behörde) the following information: name, place and date of birth, marital status, profession, place of living, citizenship. But even assuming that the prosecutor or police are ‘appropriate public agencies’, one should acknowledge an exception from this legal obligation if answering the question might incriminate the person, as for example when the murder victim in dying exclaimed ‘X has killed me!’ Cf Rogall (n 60) marginal numbers 70-71. 400 § 136, s 1, 2nd sentence CCP. 401 38 BGHSt 214 (1992); 51 BGHSt 367 (2007). The Federal Court of Justice assumes consent with the use of an unwarned statement unless the defence lawyer explicitly makes a timely objection when the evidence is introduced at the trial; 38 BGHSt 214, 225-26. 402 38 BGHSt 214, 224-25 (1992).

8 Hungary1 MIKLOS HOLLAN

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

H

UNGARY’S CODE OF Criminal Procedure (CCP) distinguishes between pre-trial and trial phase of criminal procedures (second and third part of the Code). In the second part of the CCP investigation (Chapter IX), and indictment (Chapter X) are regulated as distinct sub-phases of the pre-trial phase. Hungarian criminal procedure does not differentiate between prosecution and judicial preliminary inquiry.2 In the legal literature, the dominant view mainly follows the structure of the CCP, distinguishing between investigation, intermediary procedure (including prosecution) and trial.3 According to the minority view, the legal-technical solution of the CCP does not make prosecution an independent stage of criminal proceedings. In the opinion of these authors, the indictment (or the decision on termination the procedure) shall be regarded only as the closing phase of the investigation. According to this view, investigation is a unified stage of the criminal procedure which includes the functions of the public prosecutor until the indictment has been filed.4 2. Sources of Criminal Procedural Law The Constitution of Hungary provides that fundamental rights may be limited by acts of parliament, without distracting their essential content.5 The Constitutional Court pointed out that the appropriate regulatory level of restricting a fundamental right could be determined on the basis of the concrete measure, depending on the intensity of its relationship to fundamental rights. Direct and significant limitations shall be regulated by acts of parliament,

1 This text was finalised on 30 June 2011. Subsequent modifications of the CCP and related instruments are not taken into account by the author. 2 K Karsai, Z Szomora, ‘Criminal Law in Hungary’ in International Encyclopaedia of Laws—Criminal Law (The Hague, Kluwer Law International, 2010) 141. 3 C Herke, Bünteto ˝ eljárásjog (Budapest, Dialóg Campus, 2004) 14. 4 E Cséka and others, A büntetö eljárási jog alapvonalai, vol 1 (Szeged, Bába Kiadó, 2006) 388. 5 Art 8(2) Hungarian Constitution.

308 Hungary while issues only in collateral connection with fundamental rights may be included in decrees of governments or of various government members.6 The former Act on Legal Norms required that ‘criminal procedure’ as such should be regulated by an act of the parliament.7 The CCP, notwithstanding this, authorised specific aspects of criminal procedure to be regulated by government decree (eg personal protection of participants of criminal proceedings) or even by ministerial decree (eg liquidation of seized objects8).9 The CCP also authorised ministers to regulate the detailed rules of investigation conducted by investigative authorities under their supervision.10 The present code on legal norms11 does not contain any explicit rule on prescribed regulatory levels. Case law of ordinary criminal courts is not explicitly acknowledged in the prevailing legal literature as a source of criminal procedural law. It is ascertained, however, that published decisions of higher criminal courts have a factual binding force, at least with regard to lower courts. This effect is derived from the powers of higher criminal courts in the course of ordinary and extraordinary legal remedies.12 Certain decisions edited by the judges of the Supreme Court are published in legal journals, eg Decisions of Courts (Bírósági Határozatok). Certain journals (Fundamentum, Acta Humana) publish resumes of constitutional and ordinary court decisions. The entire text of certain final decisions of courts from 2007 is published on the internet by the force of an act of parliament. In scholarly writing some authors13 acknowledge the decisions of the Constitutional Court as a direct source of criminal procedure. Some case law of the Constitutional Court is published in the Hungarian Official Journal, in separate volumes; it is accessible also on the internet.14 Ordinary courts refer to the case law of the Constitutional Court very rarely, however, and it has been alleged by some legal literature that in certain cases references to the Constitution (and decisions of the Constitutional Court) are not integral part of the reasoning, but mere ornaments thereon. This analysis has asserted that in other cases ‘constitutional’ references were applied to camouflage the mistakes of the reasoning.15 These statements however were sharply criticised for factual, methodological and theoretical mistakes which undermine the credibility of the whole analysis.16 Some ECtHR cases are reported in Decisions of Courts and by certain legal reviews (eg Fundamentum). The decisions of the ECtHR are very rarely referred to in the decisions of ordinary courts.17

6

Constitutionality of the regulation of abortion, Constitutional Court 64/1991 (XII 17), AB, ABH 1993, 297,

300. 7

Act No IX of 1987 on law-making procedure, s 4(f) (repealed). CCP s 604(1)(a). 9 CCP s 604(3)(j). 10 CCP s 604 (3). 11 Act No CXXX of 2010 on law-making procedure. 12 Tremmel et al, Új magyar bünteto ˝eljárás (Budapest-Pécs, Dialóg Campus, 2004) 48. 13 Ibid 44. 14 www.mkab.hu. 15 M Bencze, ‘Díszíto ´´elem, álcázóháló vagy tartóoszlop? A bünteto´´ bírói gyakorlat és az Alkotmány’ (2007) 3 Fundamentum 5–21. 16 M Hollán, ‘Az Alkotmánybíróság határozatainak hivatkozása a bünteto ´´bíróságok döntéseiben’ (2008) 3–4 Fundamentum 81–92. 17 BH 2005, 243. 8

General Aspects of the Procedure 309 The case law of the ECJ has not been referred to in decisions of criminal courts so far, notwithstanding that in some criminal cases, a preliminary ruling of the ECJ was initiated (however the motion was refused).18 According to an explicit provision of the Constitution, special decisions of the Supreme Court, namely decisions for the unity of application of legal norms, have binding force for all courts of the country.19 These decisions published in the Hungarian Official Journal are followed by prosecutors and investigating authorities also, since the courts will by all means apply them when deciding a case. Binding force of other normative guidelines of the Supreme Court is provided for neither by the Constitution nor by any act of parliament. Lower courts do in fact follow these guidelines, since the Supreme Court itself follows them when deciding on motions for ordinary or extraordinary legal remedies.20 These decisions are published in the journal Decisions of Courts and on the official website of the Supreme Court.21 Obligatory guidelines for prosecutors are issued by the Chief Public Prosecutor.22 The impact of these guidelines on the day-to-day work of prosecutors is never questioned; their qualification as legal norms is, nevertheless, often disputed in the legal literature.23

3. Bodies Carrying out Investigation and Prosecution The general investigative authority is the police,24 which investigates all types of criminal offences not falling under the competence of specialised investigative agencies such as the National Tax and Custom Office (NTCO), which carries out investigations in case of suspicion of specified offences. The competence of the NTCO covers almost all offences of so-called economic criminal law (smuggling of goods, revenue offences, tax fraud, fraudulent bankruptcy) and offences against intellectual property. The competence of the NTCO also includes certain crimes (eg forgery of official documents) committed in relation to these offences.25 According to the CCP, the investigative authority conducts the investigation upon the order of the prosecutor or independently.26 The investigative authority shall conduct the investigation or perform certain investigative actions independently, if the criminal offence was detected by, or the complaint filed with, the investigative authority itself, or the offence came to the notice of the investigative authority in another way.27 The prosecutor shall act as the public accuser28 by filing the indictment. However, to establish the conditions of the indictment, the public prosecutor shall order or carry out investigation.29 Some cases fall within the exclusive competence of the prosecutor’s office 18 19 20 21 22 23 24 25 26 27 28 29

C-328/04 Vajnai Attila v Hungary [2005] ECR 1-8577, 140. s 47(2) of the Constitution. On the status of normative guidelines as legal norms cf Tremmel et al (n 12) 48 (as debatable). www.lb.hu. 11/2003 (ÜK 7) order of the Chief Prosecutor. Tremmel et al (n 12) 47. CCP s 36(1). CCP s 36(2). CCP s 35(1). CCP s 35(2). CCP s 28(1) sent 1. CCP s 28(3).

310 Hungary to conduct investigation.30 In these cases the investigation is carried out by the specialised Investigative Prosecution Office of the given county (including the capital of the country).31 Cases falling within this exclusive competence are those of the utmost importance, eg bribery committed by judges or higher-ranking police officiers, and the investigation is carried out by the Central Investigating Prosecution Office. The territorial competence of the Central Investigating Prosecution Office covers the whole country.32 Upon the orders of the Chief Prosecutor, investigative prosecution offices or the Central Investigating Prosecution Office may investigate any case.33 In the case of offences subject to private prosecution, the criminal procedure usually has only one phase: the court procedure without investigation. Exceptionally, the court will order an investigation, if the identity, personal data or place of residence of the person referred to in the complaint are unknown, or means of evidence needs to be explored. In this case the investigation shall be conducted by the police.34 In the event of conflicts of competence among investigating authorities, the competent prosecutor shall designate the investigative authority proceeding henceforward.35 If an offence falling within the competence of the police or the NTCO is combined with an offence beyond the competence of the given investigative authority, the procedures should be separated. If this solution is deemed unfeasible, the competent prosecutor shall designate the investigative authority to carry on the proceedings. Even those investigating authorities which would not otherwise be competent to carry out an investigation may be designated.36 With the agreement of their heads and the consent of the prosecutor, investigating authorities may set up a joint task force to investigate a specific case or a group of cases.37 With regard to the relationship between the investigative authority and the public prosecutor, three types of connections38 can be differentiated: (i)

30

The investigative authority carries out the investigation according to the orders of the prosecutor.39 The prosecutor has the right to instruct the investigative authority carrying out the investigation.40 The investigative authority shall observe the prosecutor’s instructions and deadline, and shall inform the prosecutor on ordering the investigation and the status of the case.41 The prosecutor may instruct the investigative authority to prepare his decisions.42 When the investigative authority conducts the investigation, the prosecutor shall supervise its compliance with the CCP and ensure that persons participating in

CCP s 29. s 56/A(1) of the 25/2003 (ÜK 12) order of the Chief Prosecutor; s 50(2) (a) of the 11/2003 (ÜK 7) order of the Chief Prosecutor. 32 s 56/A (1) of the 25/2003 (ÜK 12) order of the Chief Prosecutor; s 49(1) and (2) a–g of the 11/2003 (ÜK 7) order of the Chief Prosecutor. 33 s 49(2)(h) and 50(2)(b) of the 11/2003 (ÜK 7) order of the Chief Prosecutor. 34 CCP s 499. 35 CCP s 37(2). 36 CCP s 37(2). 37 CCP s 37 (3). 38 Another classification provided by Karsai, Szomora (n 2) 142–43. 39 CCP ss 165(1) and 165(4). 40 CCP s 165(1). 41 CCP s 165(2). 42 CCP s 165(3). 31

General Aspects of the Procedure 311 the procedure can exercise their rights. The prosecutor, inter alia, may instruct the investigative authority to perform further investigative actions or further investigation, or to conclude the investigation within the deadline set by the prosecutor. The prosecutor supervising the investigation may be present at investigative actions, and may examine documents produced during the investigation. The prosecutor may amend or repeal the decision of the investigative authority, may terminate the investigation and order the investigative authority to terminate the investigation. The prosecutor may even refer the proceedings to his own competence.43 The public prosecutor exercises intensive supervision if the case is complicated as regards the establishing of the facts or the application of legal rules. Intensive supervision is also obligatory, if the criminal offence is punishable with imprisonment exceeding 10 years, or if the defendant is under a coercive measure restricting his/ her personal freedom etc. Intensive supervision means the monthly examination of the documents of the case to decide whether supervising measures are required.44 (ii) The investigation is ordered by the public prosecutor; eg if the complaint was filed with the prosecution service. Investigation shall be conducted according to the orders of the prosecutor even in this case.45 With regards to the details of these powers see subpoint (i) above. (iii) If the public prosecutor carries out the investigation, the investigative authority may be instructed to perform any investigative action as to the prosecution service does not have suitable technical means to carry out (eg, take the defendant into arrest).46 Even in this case, the prosecutor shall supervise compliance with these acts and ensure that the persons participating in the procedure can assert their rights by the above-mentioned means of supervisions.47 Some cases fall within the exclusive competence of the prosecutor’s office to conduct investigation. The most important instances of this exclusive competence are the following: — — — — — — — —

43 44 45 46 47 48

criminal offences committed by persons enjoying immunity due to holding a public office (eg members of parliament); criminal offences committed by persons enjoying immunity due to international law; serious violent offences against certain public officials (judges, prosecutors, policemen); any offence committed by important public officials (judges, prosecutors); criminal offences committed by policemen; certain aggravated corruption offences committed by public officials; corruption offences committed in relation to certain public officials; certain criminal offences against administration of justice.48

CCP s 165(4). CCP s 165/A. CCP s 165(1) sent 1. CCP s 165(3) sent 3. CCP s 28(4). CCP s 29.

312 Hungary Public prosecutors are the public accusers.49 The prosecutor shall file an indictment and represent the charge before the court if the conditions thereof are fulfilled.50 Certain offences (eg non-aggravated rape, non-aggravated sexual assault, trespass) are subject to public prosecution, even if they are punishable only on the complaint of the victim. Hungarian criminal procedural law does not provide for the legal institution of the investigative judge or the pre-trial chamber. Judges of investigation do not have the right to decide on whether the suspect is to be prosecuted.51 The victim may act as a substitute private prosecutor, even when the offences are subject to public prosecution, if the prosecutor (the investigative authority) refuses to, or terminates the investigation or drops the charge. Unless provided otherwise by the CCP, in the course of a court procedure, the substitute private prosecutor shall exercise the rights of the public prosecutor, including the right to motion for a coercive measure depriving the personal freedom of the accused.52 The powers of the substitute public prosecutor are limited in so far as he/she may not propose to deprive the accused of parental authority,53 he/she cannot have access to confidential documents that are separated from the file,54 and he/she cannot extend the charge (indictment).55 In its resolution No 3/2004 for the uniformity of the law, the Supreme Court enabled substitute private prosecution in proceedings for economic criminal offences (eg tax fraud, smuggling or subvention fraud). The Supreme Court authorised public organisations (eg tax offices, ministries) to act as substitute private prosecutors in these cases. This resolution however was abrogated by Decision of the Constitutional Court No 42/2005 (XI 14) AB. Public organisations are, therefore, not entitled to carry out substitute private prosecution for economic criminal offences. In the case of certain offences, exhaustively enumerated by the CCP (trespass, violation of secrecy of correspondence, defamation, slander etc),56 only the victim is entitled to file the indictment as a private prosecutor. If the victim dies, he/she may be replaced by his/ her relative within 30 days.57 Establishment of criminal liability for these offences always requires the complaint of the victim.58 Defamation and slander are subject to public prosecution if committed against a public official in the course of his official proceedings, or against an authority in connection with its official duties.59 Private prosecution presupposes that the offence subject to private prosecution is punishable on the complaint of the victim. Private prosecution is, therefore, excluded where defamation and slander are committed against a person enjoying diplomatic or other personal immunity based on international law. In this case it is not the

49 50 51 52 53 54 55 56 57 58 59

CCP s 24(1) sent 1. CCP s 28(7). T Király, Bünteto´´eljrási jog (Budapest, Osiris, 2001) 149. CCP s 236 sent 1. CCP s 236 sent 2. CCP s 233(3). CCP s 236 sent 2. CCP s 52(1). CCP s 52(2). CCP s 31. CCP s 52(4).

General Aspects of the Procedure 313 complaint of the victim, but the motion for criminal proceedings submitted via diplomatic channels, that is the requirement of criminal liability.60 For certain offences (eg defamation, slander), however, which are subject to private prosecution, it follows that only the private prosecutor has the right to file the indictment. The public prosecutor is entitled to take over the representation of the prosecution from the victim in any stage of the procedure. If the prosecutor withdraws from this role, it is taken over by the private accuser once again.61

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle According to the CCP, simple suspicion of criminal offence is the necessary threshold for initiating investigation.62 According to the legal literature the precise regulation of the ‘threshold’ of investigation is a crucial question, since the commencement of the criminal procedure opens the prospect of serious limitation of human rights.63 It should be noted, however, that in some cases, similar coercive measure can be ordered according to administrative law.64 According to the legal literature, suspicion means probability.65 Depending on its direction, two types of suspicion may be differentiated in the CCP: suspicion of the commission of the offence (suspicion in rem) on the one hand, and suspicion of the fact that a certain person is the perpetrator of the offence (suspicion in personam) on the other. It is selfevident that suspicion in personam presupposing suspicion in rem,66 since no offender can be without offence. Both directions have two degrees, namely mere and reasonable suspicion.67 According to the legal literature, reasonable suspicion means a 50 percent probability.68 Legal literature does not specify the specific facts that need to be established for the relevant threshold. It was pointed out that suspicion is usually supported by evidence which can be presented at the trial.69 The CCP utilises three combinations of directions and grades, namely mere suspicion in rem, mere suspicion in personam, and reasonable suspicion in personam. It is also self-evident that reasonable suspicion in personam means also a reasonable suspicion in rem.70 The CCP does not specify the necessary threshold (degree of suspicion) of prosecution. The prosecutor shall file an indictment, if the conditions provided by the CCP prevail.71 The first academic view maintains that public prosecutor may and shall file the indictment only if he/she is persuaded of the guilt of the suspect beyond any reasonable doubt on the basis

60 61 62 63 64 65 66 67 68 69 70 71

CC s 183(3). CCP s 496 sent 1 and sent 2. CCP s 6(2). Tremmel et al (n 12) 378. PA, Act No XXXIV of 1994 on the police. Tremmel et al (n 12) 380. Ibid 381. The CCP uses the attribute ‘megalapozott’, which may be translated literally as ‘well-grounded’. Tremmel et al (n 12) 382. Ibid. Ibid. CCP s 28(7).

314 Hungary of the evidences obtained in the course of the investigation.72 This may be derived from the regulation, according to which the: [P]rosecutor shall terminate the investigation, if, inter alia, based on the data of the investigation it cannot be established whether the criminal offence was committed by the suspect.73

According to the second view, prosecution requires only reasonable suspicion.74 According to the third view, prosecution requires strong suspicion (approximating to the dringender Tatverdacht in Germany), which is higher than reasonable suspicion.75 It is the responsibility of the prosecutor and the investigative authority to initiate and conduct the criminal proceedings if the conditions thereof exist.76 This provision of the CCP stipulates the principle of official prosecution on the one hand, and principle of mandatory prosecution (legality) on the other.77 The legal literature has drawn attention to the tendency to ‘invasion of opportunity, erosion of mandatory production’.78 Recognising the increasing role of opportunity,79 exceptions to the principle of legality are provided by the CCP itself.80 The most important cases of legal exceptions arising from the opportunity principle are the following: — — — — —

partial omission of investigation (indictment); termination of investigation against covert investigators; termination of investigation against cooperating perpetrators; termination of investigation with application of the reprimand; postponement of the indictment.81

The prosecutor may, in a decision, omit to indict a criminal offence having no significance in relation to another criminal offence of greater gravity being the subject of the indictment.82 The prosecutor shall reject the complaint (or terminate the investigation) if a person who may be reasonably suspected of having committed a criminal offence is a covert investigator who carried out his/her conduct in the line of duty in the interest of law enforcement, and the latter interest takes precedence over the interest to enforce the claim of criminal law.83 The prosecution may be terminated if the suspect cooperates in the investigation (or the in the proving) of the case (or of another criminal offence) to such an extent that the interests of national security or law enforcement take priority over the interest of enforcement of criminal law.84

72

Karsai, Szomora (n 2) 155. CCP s 190(1)(b) and (c). 74 Király (n 52) 353–54. 75 Ibid 382. 76 CCP s 6(1). 77 Király (n 52) 115. 78 I Kertész, ‘A legalitás eróziója, az opportunitás inváziója’ in K Tóth (ed), Tokaji-emlékönyv (Szeged, Szegedi Tudományegyetem, 1996) 155. 79 Tremmel (n 12) 73. 80 Király (n 52) 118. 81 Ibid 118. 82 CCP s 220 CCP. 83 CCP s 192(2). 84 CCP s 192(1). 73

Investigation Measures 315 The complaint may not be rejected, however, if the covert investigator or the cooperating perpetrator can reasonably be suspected of having committed a criminal offence involving intentional homicide.85 Reprimand is the mildest penal sanction of the CC. This sanction shall be applicable if the conduct, at the time it is adjudicated, is no longer dangerous to society, or its dangerousness to society has become so negligible that the mildest penalty or other measure of criminal law (except that of forfeiture and confiscation) would be too severe.86 The public prosecutor is entitled to reprimand the suspect in the decision terminating of the investigation. The public prosecutor is entitled to postpone the indictment in case of criminal offences punishable with a maximum imprisonment of three years. The postponement means that the suspect will not be indicted conditionally for a probationary period. In order for the reprimand and the suspension of indictment to become ‘valid’, the defendant must take cognisance of them and not exercise his/her right to enforce the court procedure.87 5. The Status of the Accused/Defendant According to the CCP the defendant is the person against whom criminal proceedings have been carried out. The defendant is called suspect in the course of the investigation, accused in the course of the court procedure and convict after the final imposition of the punishments (or certain punitive measures of substantive criminal law).88 6. Specialised Procedure for Financial Criminal Investigations No specialised procedure is provided under the CCP for financial criminal investigations. B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect It is a fundamental principle of the CCP that criminal proceedings may only be initiated against a person who is reasonably suspected of having committed a criminal offence (suspicion in personam).89 According to the explanatory memorandum of the CCP, suspicion is reasonable if it is supported by evidence or trustworthy denunciation or otherwise.90 According to the legal literature, reasonable suspicion means a more than 50 per cent probability.91 It is required that the investigative authority should inform the person that he or she is reasonably suspected of being the perpetrator of the offence. The information provided includes 85 86 87 88 89 90 91

CCP s 193(3). CC s 71. CCP s 197(2) and Art 227(1)(a). CCP s 43(1). CCP s 6(2). Official explanatory report to s 6 CCP. Tremmel et al (n 12) 382.

316 Hungary the description of the relevant facts and the legal qualification of the offence.92 Following this official notification, the person concerned shall be formally regarded as a suspect. Suspects in criminal proceedings have special rights and duties, specified in section 43 CCP and in other provisions of the Act. Suspects shall be granted sufficient time and opportunity for preparing their defence.93 Suspects shall report their place of residence or place of abode and any change therein to the prosecutor or investigative authority within three working days after moving.94 The rights of suspects shall be secured even before the formal official notification.95 The rights of suspects shall be granted for all persons against whom investigative measures are taken. Relevant investigative measures are, inter alia, the summoning to first interrogation as a suspect, execution of arrest, ordering of tracing, and issuing an arrest warrant.96 The rights of a suspect shall be granted to those persons who are under short-term arrest according to the PA.97 The rights of the suspect are extended to persons whose actual place of residence cannot be revealed, and to persons who are subjected to proceedings in absentia.98 2. Questioning the Suspect Pre-Trial No one may be compelled to make a self-incriminating testimony or to produce selfincriminating evidence.99 At the commencement of the interrogation, the suspect must be advised that he/she is not under an obligation to testify, and that he/she may refuse to testify or respond to any question during the interrogation, but may freely decide to testify at any time, even if he/she has previously refused to do so. The suspect shall also be warned that anything he/she says or provides may be used as evidence. In the absence of such warnings, the testimony of the suspect may not be admitted in evidence. The warnings and the suspect’s response shall be included in the records verbatim.100 3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) According to the CCP, those persons may be heard as a witness who have knowledge of the facts of the case.101 Certain categories of persons, however, may not be heard as a witness, or may refuse to testify as a witness: (i) Clergymen and churchmen on issues subject to the obligation of professional confidentiality may not be heard as witnesses.102 Defence lawyers may not be heard as

92

CCP s 179(2). CCP s 43(2)(c). 94 CCP s 43(4). 95 s 4(2) Investigation Decree, Joint Decree 23/2003 (VI 24) of the Minister of Interior and the Minister of Justice on the Detailed Rules of Investigation Conducted by Organisations under the Minister of Interior. 96 s 4(3) Investigation Decree. 97 s 4(4) Investigation Decree. 98 s 8(1) of the order No 11/2003 (ÜK 7) of the Chief Prosecutor. 99 CCP s 8. 100 CCP s 117(2). 101 CCP s 79(1). 102 CCP s 81(1)(a). 93

Investigation Measures 317 witnesses on issues communicated by or to the defendant in their capacity as defence lawyers.103 Those persons who have not been relieved from the obligation of secrecy may not be heard as witnesses on issues classifying as qualified information (state secrets etc).104 (ii) Certain relatives of the defendant may refuse to testify as a witness.105 Relevant persons are relatives in the direct line and their spouse, adoptive and foster-parents, adopted and foster-children, siblings, spouses, common-law spouses, and fiancés, relatives in direct line and siblings of the spouses, as well as the spouses of the siblings.106 Those who (including relatives of the defendant) would incriminate themselves (or their relatives) may refuse to testify on the related issues.107 This right of refusing to testify on self-incriminating issues is not open to those persons against whom criminal procedures were terminated on account of their cooperation with the investigating authorities.108 The testimony of the witness, however, in these cases may not be the basis of resuming the investigation or of applying the extraordinary legal remedy of retrial.109 Those also may refuse to testify who are bound by confidentiality owing to their profession, if their testimony would violate such confidentiality, unless they have been relieved by a person authorised pursuant to a separate legal regulation. This right of refusal is not provided if the authorised person is obliged to transmit the data under a separate legal regulation at the request of the prosecutor or the investigative authority.110 The CCP regulates five special forms of interrogating a witness before filing the indictment: (i) The prosecutor or the investigative authority may permit the witness to make a written testimony following or in lieu of the oral examination. In such a case, the witness shall write his testimony by his own hands and sign it. The testimony of the witness written in any other form shall be certified by a judge or a notary public.111 (ii) Specially protected witnesses may be interrogated only by the pre-trial judges prior to the filing of the indictment.112 Witnesses may be declared specially protected if the identity, the place of abode and the fact that she/he is intended to be heard by the prosecutor or the investigative authority is not known by the suspect and defence lawyer, and the exposure of his identity would seriously jeopardise the life, limb or personal freedom of either the witness or certain relatives thereof. It is also required for obtaining the specially protected status that the testimony of the witness relates to the important circumstances of a particularly serious case and the evidence expected from his testimony cannot be obtained otherwise.113

103 104 105 106 107 108 109 110 111 112 113

CCP s 81(1)(b). CCP s 81(2). CCP s 82(1)(a). According to CCP s 601(3) the definition of the ‘relative’ is provided by CC s 137 No 6. CCP s 82(1)(b). CCP s 82(4). CCP s 82(5). CCP s 82(3). CCP s 85(5). CCP s 207(3). CCP s 97.

318 Hungary (iii) The witness may be heard by the pre-trial judge, if he or she is in a condition directly endangering his or her life.114 (iv) The pre-trial judge shall hear the witness under the age of 14, if there is reasonable ground to believe that questioning at the trial would adversely affect his personal development.115 (v) Those who have limited capacity to understand the meaning of refusing to testify as a witness, due to their mental or other state, may only be heard as a witness if they wish to testify and their legal representative or the relative designated by the witness consents thereto.116 4. Arresting the Suspect and Detention for Questioning As a precondition for arresting a person, it is required that he or she is reasonably suspected of having committed the offence, which must be one that is punishable with imprisonment.117 Arrest may be ordered only if the conditions of pre-trial detention are established. The CCP specifies that if the perpetrator is caught red-handed, s/he may be arrested. An arrest is, however, not mandatory even in these cases. The suspect may be held under arrest for a maximum period of 72 hours. At the end of this period, the suspect shall be released, unless the court has ordered his pre-trial detention. The suspect shall be released immediately if the court refuses to order his pre-trial detention.118

5. Pre-Trial Custodial Detention Pre-trial custodial detention may not be ordered without at least one of the following four preconditions: (i) The suspect has escaped or hidden from the court, the public prosecutor or the investigative authority; or he/she has attempted to escape; or during the period of arrest another criminal procedure is launched against him/her for an intentional offence. (ii) There are reasonable grounds to presume that his/her presence at the hearing may not be secured otherwise, taking into account, inter alia, the risk of escape or the hiding of the suspect. (iii) There are reasonable grounds to presume that the suspect, if not taken into pre-trial detention, would frustrate, hinder or endanger the investigation by influencing or intimidating witnesses or by destroying, forging or concealing material means of evidence or documents.

114

CCP ss 87(a) and 207(3). CCP s 207(4). CCP s 86(2). 117 In the Hungarian CC almost all offences fulfil this condition; only a few offences are not punishable with imprisonment, eg non-aggravated violation of the privacy of correspondence (CC s 177) or the use of forbidden symbols (CC s 269). 118 CCP s 126(3). 115 116

Investigation Measures 319 (iv) There are reasonable grounds to presume that the suspect, if not taken into pre-trial detention, would accomplish the attempted or prepared offence or would commit another offence punishable with imprisonment. In the case of a juvenile suspects, pre-trial detention can be ordered only if it is necessary because of the severity of the offence with regard to which criminal proceedings are launched.119 If the offence is punishable only on the complaint of the victim, pre-trial detention may not be ordered prior to lodging thereof.120 Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may not be longer than one month.121 Pre-trial detention may be extended by the pre-trial judge by three months on each occasion, but the overall period may not exceed one year after the order of pre-trial detention.122 Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months on each occasion, in compliance with the procedural rules pertaining to pre-trial judges.123 Prior to filing the indictment, the prosecutor shall make a motion to the court for the extension of the pre-trial detention five days before the expiry of the deadline of the pre-trial detention.124 Pre-trial detention may not exceed a certain period, depending on the maximum punishment of the underlying offence.125 Considering the fact that the maximum duration of investigation is two years (in exceptional circumstances with an additional 90 days),126 the following rules are applicable before filing the indictment. The maximum period of pre-trial detention is one year for an offence punishable with a maximum of three years’ imprisonment.127 The maximum period is two years if the offence is punishable with a maximum of five years’ imprisonment.128

6. Interception of Postal Communications (Letters) According to the CCP, interception of postal communications (letters) is a special form of seizure. In this point rules of seizure are reviewed in relation to interception of postal communications (letters). With regard to other provisions on seizure see section B14. Postal communications may be subjected to seizure if they are regarded as means of evidence or objects subject to forfeiture (or confiscation).129 Seizure of postal communications may be ordered by the investigative authorities or public prosecutors.130 Seizure of undelivered postal communication can be ordered only by the public prosecutor

119 120 121 122 123 124 125 126 127 128 129 130

CCP s 454(1). CCP s 130(3). CCP s 131(1) sent 1. CCP s 131(1) sent 2. CCP s 131(1) sent 3. CCP s 131(2). CCP s 132(3). CCP s 176(2). CCP s 132(3). CCP s 132(3)(b). CCP s 151(1) and (2). CCP s 151(1).

320 Hungary before filing the indictment.131 Documents containing privileged (eg self-incriminating) communication shall be seized only by the prosecutor.132 Seizure shall be ordered by the pre-trial judge if it involves documents kept in the office of a law firm (notary public) containing professional secrets thereof.133 In the framework of covert data-gathering subject to judicial permit, the prosecutor or the investigative authority may, without informing the person, open, monitor and record with a technical device the contents of letters (and other items of mail).134 Covert datagathering may be ordered in order to establish the identity, locate or arrest the offender or to find means of evidence. Covert data-gathering may be executed from the time the investigation is ordered until the documents thereof are presented.135 Covert data-gathering may be ordered if the proceedings are conducted upon the suspicion of a criminal offence which has been committed intentionally and is punishable by imprisonment for at least five years.136 It may be ordered if the underlying criminal offence is trafficking in persons, bribery etc, punishable by imprisonment for at least three years.137 If the investigation is conducted by the prosecutor, covert data-gathering may also be performed in the case of other specified offences (eg trafficking in influence in relation to judges).138 Opening, monitoring and recording the contents of letters is also regulated by the PA.139 In this case the measure is called covert intelligence-gathering. The regulation of covert intelligence-gathering under the PA is similar to that of covert data-gathering under the CPP. The principal difference is, however, that covert intelligence-gathering is initiated by the police,140 permitted by a designated judge of the local court or by the president of the county court (not by the pre-trial judge).141 The provisions of the CCP shall not apply to covert intelligence-gathering performed prior to the order of the investigation. These activities shall be conducted by authorised organisations in compliance with separate legal regulations.142 It is explicitly regulated by the CCP that after the investigation is ordered, the prosecutor and the investigative authority performing the covert data-gathering shall be subject to judicial authorisation.143

7. Interception of the Contents of Telecommunications (Content Data) Interception of the contents of telecommunications is not specified as a separate coercive measure.

131 132 133 134 135 136 137 138 139 140 141 142 143

CCP s 151(4) sent 1. CCP s 153(2). CCP s 151(3). CCP s 200(1)(b). CCP s 200(1). CCP s 201(1)(a). CCP s 201(1)(a). CCP s 201(2). PA s 69(1)(c). PA s 70. PA s 71(1). CCP s 200(3). CCP s 200(2).

Investigation Measures 321 Contents of telecommunications can be intercepted by ordering seizure of data-storing devices. In this case the applicable rules are the same as seizure of postal communications (see section B6). The content of the device will be revealed by examination by an expert (cf section B18). There is a self-standing coercive measure regulated by the CCP called an order to reserve computer data. It imposes a temporary restriction of the right of disposal of a person possessing, processing or managing data recorded by a computer system.144 An order to freeze computer data may anticipate and complement seizure. Partially it is a preliminary measure, since the investigative authority or the prosecutor shall review the data without delay and decide whether to order the seizure of the data. In this case seizure may be executed by copying the data to a computer system or other data storage device,145 while according to the general rule only data storing devices can be seized (cf section B14). In contrast to seizing, an order to freeze computer data as a coercive measure may serve additional purposes, eg establishing the identity or location of a suspect.146 In the framework of covert data-gathering (cf section B6), subject to judicial permission the prosecutor and the investigative authority may (without informing the person) monitor and record communications made by any means of telecommunication (including telephone). Data transmitted and stored in computer system may also be monitored and recorded.147 Monitoring (or recording) of telecommunication is also regulated by the PA (covert intelligence-gathering cf section B6).148

8. Monitoring of Telecommunication Traffic Data Telecommunication traffic data can be obtained by an order to freeze computer data. With regard to the detailed provisions of this coercive measure see section B7. Investigative authorities may officially request data, inter alia, from telecommunication providers.149 A request for information from telecommunication providers requires the mere suspicion of the commission of a criminal offence.150 Data received from telecommunication providers may only be used if the prosecutor presses charges against the person on whom data was collected. If the prosecutor does not press charges, the data received shall be deleted.151 It should be mentioned, however, that according to the PA the police may require information from, inter alia, telecommunication providers. In this case the suspicion of the commission of a criminal offence is not required. Prior authorisation by the prosecutor is required.152 In urgent cases, only ex post facto validation by the prosecutor is required. Should the prosecutor refuse to validate the measure ex post facto, the data obtained must be erased immediately.153 144

CCP s 158/A(1). CCP s 158/A(7). CCP s 158/A(2). 147 CCP s 200(1)(b). 148 PA s 69(d). 149 CCP s 178/A § (1) sent 2. 150 According to the CCP these measures presuppose the commencement of the investigation (cf s 178/A (1) sent 1 CCP). 151 CCP s 178/A § (4) PA. 152 PA s 68(1). 153 PA s 68(2). 145 146

322 Hungary 9. Surveillance in Public and Private Spheres (Acoustic and Visual) Surveillance of the public and private spheres by acoustic and visual means may be permitted as a form of covert data-gathering (cf section B6).154 In the course of covert data-gathering the prosecutor and the investigative authority may, without informing the person concerned, keep under surveillance the events in a private home and record them with a technical device.155 For the purposes of the law, ‘private home’ means a home, other premises or objects used for dwelling, rooms belonging to the home but not intended to be used for dwelling, the enclosed area attached thereto, as well as any other premises or areas not open to the public.156 Surveillance in public and private spheres (acoustic and visual) with judicial authorisation is also regulated by the PA (covert intelligence gathering cf section B6). According to the PA, public premises, buildings and roads (and also vehicles) which are presumed connected with a criminal offence may be put under clandestine surveillance, and the images recorded, by the police without judicial authorisation.157 Sound and/or visual recordings of public premises may be made according to the PA even without the commencement of criminal proceedings in order to maintain public security, preventing or investigating crime. Local government may decide on the necessity and on the location of a recording device.158 The recorded images can be used, inter alia, in criminal proceedings,159 but should be erased after five working days.160 In exceptional cases this can be postponed by 30 days if the commencement of a criminal investigation is foreseen.161

10. Monitoring of Bank Transactions Data on bank transactions can be obtained by order to freeze computer data. With regard to this coercive measure see section B7.

11. Tracking and Tracing of Objects and Persons The CCP distinguishes between three types of tracing (pre-trial): (i) A tracing order may be issued by the investigative authority or the prosecutor in order to establish the place of residence or the identity of a person suspected of the commission of a criminal offence.162

154 155 156 157 158 159 160 161 162

CCP ss 200(1) and 203(1). CCP s 200(1). CCP s 200(5). PA s 64(1)(d). PA s 42(2)–(3). PA s 42(6). PA s 42(7)(b). PA s 42(8). CCP s 73(6) sent 1.

Investigation Measures 323 (ii) The prosecutor may order the tracing of a person whose testimony is required in the court proceedings in order to establish his place of residence.163 (iii) The prosecutor or the investigative authority may order a search for an object with an unknown location, if it may be seized by law, or if it is ordered to be seized (or subjected to freezing).164 Tracing of objects and persons is regulated by Act No XVIII of 2001. This measure may be applied even without criminal proceedings (eg to reveal the identity of persons). An arrest warrant may be issued, inter alia, if the criminal offence for which a criminal procedure has been commenced is punishable with imprisonment. The person named in such a warrant shall be arrested after having been located, and within 24 hours, brought before the prosecutor or investigative authority having issued the warrant.165

12. Data Mining and Profiling No special rule is included in the CCP on data mining and profiling. It is not prohibited, however, and official requests for information may relate to large quantities of data (even without specification of the person suspected of the commission). With regard to the details see section B8. According to PA section 68 the police may require information from certain public private and organisations without the suspicion of a criminal offence.166

13. Access to Relevant Premises (‘Crime Scene’) There are three types of evidentiary procedures (namely inspection, questioning on the spot and reconstruction) which are usually, but not exclusively, conducted on the crime scene.167 An inspection may be ordered and conducted by the prosecutor, if the exploration or establishment of a fact to be proven requires the examination of a person, an object or site, or the observation of an object or site.168 If the object of the inspection cannot be transported to the prosecutor or the investigative authority, or if this would result in significant difficulties or costs, the inspection shall be carried out on the spot.169 The prosecutor or the investigative authority shall question the defendant and the witness on the spot, if is necessary to make a statement on the crime scene, and to reveal the crime scene, or describe the course of events.170

163 164 165 166 167 168 169 170

CCP s 73(6) sent 2. CCP s 73(7) sent 1. CCP s 73(7) sent 3. PA s 68(1). C VII Title VII. CCP s 119(1). CCP s 119(4). CCP s 120(1).

324 Hungary The prosecutor shall order and hold a reconstruction, if they wish to establish or verify whether an event could, in fact, have taken place at a specific place and time, in a specific way or under specific circumstances.171 Inspection and reconstruction may be ordered (at least pre-trial) only by the prosecutor.

14. Search and Seizure Search means the search of a house, flat, other premises or an enclosure attached thereto, the vehicles parked there, as well as the examination of a computer system or computer media containing data recorded by such system.172 A search may be ordered by the court, the prosecutor or—unless the prosecutor orders otherwise—the investigative authority.173 A search may be ordered when there are reasonable grounds to believe that it will result in: — — —

apprehending a person having committed a criminal offence; uncovering the clues of a criminal offence; finding means of evidence or property subject to forfeiture (confiscation).174

A body search involves the examination of the clothing and body of the defendant or a person who is reasonably believed to have in his possession evidence, or property subject to confiscation or forfeiture.175 In the course of the body search, the vehicle, package and other objects being at the disposal of the person subjected to the body search may also be examined.176 The body search shall be ordered by the prosecutor or the investigative authority.177 Seizure may be ordered to obtain evidence or ensure confiscation or forfeiture of the property. Seizure means that the prosecutor or the investigative authority takes certain property in custody or secure the preservation of the property otherwise.178 Data storing devices may be seized if they constitute forms of evidence, or may be subject to forfeiture (confiscation). Seizure shall be ordered (pre-trial) by the prosecutor or the investigative authority.179

15. On-line Search of Computers There is no separate regulation in the CCP concerning on-line search of computers. In the framework of covert data-gathering, however, the prosecutor or the investigative authority may become acquainted with (secure or utilise) data stored in or transmitted by a computer

171 172 173 174 175 176 177 178 179

CCP s 121(1). CCP s 149(1). CCP s 149(3). CCP s 149(2). CCP s 150(1) sent 1. CCP s 150(1) sent 2. CCP s 150(2) sent 1. CCP s 151(1). CCP s 151(2).

Investigation Measures 325 system.180 Relevant rules of the CCP do not specify the method of data gathering, thus in the view of the author, there is no legal obstacle to carrying out this measure on-line.

16. Freezing Freezing means suspension of the right of disposal over property.181 Before filing the indictment, freezing may be ordered only by the pre-trial judge.182 (1) Freezing may be ordered with regard to the property of the defendant (certain parts or assets thereof) if there is reasonable ground to believe that the enforcement of confiscation against the defendant will be frustrated otherwise. Freezing of the property of the defendant may also be ordered to secure the enforcement of a civil lawsuit of the victim.183 (2) Freezing may be ordered in respect of property which is not in the possession of the defendant, yet may be subject to confiscation.184 However, property which is not in the possession of the defendant may not be subjected to freezing to secure a civil lawsuit of the victim.

17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) After the commencement of criminal proceedings, investigative authorities may request documents, data and information from any third party. Data-gathering shall be executed according to the general rules of official requests specified by CCP, section 71.185 The investigative authority may, therefore, prescribe a time limit for fulfilling such request, ranging between a minimum of eight and maximum of 30 days.186 Data shall be supplied free of charge.187

18. Invoking the Assistance of Experts to Examine Clues etc. An expert shall be employed if the establishment or the evaluation of a fact to be proven requires specialist knowledge.188 The main areas of special expertise are technical issues (eg traffic offences), medical issues (eg offences against life or limb) and issues of bookkeeping (eg economic offences).189

180 181 182 183 184 185 186 187 188 189

CCP s 200(1)(c). CCP s 159(1) sent 1. CCP s 159(1) sent 2 and s 207(2)(a). CCP s 159(2) sent 1. CCP s 159(2) sent 2. CCP s 178(1). CCP s 71(1). CCP s 71(1) sent 3. CCP s 99(1). Tremmel et al (n 12) 254.

326 Hungary In certain cases, eg if the fact to be proven is the mental disability of a person, the assessment of an expert is obligatory.190 In the pre-trial phase of the proceedings, experts may be employed by the prosecutor and—with the exception of certain cases in which the assignment of an expert is obligatory—by the investigative authority.191 An expert shall be employed by way of an order on the assignment.192 Certain categories of persons may not act as experts, namely anyone: —

who has participated in the case as a defendant, defence lawyer, a victim, complainant or a representative thereof, or who is a relative of any of the above;193 — who has acted in the case as a judge, prosecutor or a member of the investigative authority, or who is a relative thereof;194 — who cannot be expected to form an unbiased expert opinion for other reasons etc.195 The provisions of the CCP pertaining to experts shall also apply to interpreters, provided that only persons having the qualification stipulated in a separate decree (namely the Translation Decree196) may be employed as an interpreter. The term ‘interpreter’ shall include translators as well.197 The expert shall be obliged to make a contribution to the case and to give an expert opinion.198 If there are significant reasons for doing so, the expert may be relieved of the assignment by the decision of the prosecutor or investigative authority proceeding in the case.199 The defendant and the victim shall submit themselves to the professional examination or treatment, unless this involves an operation or an examination procedure which is tantamount to an operation.200 Any professional examination affecting the inviolability of the person to be examined may only be conducted upon a separate order by the assignor.201 The victim shall facilitate the performance of the professional examination in other ways (eg by supplying information) also.202 Upon a separate order by the assignor, the defendant, the victim and the owner of the object of inspection shall permit the item in his possession to be subjected by the expert to an examination—even if this involves damage to or destruction of the object.203 If the defendant fails to fulfil the obligation of assistance, coercive measures may be applied. If the victim fails to fulfil the obligation of assistance, a fine may be imposed.204

190 191 192 193 194 195 196 197 198 199 200 201 202 203 204

CCP s 99(2). CCP s 99(3). CCP s 100(1). CCP s 103(1)(a). CCP s 103(1)(b). CCP s 103(1)(h). Translation Decree No 24/1986 (VI 26) MT of the Council of Ministers. CCP s 114(3). CCP s 104(1). CCP s 104(2). CCP s 106(1) sent 2. CCP s 106(1) sent 1. CCP s 106(1) sent 3. CCP s 106(1) sent 4. CCP s 106(3).

Prosecution Measures 327 These rules pertaining to the victim shall also apply to witnesses, except of those persons who may not be heard as a witness or may refuse to testify as a witness205 (cf section B3). 19. Infiltration In the course of collecting data, the investigative authority may use a member of the investigative authority who conceals his/her capacity as a police officer (undercover agent).206 Undercover agents may also be applicable under the PA before (or without) criminal proceedings.207 20. Controlled Deliveries The CCP does not provide for controlled deliveries as measures applicable in criminal procedures. The PA, however, permits the investigative authorities to apply undercover agents in order to perform, inter alia, controlled deliveries. According to the PA, ‘controlled delivery’ means the activity of the investigative authorities, which—in the framework of international cooperation—makes it possible for the perpetrator that import, export or transfer through the country an object under continuous and increased level of supervision in order to revealing the identity of further perpetrators of establishing the international relations of the offence.208 C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution Anyone is entitled to denounce a criminal offence or an offender. Certain offences (trespass, violation of secrecy of correspondence, libel, defamation, non-aggravated rape etc) are, however, punishable only on the complaint of the victim.209 It is necessary to carry out investigation before prosecution, except in relation to offences which are subject to private prosecution (cf section C3). Public prosecutors, substitute private prosecutors or private prosecutors are entitled to bring criminal charges. With regard to the relation between these forms of prosecutions, see section C3. The police do not carry out prosecutions. 2. Unilateral Disposal of the Case (Including Remedy) The investigation shall be terminated by the investigative authority,210 if: — —

205 206 207 208 209 210

the action does not constitute a criminal offence; the commission of a criminal offence cannot be established (on the basis of the investigation) and the continued procedure is not expected to yield any result;

CCP s 106(4). CCP s 178(2). PA s 64. PA s 68/F. CC s 31. CCP s 190(2) sent 1.

328 Hungary — — —

the suspect is under 14 years and therefore he/she is not punishable; the offence has ceased to be punishable (the suspect has died, received a pardon etc); the conduct has already been adjudicated by a final decision (res judicata).

The investigative authority shall send its decision to the prosecutor immediately.211 In these cases the prosecutor is also entitled (and required) to terminate the investigation.212 Only the public prosecutor213 is entitled (and required) to terminate the investigation, if: — — — — —

the criminal offence was not committed by the suspect; it cannot be established whether the criminal offence was committed by the suspect (on the basis of the investigation); the conduct is not punishable due to certain grounds (insanity, justified defence etc), unless it appears necessary to order compulsory psychiatric treatment; the offence ceases to be punishable due to certain grounds specified in the CC (eg active repentance, cf section C3); it applied a reprimand against the suspect (cf section A4);

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy) The public prosecutor is entitled (and required) to terminate the investigation, if the suspect has cooperated with the authorities (cf section A. 4);214 Certain categories of criminal offence (against eg the person, against property or traffic offences) are not punishable on the basis of active repentance. Active repentance means that the perpetrator factually or symbolically recompenses or attempts to recompense the harm and damage caused to the victim. Mediation is necessary for termination of the proceeding on the basis of active repentance. In the course of mediation, the persons concerned have to aim at reaching an agreement between the suspect and the victim.215 Active repentance terminates liability for offences punishable by imprisonment not exceeding three years216 (in the case of juvenile offenders, imprisonment not exceeding five years).217 Mediation is excluded if the offender is a multiple recidivist, committed the offence in a criminal organisation, or caused (even negligently) death etc.218 Mediation requires the consent of the suspect and the victim.219 The purpose of mediation is to establish an agreement between the suspect and the victim.220

211

CCP s 190(2) sent 2. CCP s 190(1). CCP s 190(1). 214 CCP s 192(1). 215 CC s 36(1). 216 CC s 36(1). The punishment of more serious crimes may be mitigated on the basis of active repentance (cf CC s 36(2)). 217 CC s 107/A. 218 CC s 36(3). 219 CCP s 221/A(1) and (3)(c). 220 CCP s 221/A(2). 212 213

Prosecution Measures 329 4. Reopening a Case Closed on Different Grounds Unless the CCP provides otherwise, the decision about the termination of an investigation is not a final decision.221 The procedure can be resumed after termination, until such point as liability for a criminal offence is lapses by passage of time.222 Resumption of proceedings may be ordered by the prosecutor if the investigation was terminated by the investigative authority. If the investigation was, however, terminated by the prosecutor, the resumption of proceedings may be ordered only by the superior prosecutor.223 Motion to the pre-trial judge is provided if the (superior) public prosecutor did not order the resumption of the investigation. It is not expressly regulated, but may be derived from the following two provisions: if the public prosecutor (superior public prosecutor) did not order the resumption of the investigation, it may be ordered only by the pre-trial judge against the suspect who had been affected by the termination.224 If the pre-trial judge has, however, rejected the motion for resumption of the investigation, a repeated motion requesting the resumption of the investigation on the same ground may not be filed.225 Reopening a terminated investigation is explicitly excluded against defendants if former criminal procedures were terminated on account of their cooperation with the investigating authorities.226

5. Committing to Trial and Presenting the Case in Court The court, after having received the indictment, has to prepare the trial before launching it. The single judge or presiding judge of the chamber has to send out the indictment to the accused and the defence lawyer within 60 days after receiving it, so that these persons can become aware of the accusation and can name their means of evidence.227 The preparation of the trial consists of two main tasks: first, to examine the indictment and, second, to examine whether there are any obstacles that would hinder the court procedure. If the court is composed of more than one judge,228 some decisions shall be made during the preparation as the responsibility of the presiding judge; while others fall within the competence of the judicial chamber. Decisions falling within the competence of the presiding judge may be made by the judicial chamber as well.229

221 222 223 224 225 226 227 228 229

CCP s 191(1). Karsai, Szomora (n 2) 149. CCP s 191(2). CCP s 191(3). CCP s 191(4). CCP s 82(4) and (5). Ibid 187. CCP s 14. Karsai, Szomora (n 2) 188.

330 Hungary D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence According to the general rule,230 evidence obtained through a criminal offence, by other prohibited methods, or through substantial impairment of the participants’ procedural rights, cannot be taken into consideration.231 Evidence is obtained through a criminal offence, if the testimony is a result of forced interrogation,232 the document is forged by the member of the investigative authority, etc.233 Other methods, while they do not constitute a criminal offence, are prohibited by the CCP. Without the consent of the suspect, his or her testimony may not be examined using a polygraph.234 The present regulation gives a broad discretion to courts to ascertain whether participants’ procedural rights are substantially impaired. According to judicial practice, substantial breaches of procedural rights are the following: — —

interrogating a person as a witness while he/she has been arrested as a suspect;235 interrogating a suspect without appointing a defence lawyer when the defence is mandatory.236

In addition, there are special rules in the CCP which exclude certain types of evidence, eg: — —

testimony of the suspect in absence of the required cautioning;237 testimony of the witness238 in absence of providing prior information for him or her the categories of persons who may not be heard as a witness or may refuse to give evidence as well as of his/her rights.239

The CCP does not regulate the admissibility of evidence obtained with the help of original, but illegally obtained evidence. According to the legal literature, evidence obtained during a search is admissible, even if the search was conducted only on the basis of an illegally obtained confession of the suspect. Hungarian criminal procedure does not, therefore, follow the principle of the fruit of the poisonous tree.240

2. Admissibility of Written Reports Any documents may be used as means of evidence.241 Any means of evidence (including documents) produced or obtained by an authority prior to the institution of criminal

230 231 232 233 234 235 236 237 238 239 240 241

Tremmel and others (n 12) 290. CCP s 78(4). CC s 227. CC s 275. CCP s 180(2). Court Decision, BH 2007, 217. Court Decision, BH 2007, 402. CCP s 117(2) sent 3. CCP s 82(2) sent 3 CCP. Court Decision, BH 2005, 386. Tremmel et al (n 12) 293. CCP s 76(1).

The Rights of the Suspect/Defendant During Investigation and Prosecution

331

proceedings (without going beyond its power) may be used in the course of the criminal proceedings.242 If the court or the prosecutor refuses the motion of the suspect (or the defence lawyer) to involve somebody as an expert, his or her opinion may be used in criminal procedures as documents.243 Explicit rules of the CCP regulate the admissibility of certain reports of investigative authorities. The report concerning the performance of covert data-gathering eg may be used as evidence after being attached to the files of the investigation.244 The admissibility of certain reports of investigative authorities is excluded by the CCP. It is explicitly stipulated that the investigative authority may not take a simple report on the questioning of the suspect.245 This rule explicitly prohibits the circumvention of the strict formal requirements of the minutes (signature of the suspect etc).

3. Status of Evidence Obtained in other Member States The admissibility of evidence obtained in another Member State is not explicitly regulated by the CCP. Hungarian authorities may request that foreign authorities obtain evidence in line with the rules of the CCP.246 From this provision it may be concluded that evidence obtained in another Member State may not be used in Hungarian criminal procedures, if the means by which it was obtained were not in accordance with the provisions of the CCP. The testimony of a witness shall be excluded, if he/she may refuse to testify as a witness according to Hungarian law, but was interrogated in another Member State without such a provision.

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence According to the Hungarian Constitution no one may be regarded as guilty until his/her criminal liability has been established by a final decision of the court.247 This provision, although it has no title, recognises presumption of innocence as a fundamental right, acknowledged by the Hungarian Constitutional Court.248 The CCP also lays down that no one may be may be regarded as guilty until his/her guilt has been established by a final decision of the court. The title of this section is explicit: ‘Presumption of innocence’.249

242

CCP s 76(2). CCP s 112(3). 244 CCP s 206(2). 245 CCP s 168(1). 246 ICA ss 64(1) and 72, Act No XXXVIII of 1996. 247 s 57(2) of the Constitution. 248 Constitutionality of certain provisions of the administrative penal code, Constitutional Court 1284/B/1990, AB, ABH 1991, 562, 562; Decision on the constitutionality of disciplinary procedure against civil servants, Constitutional Court 941/B/1995, AB, ABH 1996, 548, 550. 249 CCP s 7. 243

332 Hungary The legal literature points out that the terminology (‘presumption of innocence’) and the regulation of the CCP is misleading in certain ways. First, CCP does not require that everyone shall be regarded as innocent, but only prohibits the treatment of persons as guilty without a final decision of the court.250 Second, according to its legal nature the provision of the CCP is not a genuine presumption, since it does not require any circumstance to be proved to establish the validity of the presumed fact.251 Third, the provision only virtually prohibits a presumption of guilt (the personal opinion of the prosecutor may not be regulated). It requires in fact only that suspects shall not be treated as being guilty.252 Fourth, the presumption of innocence does not include everyone, but only the court, the prosecutor and the investigative authorities.253 The CCP stipulates the burden of proof in a separate provision, but the legal literature points out that this is a derivative of the presumption of innocence.254 According to the CCP, ‘the charge shall be proven by the accuser’.255 In most cases, the burden of proof rests solely on the prosecution, although there are certain exceptions when the burden of proof is shifted to the defendant. In cases concerning defamation (slander), the defendant may not be punished if the statement at issue for impairing the honour of the victim turns out to be true (and the court consider that it is justified to plead validity of the fact).256 Confiscation of assets obtained while a member of a criminal organisation is excluded if the lawful origin of the property is proved.257 Under the title ‘Burden of proof ’, the CCP also stipulates that ‘facts which are not proven beyond a reasonable doubt may not be considered to the detriment of the suspect’. This provision regulates both the burden,258 and the standard of proof. According to the legal literature this provision relates only to questions of fact, only to decisions on the merit of the case, and only when there is no possibility of obtaining further evidence.259

2. The Right of the Defence to Undertake Investigative Measures/Acts in their own Right The CCP does not contain any special provisions regarding suspects (or their defence lawyers) undertaking investigative acts in their own right. If exploration (or proving) of a certain fact is necessary for the defence, investigative measures may be carried out by suspects (or their defence lawyers). They may resort to the help of private investigators to gather evidence and request information.260 Neither a suspect (defence lawyer), nor a private investigator may resort to coercion, enter into private premises or violate personal secrets. Private investigators shall work under the Act on Private Investigation, but they 250 251 252 253

Tremmel et al (n 12) 78; Király (n 52) 126. Tremmel et al (n 12) 78–79; Király (n 52) 125. Tremmel et al (n 12) 80; Király (n 52) 126. Tremmel et al (n 12) 83; Király (n 52) 126–27 (partly different requirements for judges and for prosecu-

tors). 254 255 256 257 258 259 260

Tremmel et al (12) 77; Király (n 52) 125; Karsai, Szomora (n 2) 134. CCP s 4. CC s 182. CC s 77/B (1)(b), (4) and (5)(c). As alleged by Tremmel et al (n 12) 81. Ibid 81–82. s 34(a) Act No CXXXIII of 2005 on Security Services and the Activities of Private Investigators.

The Rights of the Suspect/Defendant During Investigation and Prosecution

333

have no wider rights than the suspect (or the defence lawyer). Private persons are not obliged to inform private investigators; authorities should provide information only if they are obliged to do so for the suspect or to the defence lawyer. In the course of investigation the suspect (or the defence lawyer) may motion for the assignment of an expert. The decision on assignment shall fall within the discretion of the prosecutor.261 The suspect and the defence lawyer may inform the prosecutor or the court that they intend to obtain and submit an expert opinion.262 The decision on the involvement of the person requested by the suspect (the defence lawyer) as an expert shall fall within the discretion of the prosecutor in the pre-trial phase. After having been involved as an expert, the person requested by the suspect (the defence lawyer) shall be entitled to the same rights and bound by the same obligations as the expert assigned by the court (or by the prosecutor).263 If the court (or the prosecutor) refuses to involve the person as an expert, the opinion prepared may be used according to the rules pertaining to documents (cf section D2).264

3. The Right to Legal Assistance Suspects are entitled to defend themselves and may also be defended by a lawyer at any phase of the proceedings,265 including the investigation.266 The statement by the suspect concerning his/her wish to retain a defence lawyer (or a request for the appointment of a lawyer) shall be recorded in the minutes.267 From this regulation, it may be concluded that the suspect shall be informed of this right at the very start of the first interrogation. If the person to whom the suspicion is to be communicated is detained, information about the right to legal assistance shall be provided before the first interrogation (see section E9).268

4. The Right to have Another Person Informed about One’s Arrest The relative of the suspect designated by him/her shall be notified of the arrest and the place of detention within 24 hours. In the absence of such a relative, notification shall be made to another person designated by the suspect.269 When the decision on arrest is pronounced, the suspect shall be asked about the person to be informed about his/her arrest.270 If designated relatives etc have not been noted at the time of arresting the suspect, their names shall be recorded without delay by the investigative authority after the questioning of the suspect whose pre-trial detention was ordered by the pre-trial judge.271

261 262 263 264 265 266 267 268 269 270 271

CCP s 111(2). CCP s 112(1). CCP s 112(2). CCP s 112(3). CCP s 5(3). A Kádár, ‘Hungary’ in E Cape (ed), Effective Criminal Defence in Europe (Antwerp, Intersentia, 2010) 331. Investigation Decree s 5. Investigation Decree s 6. CCP s 128(1). Investigation Decree s 59(1). CCP s 134.

334 Hungary 5. The Right to Submit Written Statements The suspect is entitled to present facts regarding his or her defence at any stage of the procedure, and to make motions and objections,272 including written statements.

6. The Right to Ask for a Special Act of Investigation The suspect is also entitled to ask for a special act of investigation.

7. The Right to be Informed that his/her Statements may be Used as Evidence The suspect must be warned that anything he/she says or provides may be used as evidence. The warning and the response of the suspect shall be included in the records verbatim.273 This warning shall be made at the commencement of the interrogation,274 after the suspect has responded to the questions relating to his/her name, date and place of birth, mother’s name, permanent address (place of residence), personal identification document number and citizenship.275

8. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement The testimony of the suspect, as well as motions and observations made during the investigatory action, shall be detailed to the necessary extent in the minutes.276 The person questioned may motion for a verbatim transcription of his testimony.277 The prosecutor or the investigating authority may reject this motion if he considers it unjustified.

9. The Right to Refer to Documents During Interview The suspect may refer to documents during the interrogation. The person summoned may be requested to bring, in addition to the documentation regarding the case, notes or other property that may be used as evidence.278 The suspect may be informed about the right to refer to documents during interview, when summon is served on him/her. However, the inclusion of such a warning in the summons is not obligatory.

272 273 274 275 276 277 278

CCP s 43(2)(d). CCP s 117(2) sent 2. CCP s 117(2) sent 1. CCP s 117(1). CCP s 166(3) sent 2. CCP s 166(3) sent 3. CCP s 67(5).

The Rights of the Suspect/Defendant During Investigation and Prosecution

335

10. The Right to Consult Relevant Legal Acts The suspect may consult relevant legal instruments. Investigative authorities or prosecutors are, however, not required to provide the texts thereof during the interrogation. 11. The Right to be Informed about Possibilities of Reconciliation with the Victim If the conditions of active repentance (and mediation procedure) are fulfilled (cf section C3), the suspect shall be informed about the possibility and the rules thereof.279 The investigating authority shall record the information provided about the mediation procedure and the related statements of the suspect in the minutes.280 Similar rules apply to victims interrogated as witnesses.281 The suspect shall be informed about possibilities of reconciliation with the victim on his/her first interrogation.282 12. The Right to be Informed of the Place of Detention The suspect’s designated relative shall be notified of the arrest and the place of detention within 24 hours; in the absence of such a relative, notification shall be made to another person designated by the suspect.283 If details of designated relatives etc have not been taken at the time of arresting the suspect, they shall be taken without delay by the investigative authority after the questioning of the suspect whose pre-trial detention was ordered by the pre-trial judge.284 The decision on arrest shall contain the place of detention,285 and shall be communicated to the defence lawyer.286 The defence lawyer appointed shall be informed of the place of custody.287 The suspect in custody is entitled to contact his or her defence lawyer and communicate with him or her both in writing and verbally without restriction.288 The suspect may obtain, therefore, information from the investigating authorities, from his relatives etc or in the last resort from his or her defence lawyer. 13. The Right to be Informed of the Charges The prosecutor shall press charges by filing the bill of indictment (the document in which the prosecutor states the charges and lists the evidence) to the court.289 The trial judge (presiding judge) shall send the bill of indictment to the accused and the defence lawyer.290 279 280 281 282 283 284 285 286 287 288 289 290

Investigation Decree s 121(3) sent 1. Investigation Decree s 121(3) sent 2. Investigation Decree s 19(4). Investigation Decree s 121(3) sent 1. CCP s 128(1). CCP s 134. Investigation Decree s 58(1) sent 2. Investigation Decree s 169(4) sent 3. CCP s 48(1) sent 4. CCP s 43(3)(a). CCP s 217(1). CCP s 263(2).

336 Hungary The bill of indictment shall contain, inter alia, the following: — — —

a description of the act(s) constituting the offence for which charges are pressed; the section of the CC allegedly violated by the act; a list of the evidence to be considered by the court and an indication of which facts each piece of evidence substantiates.291

14. Access to the File During Pre-Trial Proceedings The Hungarian legal system provides for the right to access to the file containing documentation of the procedure during pre-trial proceedings. This file includes documents containing confidential information (in essence state secrets and official secrets).292 During the investigation, the defence is restricted in knowing the basis for the investigation, since its access to documents is limited. Suspects and defence lawyers may access only the expert opinions and minutes of those investigative acts where they can be present,293 namely eg inspection and reconstruction.294 The suspect and defence lawyer may inspect other documents only if this does not impair the investigation,295 which is determined by the investigative authority (or the prosecutor). After the conclusion of the investigation, the investigative authority must present the complete case file to the defence. The suspect and defence lawyer are allowed to inspect all documents that may serve as the basis for indictment,296 and have full access to the file, except for restricted documents.297 Victims have limited access to the file, namely only documents affecting him or her.298 Rights of the victim shall apply to persons whose property may be forfeited or confiscated.299 The suspect shall not be enabled to inspect certain documents of the case, eg which contains personal data of the protected witness.300 Suspects and defence lawyers are entitled to free copies of those documents they are entitled to inspect.301 Failure to provide access to the file may constitute substantial impairment of the participants’ procedural rights, and may substantiate disciplinary liability of members of the investigating authorities. However, the provision on excluded evidence,302 may not be applied in this event, since the evidence is not obtained through substantial impairment of the participants’ procedural rights, even if the access to the file is withheld. The appellate court may quash the judgment of the court of first instance if, inter alia, persons participating in the proceeding were prevented from or restricted in exercising 291 292 293 294 295 296 297 298 299 300 301 302

CCP s 217. CCP s 70/C(1). CCP s 186(1) and (2). CCP s 185(1) sent 1. CCP s 186(2). CCP s 193(1). CCP s 193(1). CCP s 51(2)(a). CCP s 55(2). CCP s 96(1). CCP s 186(3). CCP s 78(4).

The Rights of the Suspect/Defendant During Investigation and Prosecution

337

their lawful rights.303 This provision is not applicable, however, if access to the files was denied by the investigative authority, but was provided by the court of first instance.

15. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) Criminal proceedings shall be conducted in Hungarian.304 However, all persons participating in criminal procedures—suspects, witnesses etc—may use, both orally and in writing, their native language. They can also use their regional or minority language as provided by international conventions. Native language and regional or minority language may be used even if the person concerned speaks Hungarian. Participants of criminal procedures can use another language (specified by them) if they do not speak Hungarian.305 The state shall bear the cost incurred because the accused cannot command the Hungarian language, or has used his regional or minority language in the course of the proceedings, even if the accused is declared guilty.306 Translation of the decisions is the responsibility of the court (prosecutor or investigating authority) which has adopted it.307 This provision is not applicable if the suspect waives his right to a written translation.308 However, written translation shall be made of the relevant parts of the bill of indictment309 and the relevant parts of the judgment.310 According to the CCP only persons having the qualification stipulated in a separate legal regulation may be interpreters in criminal procedures.311 The term ‘interpreter’ shall include translators of documents as well.312 The following persons may not act as an interpreter: — — — —

those who have participated in the case as a suspect, defence lawyer, a victim, complainant or a representative thereof, or any relative of the above; those who have acted in the case as a judge, prosecutor or a member of the investigative authority, or a relative thereof; those who have participated in the case as a witness; those who cannot be expected to provide an unbiased translation for other reasons.313

The interpreter of an institution may not act as an interpreter, if the head of the institution participates in the case as a suspect, defence lawyer, a victim, complainant or a representative thereof, or is a relative of the above.314

303 304 305 306 307 308 309 310 311 312 313 314

CCP s 375(1). CCP s 9(1) sent 1. CCP s 9(2). CCP s 339(2) and 338(1). CCP s 9(3). CCP s 9(4). CCP s 219(1). CCP s 262(6). CCP s 114(3) sent 1. CCP s 114(3) sent 2. CCP s 103(1)(a)–(c), (g) and 114(3) sent 1. CCP s 103(1)(e) and 114(3) sent 1.

338 Hungary The obstacles of being an interpreter shall be recognised if they had existed either during the commission of the criminal offence or at the time of the examination.315 Suspects are entitled to defend themselves and may also be defended by defence lawyer at any phase of the proceedings,316 including the investigation.317 Defence is mandatory in the pre-trial stage (i) if the underlying criminal offence is punishable by imprisonment of five years or more.318 Defence is also mandatory, if the suspect is (ii) detained; (iii) deaf, blind or suffering from a mental disorder; (iv) unfamiliar with the Hungarian language; (v) unable to defend him/herself in person for any other reason;319 (vi) a juvenile.320 Defence is also mandatory in certain special procedures, such as expedited hearing,321 as well as in procedures carried out in absentia.322 The court, the prosecutor or the investigating authority shall also appoint a lawyer for the defence, if defence is not mandatory, but the suspect requests the appointment of a lawyer on the ground of inability to make arrangements for his defence due to his financial standing.323 In cases of mandatory defence, the right to defend oneself does not include the suspect’s right to choose to go through the process without a lawyer. The rights of the suspect and of lawyer (eg the right to appeal or motion witnesses, etc) are independent of each other.324 The mandatory nature of defence does not require the presence of defence lawyer at individual procedural actions in the investigation stage.325 The decision of whom to appoint is made by the appointing authority (it is the investigating authority at the beginning of the procedure).326 This cannot in any way be influenced by the suspect. Under the Attorneys Act,327 the competent bar association keeps a register of those attorneys who may be appointed as defence lawyers. The authority conducting the procedure is completely free to choose from this list.328 In the investigation phase, the defence lawyer is selected by the investigating authority, which is not interested in efficient defence work. In addition, it is difficult to trust a lawyer who was selected by the person who is in charge of the investigation against the suspect. Finally, there are some attorneys who base their law practice principally on such appointments. Such lawyers may become financially dependent on the member of the investigative authority.329 Under the Attorneys Act, there are no fixed fees, and the attorney and the client are therefore free to negotiate and decide the fee.330 In criminal cases, defence lawyer will frequently charge a lump sum for each stage of the proceedings (investigation, judicial phase

315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330

CCP s 83(1) sent 1 and 103(5). CCP s 5(3) sent 1. Kádár (n 269) 331. CCP s 46(a). CCP s 46(b)–(e). CCP s 450. CCP s 518. CCP s 527. CCP s 48(2). Kádár (n 269) 331–32. Ibid 333. CCP s 48(1) sent 1. CCP s 35 Act No XI of 1998 on barristers. Kádár (n 269) 334. Ibid 335. CCP s 9 Act No XI of 1998.

The Rights of the Suspect/Defendant During Investigation and Prosecution

339

up until first instance decision, court of second instance). The fees will also depend on the complexity of the criminal case.331 In almost all cases of mandatory defence, the fees and cost of appointed defence lawyers are advanced by the state, but must be repaid as part of the criminal costs if the suspect is found guilty.332 In these cases, fees are legally regulated, the normal hourly fee is 12 EUR (plus VAT),333 with the exception of consultation with a detained suspect, for which the lawyer receives just half this amount.334 Appointed defence lawyers are entitled to be reimbursed for expenses arising in connection with the case, based on a detailed statement. The costs that may be reimbursed include postal, telephone, travel, parking, copying and accommodation expenses.335 Travel and accommodation can only be reimbursed if the defence lawyer attends a proceeding that takes place away from the place where he/she lives, or where his/her office is located.336 If the defence lawyer fails to submit a detailed account together with documentation verifying the costs, the court establishes the amount to be reimbursed on the basis of the available data.337 For certain activities, such as the drafting of petitions, or consulting with a client who is not detained, no payment is allowed.338 In the case of indigent suspects entitled to personal cost exemption, the state will cover the appointed defence lawyer’s fees and verified costs.339 Personal cost exemption may be granted to the suspect if the per capita monthly income of the household does not exceed a certain amount (approximately 105 or 210 EUR/month).340

16. The Right to Silence During the Pre-Trial Procedure It is a general principle of the CCP that no one may be compelled to make a selfincriminating testimony or to produce self-incriminating evidence.341 The suspect is under no obligation to testify, and he/she may refuse to testify or respond to any question during the interrogation.342 The suspect is obliged to be present on the interrogation.343 At the commencement of the first interrogation, the suspect must be advised that he/she is not under an obligation to testify, and that he/she may refuse to testify or respond to any question during the interrogation.344 The warnings and the suspect’s response shall be included in the records verbatim.345 In the absence of such warnings, the testimony of the suspect

331

Kádár (n 269) 340. CCP s 338(1) and 74(1)(c). 333 Decree on Fees s 6(2)–(6), Decree no 7/2002 (III 30) of the Minister of Justice on the Fees and Expenses of Ex Officio Appointed Patron Lawyers and Defence Lawyers. 334 Decree on Fees s 6(7). 335 Decree on Fees s 1(2). 336 Decree on Fees s 2(2). 337 Decree on Fees s 4. 338 Kádár (n 269) 340. 339 CCP s 339(1) and 74(3)(c). 340 Costs Exemption Decree 2, Decree 9/2003 (V 6) of the Minister of Justice on the Application of Personal Exemption of Costs in the Criminal Procedure. 341 CCP s 8. 342 CCP s 117(2) sent 1. 343 CCP s 67(1) sent 1. 344 CCP s 117(2) sent 1. 345 CCP s 117(2) sent 2. 332

340 Hungary may not be admitted in evidence.346 Even if the suspect refuses to testify, he or she shall be obliged to respond to questions relating to his or her name, date and place of birth, mother’s name, permanent address (place of residence), personal identification document number and citizenship.347 The suspect may refuse to facilitate the performance of the professional examination by supplying information.348 The suspect shall submit himself or herself to the professional examination or treatment of the expert, unless it involves an operation or an examination procedure which is tantamount to an operation.349 The suspect shall permit anything in his possession to be examined by an expert, even if this involves damage to or destruction of the object.350 The suspect shall tolerate coercive measures, including arrest, body search and seizure etc.

17. Rights of Legal Persons in Criminal Proceedings Legal persons are not regarded as suspects in criminal proceedings,351 Measures of substantive criminal law against legal persons shall be applied in criminal proceedings conducted against natural persons.352 The relevant Act provides for a special counsel for legal persons whose connection to the criminal offence is investigated. This counsel for the legal person shall be an attorney.353 The defence lawyer may not be the counsel for the legal person.354 The counsel for the legal person shall be retained by the chief executive of the legal person.355 The suspect, the relative of the suspect and the defence lawyer may not, however, retain counsel for the legal person.356 If the legal person has no retained counsel, the court, prosecutor, investigating authority shall appoint a lawyer.357 The provision on the defence lawyer shall be applied accordingly to this special counsel for the legal person.358 However, the counsel for the legal person may be present on an investigative act, if the purpose thereof is to clarify the connection of the legal persons and the criminal offence or the premises used by the legal person are searched.359 It may inspect the documents relating to the legal persons after the conclusion of the investigation.360

346

CCP s 117(2) sent 3. CCP s 117(1). 348 With the provision according to only victims shall facilitate the performance of the professional examination in other ways (eg by supplying information). Cf CCP s 106(1) third sentence. 349 CCP s 106 (1) sent 2. 350 CCP s 106 (1) sent 4. 351 F Sántha, A Jogi Személy Bünteto ´´jogi Felelo´´sségéro´´l (Budapest, KJK-Kerszöv, 2002) 148–49. 352 Act No CIV of 2001 s 7(3). 353 Act No CIV of 2001 s 9(1) sent 1. 354 Act No CIV of 2001 s 9(1) sent 2. 355 Act No CIV of 2001 s 9(2). 356 Act No CIV of 2001 s 9(3) sent 1. 357 Act No CIV of 2001 s 9(1) sent 2. 358 Act No CIV of 2001 s 9(4). 359 Act No CIV of 2001 s 9(5)(a). 360 Act No CIV of 2001 s 9(5)(b). 347

The Rights of the Suspect/Defendant During Investigation and Prosecution

341

The prosecutor shall notify the counsel for the legal person if he ordered that the connection of the criminal offence and the legal person361 shall be revealed by the investigative authorities. This notification shall take place eight days before the exposition of the documents of the investigation for the suspect and defence lawyer.362 Criminal proceedings may be conducted even if the natural person is dead or he/she is not punishable due to insanity.363 This possibility, however, does not convert legal persons to suspects of these exceptional criminal proceedings.

361 These connections may be preconditions of applying measures of criminal law against legal persons (Act No CIV of 2001 s 2). 362 Act No CIV of 2001 s 12(2). 363 Act No CIV of 2001 s 7(3) sent 2.

9 Ireland ANDREA RYAN

A. GENERAL OVERVIEW OF CRIMINAL PROCEDURE IN IRELAND

I

RISH LAW OPERATES under the common law system and follows an adversarial model of investigation and trial. In addition to the common law1 and legislation, Irish criminal law and procedure are also governed by a written Constitution that includes the protection of liberty, privacy rights and the right to a fair trial. Where a crime is suspected or reported it is the function of the Garda Siochána (the Irish police force) to initiate the investigation. The investigative function of the police is independent of the Director of Public Prosecutions (DPP) and his office; nor are the police subject to direction or supervision by the judiciary.2 The Garda Siochána has therefore full responsibility for the investigation of crime, they also make the decision whether to prosecute in respect of most minor offences, and conduct those cases in court. It is the function of the DPP and his staff to make the decision whether to prosecute in any indictable offence. The overall direction of serious cases after the decision to prosecute rests with the DPP while the Solicitor’s Division is responsible for the general preparation of the case. The role of the judiciary at the investigative stage is quite limited. Judges have no function in the investigation of offences other than issuing arrest/search/surveillance warrants where required, determining whether the detention of arrested suspects may be lawfully extended and bail applications. Cases for the most part commence in the District Court. Where the case relates to a summary charge, it can be disposed of in the District Court and prosecuted by the Garda Siochána (summary cases do not need a decision or consent from the DPP), whereas indictable offences will proceed on to the Circuit or Central Criminal Court for trial before a judge and jury.

1 The common law refers to the law as built up historically by judicial decisions in response to the cases that came before the courts. Few pure common law offences remain, most having been subsumed by legislation, but the legislation is still subject to interpretation by the courts, and the decisions of the higher courts must be followed by the lower courts according to the doctrine of precedent. 2 The Office of the DPP is fully independent; criminal cases are conducted on behalf of the People, in the name of the DPP; prosecutors do not belong, unlike the position in many civil law systems, to the judiciary. All trial participants, judges, prosecution and defence counsel will have followed a career path as lawyers, working interchangeably as lawyers for the prosecution side or the defence side. Judges are appointed from this general pool of lawyers, usually quite late in their career, having sufficient experience in practice to qualify for the position. See generally Judicial Appointments Advisory Board Annual Report 2009 (available through www.courts.ie).

General Overview of Criminal Procedure in Ireland 343 1. Arrest and Detention Prior to 1984, arrest was considered to be ‘simply a process of ensuring the attendance at Court of the person so arrested’ and was not permitted ‘for the purpose of interrogation or the securing of evidence from that person’.3 The Criminal Justice Act (CJA) 1984 marked the beginnings of detention for questioning becoming the norm, and also created a new source of challenge to the admissibility of the evidence gathered through questioning suspects. Arrest at common law has been to a large extent superseded by the provisions of the Criminal Law Act (CLA) 1997. The CLA abolished all distinctions between felony and misdemeanour and created a single category of an ‘arrestable offence’, defined as an offence which may be punished by imprisonment for a term of five years or more.4 An arrest may be made without warrant under section 4(1) of the CLA 1997 by any person who with reasonable cause suspects another to be in the act of committing an arrestable offence or, under section 4(2), to arrest another where an arrestable offence has been committed, and the person seeking to make the arrest has reasonable cause to suspect that that other is guilty of it. As to what may give rise to ‘reasonable cause’, the Supreme Court considered the following to be a correct statement of the law: ‘it has never been held that what would found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial’.5 Following the arrest of a person by the police, the suspect may be detained for questioning and depending on the nature of the offence, may be held in police custody for periods set down by statute. The norm for detention in police custody is 24 hours maximum, but a longer period is provided for certain serious offences,6 and for drug trafficking offences a suspect may be held in police custody up to a maximum of seven days. A new procedure for detention has recently been introduced to Irish law, specifically targeted at the area of financial crime and ‘white collar crime’. It is the norm for a police detention to roll out in a continuous period of 24 hours (or seven days at the maximum), thus giving the police only a limited window of time to obtain all the evidence they can from the suspect, since they will not be able to question him again once the detention has expired. This means that the police cannot follow up on evidence obtained from the suspect and then put to the suspect at a later stage any further evidence that they have managed to discover against him. The purpose of the new procedure is to allow the police to follow up on information obtained during questioning and conduct further investigations during the suspension period. The Act applies this provision only to ‘relevant offences’, a relevant offence being broadly speaking those falling into the areas inter alia of banking and financial activities, money laundering and financing terrorism, offences under company law, bribery and corruption. Section 7 of the Act amends the detention powers of the 1984 Act to allow for the detention of a person who is being detained on suspicion of committing a ‘relevant offence’ to be suspended where the member in charge of the police station ‘has reasonable grounds for

3

People v Shaw [1982] IR 1-29 (IESC) (Walsh J). CLA 1997, s 2(1). 5 DPP v Cash [2010] IESC 1 (Fennelly J). 6 The Criminal Justice Act 2007, s 50 provides for seven days’ maximum detention in cases of murder, false imprisonment and possession of firearms with intent to endanger life; see also Offences against the State (Amendment) Act, s 10 which permits a maximum of 72 hours’ detention. 4

344 Ireland believing that it is necessary for the purpose of permitting enquiries or investigations to be made for the further and proper investigation of the offence’. The normal period of detention remains 24 hours, but during that time period, up to a maximum of two periods of suspension are permitted. At the time of the suspension, the suspect must be notified of the date and time when he is to return again to the police station (the date can subsequently be amended where necessary), and failure to return will result in his arrest7—but no form of control is imposed such as surrendering of passport etc. The total time for which a detention may be suspended is four months from the date on which the detention was first suspended. Following the expiry of the permitted police detention, the suspect must be brought before the District Court to be formally charged. (The suspect may alternatively be released on police bail to appear before the court at a later date on foot of a summons.) Having been charged before the District Court, the accused will be remanded in custody or released on bail.

2. Other Means of Gathering Evidence During Investigative Stage While the criminal process will normally be initiated by the arrest of a suspect,8 the police investigations may have begun well in advance of an arrest. The powers of the police have recently been extended so as to enable the courts to use evidence of earlier investigations. The Criminal Justice (Surveillance) Act 2009 provides a statutory basis for the Gardaí to carry out surveillance, defined as ‘monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications,’ and ‘monitoring or making a recording of places or things’. Although introduced in the context of enabling the Gardaí to gather evidence against persons involved in ‘gang crime’, the act is all-embracing, extending the powers to cover all arrestable offences, whether involving individuals or groups. It is therefore in no way restricted to combating ‘organised crime’. The Act provides for a Garda not below the rank of superintendent to make prior application to a judge for authorisation to initiate a surveillance procedure. It can be applied for during an investigation or ‘operation’ to obtain information (a) ‘as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence’; (b) to prevent the commission of arrestable offences, or (c) to maintain the security of the State.9 In addition the applicant must have reasonable grounds for believing that the surveillance is the least intrusive means available, proportionate to its objectives, having regard to all the circumstances including its likely impact on the rights of any person, and of a duration that is reasonably required to achieve its objectives. Earlier investigations may also have been conducted in relation to crimes with a financial dimension by the Criminal Assets Bureau (CAB).10 The officers of the bureau benefit from powers of search and seizure, including powers to access financial records. Members of the bureau are drawn from the Garda Siochána, the Revenue Commissioners and the

7

Criminal Justice Act 2011, s 8. In the case of minor offences there may simply be a summons issued to the suspect to appear before the District Court to answer the charge. 9 s 4. 10 See generally Criminal Assets Bureau Act 1996; Proceeds of Crime Act 1996. 8

Evidence 345 Department of Social and Family Affairs. The purpose of the CAB is to identify assets of a person suspected to derive from criminal activity and to deprive those persons of these assets. The freezing of assets follows a civil as opposed to criminal process and a criminal conviction in relation to obtaining the proceeds of crime is unnecessary for the imposition of a freezing order.

3. Obtaining Witness Statements It is the norm for investigations to proceed in any crime by the questioning of any witnesses, however there is no compulsion on witnesses to volunteer information to the police. The Criminal Justice Act 2011 departs from this norm and makes it an offence for a person to withhold information that he or she knows or believes might be of material assistance in preventing the commission of a ‘relevant offence’ or the prosecution and conviction of such an offence.11

Other provisions in the Act allow the police to apply to the District Court to make an order to a person to produce documents and to provide information to the police, either by answering specified questions or by making a statement to the police, and ‘to make a declaration of the truth of answers to such questions’.12 The information that must be provided relates solely to information that the person concerned has obtained ‘in the ordinary course of business’.13

4. Sending Forward for Trial In all cases, the initial police file will be sent to the DPP at the end of the police detention but the police investigation may continue after this point. It is important to note that no further questioning of the suspect is permitted once the person is released from police custody and formally charged with an offence. While questioning of witnesses may continue throughout the investigation, the accused person may not be called in for any further questioning or scientific tests. When the decision to prosecute has been made by the DPP, the evidence is compiled and the book of evidence is served on the accused and his legal representatives. Following service of the book of evidence, the District Court sends the accused forward for trial, either to the local Circuit Court, or if the case relates to murder or rape, to the Central Criminal Court. In either case, the accused will be tried by a jury; it is for the jury alone to decide the verdict, and no reasons for their decision are given.

B. EVIDENCE

The focal point of the Irish criminal justice system is the trial itself; as such, there is no pre-trial stage where decisions about admissibility of evidence are made, these issues are

11 12 13

Criminal Justice Act 2011, s 15. Ibid. Ibid.

346 Ireland raised during the trial itself. It is the trial judge who decides whether evidence should be excluded, and this decision is made following an application by the party objecting to the evidence through a procedure known as ‘voir dire’, or ‘trial within a trial’. This procedure occurs during the currency of trial: the disputed evidence is tested through examination and cross-examination of the relevant witnesses. The application to exclude the evidence is held in the absence of the jury, who are sent to the jury room until the hearing of the application is concluded. If the judge decides to exclude the evidence, the jury will never know of its existence. Should the trial judge decide the evidence is admissible, the same evidence will be tested again through examination and cross-examination of the relevant witnesses, this time in the presence of the jury.

1. The Approach in Ireland to Illegally Obtained Evidence The position regarding illegally obtained evidence or evidence obtained in breach of a suspect’s constitutional rights was first established in Ireland by the Supreme Court in People (AG) v O’Brien,14 and gradually refined and extended in subsequent case law. The central issue in O’Brien concerned the admissibility of evidence obtained on foot of a search warrant where the address of the premises to be searched was wrongly stated on the warrant. The error had not been noticed by any of the parties concerned prior to the entry. The Supreme Court differentiated between evidence that was obtained illegally or improperly on the one hand, and evidence obtained in breach of a suspect’s constitutional rights on the other. The common law approach to improperly obtained evidence, as captured in the statement by Crompton J in R v Leatham: ‘it matters not how you get it; if you steal it even, it would be admissible’,15 was rejected by Kingsmill Moore J in his judgment with regard to illegally or improperly obtained evidence. He approached the matter by balancing the competing interests: on the one hand, the public interest that crime should be detected and punished, and on the other, ‘that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods’.16 This balancing approach continues to prevail with regard to the admissibility of illegally or improperly obtained evidence. It is always a matter for the discretion of the trial judge. The submission that certain evidence be excluded is made during the trial; the procedure that follows, the ‘voir dire’, unfolds in the absence of the jury. The evidence is examined by way of examination and cross-examination of the witnesses involved in the gathering of the disputed piece of evidence, and the parties to the proceedings make their submissions to the trial judge as to why it should be excluded or admitted; if the trial judge rules that it should be excluded, the jury will never become aware of the particular piece of evidence. If it is admitted, the evidence is led through examination and cross-examination of the witnesses involved, this time in the presence of the jury who are the final arbitrators of fact. A typical example of illegally obtained evidence would be evidence obtained during police custody involving a breach of the CJA 1984 (Treatment of Persons in Garda Siochána Stations) Regulations 198717 (the Custody 14 15 16 17

People (AG) v O’Brien [1965] IR 142 (IESC). R v Leatham (1861) 8 Cox CC 498. [1965] IR 142 (IESC) 160 (Kingsmill Moore J). SI 119/1987.

Evidence 347 Regulations) or the CJA 1984 (Electronic Recording of Interviews) Regulations 199718 (the Electronic Recording Regulations). The position regarding admissibility of evidence is different where evidence has been obtained in breach of constitutional rights. The starting point for the issue of admissibility of unconstitutionally obtained evidence appears in the judgment of Walsh J in People (AG) v O’Brien. In his view, where an illegal act amounts to an infringement of a constitutional right, the vindication of constitutional rights of the citizen is a fundamental duty of the courts, a duty which ‘cannot yield place to any other competing interest’.19 On that basis, the courts ‘must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist’. While Walsh J was reluctant to give a definitive list of which circumstances would fall under the category of ‘extraordinary excusing’, he did give some examples: the need to rescue a victim in peril, the saving of vital evidence from imminent destruction, and evidence obtained ‘incidental to and contemporaneous with a lawful arrest, although made without a valid search warrant’. Any evidence obtained outside any excusing circumstances should be ‘absolutely inadmissible’.20 In O’Brien, Walsh J ruled that on the facts of the case, the evidence was not obtained through a deliberate and conscious breach of the constitutional rights of the accused, but instead had been procured through a simple error. This implied that the phrase ‘deliberate and conscious’ did not include breaches resulting from inadvertence, and this interpretation continued to find favour in subsequent cases. For example, the court in People (DPP) v Madden appeared to consider inadvertent breaches as falling within the concept of ‘extraordinary excusing circumstances’.21 In the later case of People (DPP) v Shaw22 Griffin J, delivering the majority judgment, was of the view that ‘it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious’ in order to attract the exclusionary rule.23 Walsh J, in a minority judgment in Shaw, clarified the issue further when he stressed that ‘accidental and unintentional’ infringements of the Constitution would be insufficient to attract the strict exclusionary rule, but also stressed that ‘extraordinary excusing circumstances’ and ‘accidental and unintentional infringement’ are ‘quite separate matters’.24 He emphasised that ignorance on the part of police officers of the fact that they were breaching constitutional rights would not save the evidence from the sanction of exclusion: ‘there is nothing whatever in O’Brien’s Case to suggest that the admissibility of the evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law’.25 Walsh J also considered that the decision by police officers to do an act which breaches the constitutional rights of a suspect on the basis that there are extraordinary excusing circumstances which justify their 18

SI 74/1997. People (AG) v O’Brien [1965] IR 142 (IESC) 170. Ibid. 21 People (DPP) v Madden [1977] IR 336. In the view of this court, in these circumstances the onus on the prosecution of showing that there had been some factor such as inadvertence which might excuse the failure to observe the end of the period of lawful detention, or some other extraordinary circumstance such as was envisaged in O’Brien (Higgins CJ) 346 (emphasis added). 22 People (DPP) v Shaw [1982] IR 1. 23 Ibid 56. 24 Ibid 33. 25 Ibid 33. 19 20

348 Ireland actions does not thereby make their act lawful: ‘the unlawful character of the act remains unchanged however well intentioned it may be’.26 In other words, it is not for the police to decide in advance that they are entitled to breach a persons constitutional rights because in their view the circumstances so warrant; the issue of whether evidence may be admitted despite a breach of constitutional rights is for the court of trial to decide, having regard to whether, in its view, extraordinary excusing circumstances excuse the breach. The meaning of the phrase ‘deliberate and conscious’ was finally settled by the Supreme Court in People (DPP) v Kenny,27 which continues to be the authoritative decision regarding the exclusionary rule. In Kenny, the Gardaí had found a quantity of heroin following a search of a private dwelling on foot of a search warrant. The applicant argued that this evidence should be ruled inadmissible, on the basis that the search warrant was invalid. The law required that before issuing a warrant under the Misuse of Drugs Act, a Peace Commissioner should himself be satisfied that there were reasonable grounds for suspecting that drugs were being kept on the premises.28 However there was no evidence that the Peace Commissioner, who had died before the case came to trial, had inquired into the basis of the Garda’s suspicion. It was evident that he had acted purely ‘on the say-so’ of the Garda who had called to him to obtain the warrant, rather than using his own discretion as required by the section, therefore the warrant was invalid. It was argued on behalf of the appellant that, irrespective of whether either of the police officers was aware that he was invading the constitutional rights of the accused, and regardless of whether either of them could be described as being culpable or blameworthy, the evidence should have been ruled inadmissible on the basis that there was a conscious and deliberate breach of his constitutional rights. Finlay CJ declined to follow the majority judgment in Shaw as to its finding that ‘it is the violation of the person’s constitutional rights, and not the particular act complained of, that has to be deliberate and conscious for the purpose of ruling out a statement’. Instead, echoing MacCarthy J in Healy,29 he focused on the nature of the particular act which has given rise to the breach of constitutional rights: I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its [the court’s] discretion.30

It is important to note that the reference to ‘unintentionally or accidentally’ is not related to an inadvertent breach of constitutional rights, as in the earlier cases, (such as entry to a premises without noticing that the address was incorrectly stated on the warrant) but refers to the act itself; in other words, was the act of entry itself deliberate and conscious, or was it accidental (accidental here having its ordinary meaning)? This gave a very different slant to

26

Ibid 40. People (DPP) v Kenny [1990] 2 IR 110 (IESC). 28 Misuse of Drugs Act 1977 as amended, s 26. 29 People (DPP) v Healy [1990] 2 IR 73 (IESC) (MacCarthy J) 89: ‘In my view, if “conscious and deliberate” is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise he was in breach of a constitutional right is irrelevant’. 30 [1990] 2 IR 110 (IESC) 134. 27

Evidence 349 the meaning of ‘deliberate and conscious’ than when the phrase was first used in O’Brien, and recast the exclusionary rule so as to make it the strictest in the common law world.31

2. Fruit of the Poisoned Tree The exclusionary rule as expressed in People (AG) v O’Brien referred to evidence obtained as a result of a conscious and deliberate violation. In People (DPP) v Healy it was stated by Finlay, J: ‘The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Siochána, is whether there is a causative link between that breach and the obtaining of an admission’.32 There is little difficulty in finding a causative link in cases where the breach of a constitutional right is related to inviolability of the suspects private dwelling, so where a Garda discovers real evidence on foot of an invalid search warrant, that evidence has been procured as a result of the breach of the constitutional rights of the suspect and must be excluded, no matter how cogent. The situation is somewhat more complex where the breach relates to failure to provide the suspect with access to legal advice when the suspect is in police custody. Where the suspect is refused access to legal advice, this results in the detention becoming unlawful, and therefore in breach of the constitutional right of liberty of the suspect. If a statement is taken from the suspect during this period of unlawful detention, it will attract the strict exclusionary rule. However, once a suspect is given access to a lawyer, this cures the earlier unlawful detention, and the detention becomes lawful. Any statement taken during this lawful period remains admissible as evidence, provided no causative link exists between it and any earlier statements or admissions. In DPP v Ryan33 the appellant was not given access to a lawyer following his arrest and detention in police custody on suspicion of murder; during that period the appellant was interviewed by police on a number of occasions, and made incriminating statements. All those statements had been ruled inadmissible by the trial judge, who found that the appellant had been in unlawful detention because he had not been given access to a solicitor. The appeal concerned one statement that had been admitted by the trial judge on the basis that at the time it had been taken, the appellant should no longer have been considered to have been in unlawful detention, since he had been afforded the opportunity to speak with his solicitor on the telephone. The argument before the Court of Criminal Appeal was that a statement made during the lawful period of custody should be excluded on the basis that there was a causative link between statements made during the earlier unlawful period and the statement made during the lawful period. It was argued that the latter statement was tainted, as it had been obtained through reliance on information given by the accused during the earlier unlawful period. The Court found on the facts that such was not the case: what is to be deprecated is the use of material that has been wrongfully obtained in breach of the accused’s constitutional rights to obtain an inculpatory statement or admission. The ‘O’Brien

31 32 33

See the sentiments of Charlton J in DPP v Cash [2007] (IEHC) 108. People (DPP) v Healy [1990] 2 IR 73 (IESC) 81. DPP v Ryan [2011] IECCA 6.

350 Ireland test’, as the applicant characterises it, speaks of ‘the use of information’ gained.34 The word ‘use’ as deployed in the particular context connotes the positive or active sense of that word, namely the conscious employment of relevant unconstitutionally obtained information towards the achievement of a specific end, namely the obtaining of an inculpatory statement or admission (whether that be a new statement/admission or a reiterated statement/admission). This Court considers that for an inculpatory statement to be excluded on those grounds there must be clear evidence that the sole source of the material used to elicit that statement was the accused. The inculpatory statement must have been ‘obtained’ exclusively by the use of the unlawfully sourced material. If material used to obtain an inculpatory statement is also available to the police from another, lawful, source then the police may legitimately use that material in questioning an accused notwithstanding that he may have spoken about it previously in the course of an unconstitutional interview.35

A related argument by the appellant was that there was a general causative link on the basis that the statement taken during the lawful period of detention was tainted by the psychological effects of the earlier period of unlawful detention. The Court rejected that argument in the following terms: In effect, this Court has been invited to conclude that there was such a causative link based upon ‘human psychology’ as it was put. The suggestion that such a link must exist is put forward as if it were a proposition so obvious that the Court should adopt it without any need for evidence, and as though judicial notice ought to be taken of it as being a fact not reasonably disputable on the basis of common sense and experience. This Court does not consider that this follows at all in the circumstances of this case. Each case must depend upon its own facts. In some cases a causative link may exist; in others it may not.36

It used to be considered that even where a person was in unlawful detention due to denial of access to legal advice, evidence which the police are by statute empowered to take, such as breath samples or fingerprints, would be admissible, on the basis that there could not exist a causative link between the breach of the constitutional right of access to a lawyer and the obtaining of the evidence—the evidence would have been obtained regardless of any advice which the suspect would have received from a lawyer under statutory power to obtain it.37 This position has been reviewed, and it is now considered that even where evidence that the suspect is obliged to give under statute has been obtained, if it was obtained during a period when the suspect was in unlawful detention, then regardless of the statutory power, it must be excluded, having been obtained as a result of a deliberate and conscious violation of the suspect’s constitutional rights.38 The cases have noted that the legal provisions available to police for obtaining forensic samples are complex, and involve a choice by the suspect to consent or refuse to provide such samples; however since such refusal carries with it the possibility of adverse inferences being drawn at trial, it is desirable that the suspect should have access to legal advice.39

34 The O’Brien case referred to here is the decision of the Supreme Court: The People (DPP) v O’Brien [2005] IR 206. 35 [2011] IECCA 6. 14. 36 Ibid 13. 37 See Walsh v O’Buaccalla [1991] 1 IR 56 (IECCA); DPP v Spratt [1995] 2 ILRM 117 (IECCA). 38 The People (DPP) v O’Brien [2005] IR 206 (IESC); DPP v Mc Crea [2009] IEHC. 39 DPP v Creed [IECCA]; DPP V White [IECCA] 78.

Evidence 351 3. Admissibility of Written Reports It is the norm that evidence must be given by a witness, orally in open court in the presence of the accused, and that the witness is available for cross-examination. An accused person has a constitutional right to cross-examine every witness for the prosecution, on the basis of the fair trial provisions of the Constitution (arts 38 and 40).40 Documentary evidence is generally inadmissible as evidence because it offends the common law rule against hearsay. The rule excludes out-of-court statements such as, eg statements of witnesses made to the police or a written report of findings by an expert. Expert witnesses may be required to testify orally about the contents of the expert report in court in every case where expert evidence is sought to be adduced. If the out-of-court statement is offered in evidence to prove the facts contained in the statement, it will be considered hearsay under the rules of evidence. Therefore if a document is introduced to prove the truth of its contents, it constitutes documentary hearsay and is generally inadmissible. Five statutory exceptions apply: (a) The Criminal Evidence Act 1992 takes an inclusionary approach to documentary evidence by providing for the admission in evidence of certain categories of documents. Section 5 of the Act allows for the admission of information contained in a document where the latter was compiled in the ordinary course of business. Section 2(1) defines a document as including (i) a map, plan, graph, drawing or photograph, or (ii) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form. The provision does not extend to information compiled for the purposes or in contemplation of any criminal investigation, subject to the following exceptions: (i) the information contained in the document was compiled in the presence of a judge of the District Court and supplied on oath by a person in respect of whom an offence was alleged to have been committed and who is ordinarily resident outside the state; (ii) either section 14 (which deals with the taking of a deposition in the presence of such a judge and the accused) of the Criminal Procedure Act 1967, could not be invoked or it was not practicable to do so; and (iii) the person in respect of whom the offence was alleged to have been committed either has died or is outside the state and it is not reasonably practicable to secure his attendance at the criminal proceedings concerned. Documents compiled for the purposes of criminal proceedings are also admissible as evidence where the document is a map, plan, drawing or photograph, and any accompanying explanatory material where it is a record of a direction given by a member of the police; a record of the receipt, handling, transmission, examination or analysis of any thing by any person acting on behalf of any party to the proceedings; a record by a registered medical practitioner of an examination of a living or dead person; a record of the receipt, handling, transmission or storage of anything by the Forensic Science Laboratory. (b) Section 21 CJA 1984 provides for the admissibility of written statements as proof of the facts asserted in them, provided that a copy of the statement is served by the person tendering the statement on the other party to the proceedings and no objection is made 40

Re Haughey [1971] IR 217 (IESC); The State (Healy) v Donoghue [1976] IR 325 (IESC).

352 Ireland within 21 days of receipt of notice of the intention to tender the statement. The section does not preclude the court or any party to the proceedings from calling the maker of the statement to give evidence before the court. (c) Information or documents obtained as a result of surveillance carried out under the provisions of the Criminal Justice (Surveillance) Act 2009 may be admitted as evidence in criminal proceedings. (d) In certain circumstances, evidence may be received by deposition and that deposition may be admitted as evidence of the facts stated therein at the trial of the offence. This procedure41 allows the prosecution or the defence to apply to the court of trial for an order requiring a person to appear before a judge of the District Court so that their evidence may be taken either by way of sworn deposition, or through a live television link. Provided the accused was present while the deposition was being taken and opportunity was given to cross examine the witness, the deposition may be admitted in evidence at the trial of the accused if it is proved that the witness: is dead; is unable to attend to give evidence at the trial; is prevented from so attending, or does not give evidence at the trial through fear or intimidation, unless the court is of opinion that to do so would not be in the interests of justice. Where the evidence was given through live television link, under this procedure, the video recording shall be admissible as evidence at trial again provided the accused was present and opportunity was given to cross examine the witness. (e) A recent reform provides for the admission as evidence of statements made by a witness to the police if the witness, although available for cross-examination refuses to give evidence, denies making the statement, or gives evidence which is materially inconsistent with it. In order for it to be admitted it must be proved that the witness in fact made the statement and the court is satisfied that it was made voluntarily, is reliable, and would be otherwise admissible. The court may at its discretion refuse to admit the statement having had regard to all the circumstances, including any risk that its admission would be unfair to the accused that in the interests of justice it ought not to be so admitted.42 The CJA 2007 also provides in relation to statements made by a suspect to the police that a recording or a transcript of such a recording or both, of the questioning of the suspect by a member of the Garda Síochána may be admitted in evidence at the trial.43 4. The Status of Evidence Obtained in Another Member State The Criminal Justice (Mutual Assistance) Act 2008 incorporates into Irish law a number of conventions, agreements and protocols in relation to mutual assistance in criminal matters, including the EU Convention on Mutual Legal Assistance in Criminal Matters 2000, the 2001 Protocol to that Convention and the Council Framework Decision (2003) on the execution in the European Union of orders freezing property or evidence. Section 99 of that Act provides that evidence obtained on foot of a request may not be used for purposes other than those for which the request was made. No provisions are made under

41 42 43

See the Criminal Procedure Act 1967 (as Amended by Criminal Justice Act 1999, s 9), ss 4F–4G. Criminal Justice Act 2006, s 16. Criminal Justice Act 2007, s 57.

The Rights of the Suspect/Defendant During Investigation and Prosecution 353 the Act relating to the admissibility of the evidence received on foot of the request at any subsequent trial. At time of writing,44 legislation is still to be published relating to the incorporation of the European Evidence Warrant framework decision.

C. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. The Presumption of Innocence The ECHR was incorporated into Irish law by the ECHR Act 2003; section 4 of that Act provides that judges in Irish courts must take ‘judicial notice’ of the Convention and of decisions of the ECtHR. The presumption of innocence is recognised as part of Irish law flowing from article 6 of the Convention. It is also recognised under Irish law as a constitutionally protected right, flowing from the provision in article 38.1 of the Constitution which states that ‘[N]o person shall be tried on any criminal charge save in due course of law.’ While there is no specifically stated right to a presumption of innocence, the Irish courts have consistently recognised it as constitutionally protected as part of the article 38 fair trial provisions.45 As a result of the presumption of innocence the burden of proof rests on the prosecution throughout the trial and the accused is free to remain silent throughout the trial. As will be seen below, there are some restrictions on the right to silence. Regarding the burden of proof, in a number of cases it has been argued that certain legislative provisions involve a shifting of the burden of proof from prosecution to defence, thereby breaching the constitutional right to the presumption of innocence, but the courts have defeated these submissions by drawing a distinction between the legal burden of proof and the evidential burden of proof. The legal burden of proof refers to the obligation of the prosecution to prove all the essential elements of the case. It arises in the criminal trial because of the presumption of innocence. The evidential burden of proof refers to the obligation to adduce a prima facie case—the party need not prove the existence of the fact conclusively, but must produce some evidence that it exists. The evidential burden is on accused in relation to defences (eg self-defence, provocation, duress, mistake). The accused must satisfy the trial judge that there is a prima facie case that defence exists on the facts. If a legislative provision has the effect of shifting the legal burden of proof, then that legislative provision could be found to be unconstitutional, however if the provision shifts merely the evidential burden to the accused, then there is no interference or breach of the presumption of innocence.46 An example of a provision which, it was argued, shifted the legal burden of proof is section 24 of the Offences Against the State Act 1939, which provides that ‘proof of possession of an incriminating document shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the charge’ (emphasis added).

44

November 2011. Examples of leading cases include O’Leary v Attorney General [1991] ILRM 454 (IESC); Rock v Ireland [1998] 2 ILRM 35 (IEHC). 46 See O’Leary v Attorney General [1991] ILRM 454 (IESC) 460. 45

354 Ireland The court considered this provision referred to an evidential burden on the accused, not a legal burden. It was held: if the effect of the statute is that the court must convict an accused should he or she fail to adduce exculpatory evidence then its effect is to shift the legal burden of proof (thus involving a possible breach of the accused’s constitutional rights) whereas if its effect is that notwithstanding its terms the accused may be acquitted even though he calls no evidence because the statute has not discharged the prosecution from establishing the accused’s guilt beyond a reasonable doubt then no constitutional invalidity could arise [emphasis added]. 47

Once a jury has returned a verdict of guilty, the accused no longer enjoys a presumption of innocence; if the decision is appealed (an appeal is taken to the Court of Criminal Appeal, which decides the case on the basis of the trial transcript and hears no witnesses) the appellant will be considered to be guilty unless the Court of Criminal Appeal overturns the conviction. If a retrial is ordered by the Court of Criminal Appeal, then the retrial is held before a trial court with a different jury (though the trial judge could be the same trial judge who presided over the first trial) with the accused once again enjoying the presumption of innocence. 2. Right of the Defence to Undertake Investigative Measures The defence are free to undertake investigative acts in their own right, but legal aid is only available to defence lawyers for court appearances (or consultations in police station). Legal aid is however provided to pay for the expenses of obtaining medical and technical reports necessarily required for use by the defence under the Criminal Justice (Legal Aid) Act 1962. There is no provision in law for defence lawyers gathering evidence through coercive means, such as searching a premises; in theory the police are supposed to search for evidence which may incriminate or exonerate the defendant, and must disclose all evidence in their possession; there is no culture, and no laws in relation to the defence searching for their own evidence, other than interviewing prospective witnesses. 3. Right to Legal Advice It is well established that persons in police custody have a right of access to a solicitor. The right to legal advice only applies to persons in police custody; Irish law makes no provision for rights of legal assistance to persons who are at liberty. So eg, if a search is carried out, whether of a person under stop and search powers, or of a private dwelling on foot of a warrant but the person is at liberty, there is no right to a lawyer while the search is being conducted. Section 4(2)(a) CJA 1984 provides for the detention of suspects in a police station following arrest where the member in charge of the station has reasonable grounds for believing that his or her detention ‘is necessary for the proper investigation of the offence’.48 Section 5 CJA 1984 provides that having authorised the detention, the member in charge must inform the suspect that he is entitled to consult with a solicitor, and that he is entitled to have one other person informed of his detention.49 The obligation under section 5 of 47 48 49

O’Leary v Attorney General [1991] ILRM 454 (IESC) 460. Criminal Justice Act 1984 as amended by Criminal Justice Act 2006, s 9. DPP v Spratt [1995] 2 ILRM 117 (IEHC).

The Rights of the Suspect/Defendant During Investigation and Prosecution

355

the 1984 Act is also contained in article 8 of the Custody Regulations, which obliges the member in charge to give the information about the right to consult a solicitor and to have someone informed about the detention both orally, and by way of a written notice. He must also inform the person that if they do not wish to exercise their rights at that time they will not be precluded from so doing later. However, it was held in DPP v Ivan O’Kelly that there is no requirement that the member in charge must ensure that the person understands the notice of rights: ‘all that is required is that the relevant information is given to the accused, and the relevant notice is handed to him’.50 Given that it is merely a legal right to be informed about the right of access to legal advice as opposed to a constitutional right, failure to inform a suspect of this right does not attract the strict exclusionary rule; it is therefore at the discretion of the trial judge to admit or exclude any evidence obtained at a time when the suspect was without legal advice due to the fact that he had not been informed. Where however a suspect has requested access to a solicitor and access is refused, or circumstances are such that the right of access is thwarted by the actions of the police, then the detention of the suspect becomes illegal during the time in which he is effectively denied access and any evidence obtained during that period must be ruled inadmissible at trial, since it would have been obtained as a result of a conscious and deliberate breach of the suspect’s constitutional rights. The right of access to legal advice for persons in police custody was referred to by the Supreme Court in the case of The Emergency Powers Bill 1976, but the case left unresolved the question of whether the right was a legal right or one which enjoyed constitutional status. The constitutional status of the right was firmly established by the Supreme Court in DPP v Paul Healy, where Finlay CJ held: I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the Courts are obliged to give.51

The extent of the right of access to a lawyer is nonetheless limited. The specific aspect of the right in issue in Healy was the right of a person detained in custody to a solicitor where the person has requested one to attend or where a solicitor has been requested by a third party on the detainee’s behalf. Finlay CJ was careful to point out that the Court was not addressing the issue of the right to be informed of the right of access to a solicitor or ‘any possible right’ of a detained person to have a solicitor present during the police interview, and he left these open for determination in a later case.52 Nor did the Court explicitly address the issue of whether the questioning of a detained person after he has requested a solicitor, but before the solicitor arrives, amounts to a breach of the detainee’s right of access. Healy is therefore authority only for the point that a person who has made a request for a legal adviser (or it has been made on their behalf) has a constitutional right of ‘reasonable’ access. The judgment did not give an exhaustive definition of what constitutes ‘reasonable access’. In so far as it does define the concept, it embraces the right of a person, where a solicitor arrives at the Garda station on foot of a request by persons other that the detainee, to be

50 51 52

DPP v Ivan O’Kelly (IECCA, 1 February 1999). DPP v Paul Healy 1990 2 IR 73, 81. Ibid 78.

356 Ireland immediately told of the solicitor’s arrival, and to be afforded immediate access to the solicitor if the person requests. Postponement of immediate access would only be justified if there were reasons which could be objectively viewed by the court as valid from the point of view of the interest or welfare of the detained person. In People (DPP) v Finnegan the Court of Criminal Appeal underpinned the importance of private access to a solicitor.53 The solicitor in that case was unable to attend in person at the Garda station and instead held a consultation with the appellant by telephone. The Gardaí had remained in the same room at a distance away and had overheard the appellant’s conversation, described by the Court as ‘brief and innocuous’. The Court held that while there is not a constitutional right per se to make a telephone call to a solicitor, once the telephone call is allowed, there is a constitutional right to make the call in private. The law in relation to questioning a person following a request for legal assistance has recently been amended. Prior to the amendment the position was that where a person had requested access to a solicitor, there was no requirement that questioning be suspended until the solicitor arrives. The Gardaí were permitted to continue questioning the suspect, but were precluded from taking a written statement until a reasonable time for the attendance of the solicitor had elapsed.54 The Criminal Justice Act 2011 now prohibits questioning ‘until such time as the person has had an opportunity to consult with a solicitor’ and provides that the period of time between the making of a request for a solicitor and the arrival of the solicitor shall be excluded from the overall reckoning of the permissible detention period, in other words, it has the effect of stopping the clock. The period that may be excluded shall not exceed six hours in the case of a person detained between the hours of midnight and 8 am, or three hours in all other cases. Questioning may proceed before consultation with a solicitor, however, where a delay in questioning would involve the risk of interference or injury to other persons, loss or damage to property, destruction or interference with evidence, the alerting of accomplices or hindering the recovery of property.55 While access to a lawyer is a constitutional right, it is limited to consultations with the lawyer and does not include any right to have the solicitor present during questioning by the police.56 The Criminal Justice Act 2011 has made no change to this position despite effecting the change to questioning of suspects prior to arrival of a solicitor in the police station. The latter reform was considered necessary by the Minister for Justice on the basis that ‘recent jurisprudence of the European Court of Human Rights emphasises the importance of detained persons having, as a rule, access to legal advice in advance of questioning.’57 Clearly, the Irish legislature have interpreted the ECtHR jurisprudence to require consultation with a lawyer in advance of any questioning, rather than the actual physical presence of the lawyer during the police interrogation. While the suspect is being questioned, he therefore has no on the spot assistance from the lawyer, but the suspect could demand to see the lawyer again if needs be. Nonetheless, 53

People (DPP) v Finnegan (IECCA, 15 July 1997). Custody Regulations, art 12(6). 55 Criminal Justice Act 2011, s 9 (inserting a new s 5A into the Criminal Justice Act 1984). 56 Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390 (IESC); see also Barry v Waldron (IECCA, 23 May 1996). 57 See Dail debate Wednesday 18 May 2011 (available on Houses of Oireachtas website). The Minister was presumably referring to the Salduz line of jurisprudence though it is nowhere mentioned in any of the debates. See Salduz v Turkey (2008) 49 EHRR 421. 54

The Rights of the Suspect/Defendant During Investigation and Prosecution

357

the suspect is entitled only to ‘reasonable’ access, so in theory the police would not be breaching the constitutional rights of the suspect if access was refused in a situation where the suspect had already seen the lawyer on one or two occasions and then made repeated requests to consult with the lawyer.

4. Right to Inform a Person About his/her Arrest Section 5 CJA 1984 provides that an arrested person has the right to be informed without delay to have a person ‘reasonably named’ by him/her notified of the arrest and detention. The right is more fully set out in the Custody Regulations.58 The information must be given to the suspect by the member in charge of the station orally and in writing, and the suspect must be informed that the right may be exercised immediately or at a later time if he/she does not wish to avail of the right immediately. The Custody Regulations also provide for supervised visits and communications by telephone or letter with a relative, friend or ‘other person with an interest in his welfare’ at the discretion of the member in charge, which may be refused if the latter considers it cannot be adequately supervised or that it would hinder or delay the investigation.59 The only restriction to the right is that the person to be notified be ‘reasonably named’. There is no clarification as to what this means, it has been suggested that a person suspected of being a ‘criminal associate’ of the person nominated could be deemed by a court not to be a person ‘reasonably named’.60 A further restriction is where a visit is permitted by a person other than a suspect’s lawyer, that visit will be supervised, and the suspect must be warned that anything said during the visit may be given in evidence at trial.61 The member in charge may terminate a telephone call and decline to send a letter where satisfied that it would hinder the investigation. A failure to observe the Regulations does not of itself make any evidence obtained during the detention inadmissible. Nonetheless, if a suspect were to be kept incommunicado, ie without the right to have a relative informed being exercised where no excusing circumstances exist, any statements or confessions could be challenged by the defence at trial as having been made as a result of oppression, thereby making them involuntary and inadmissible in evidence.

5. Right to Ask for a Special Act of Investigation This is not altogether applicable in the Irish system, as any investigation on behalf of the defence is carried out by the defence or by any experts appointed by the defence lawyers. Nonetheless, it is the duty of the prosecution authorities to preserve and retain all evidence which comes into their possession and which is capable of having a bearing on the guilt or

58 59 60 61

Custody Regulations, art 8. Ibid art 11(4) and (5). See D Walsh, Criminal Procedure (Dublin, Thompson Round Hall, 2002) 278. Custody Regulations, art 11(6).

358 Ireland innocence of the accused, and to make this available to the defence where required so they may carry out their own inspections. A number of cases have arisen in recent years where an accused has sought an order of prohibition from the High Court to prevent their trial from proceeding on the basis that evidence was not preserved by the police. In Kearney v DPP 62 it was stated: The obligation to seek out and preserve evidence is not without qualification, however, and is subject to a number of clear caveats. The first of these is that the missing evidence in question must be such as to give rise to a real possibility that, in its absence, the accused will be unable to advance a point material to his defence. The mere disposal of items of evidence, which do not possess any, or any sufficient, nexus with the case that the accused seeks to make, will not amount to a breach of duty by the Gardaí. ... The second reservation, which must be added to the general duty, is that the Gardaí must only do what is reasonably practicable in seeking to identify and preserve pieces of material evidence. The final applicable caveat is that cases such as this one must be determined in light of their own particular circumstances. It is necessary for the court to determine what level of intervention is required to protect due process in light of the specific facts.

6. Right to be Informed that his/her Statements May be used as Evidence At the time of arrest and before any statement is made, the suspect must be informed that anything that they say may be given in evidence at trial. The suspect must be cautioned in accordance with the Judges Rules, rules 2 and 3 of which provide: (2) Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such a person before asking him any questions, or any further questions as the case may be. (3) Persons in custody should not be questioned without the usual caution being first administered.

It would be up to the discretion of the trial judge to rule whether any statements obtained as a result of the failure to caution should be ruled inadmissible.63

7. Right to Require a Precise Wording of his/her Statements; Right to Full and Accurate Recording of the Statement Where a suspect in police custody makes a statement, rule 9 of the Judges Rules requires that the statement be taken down in writing and signed by the suspect. It has been held that this rule refers to statements, and does not require everything that was said in the course of an interview to be noted, such as ‘general conversations’, but anything of consequence should be recorded.64 Article 12(1) of the Custody Regulations requires a record to be made of each interview with the suspects. This is required even where the interviews are electronically recorded. The CJA 1984 (s 27) made provision for regulations to be drawn up to provide for the electronic recording of interviews with suspects in custody, but it was not until 1997 that

62 63 64

Kearney v DPP (IEHC, 15 July 2009). See People v O’Reilly [2009] IECCA 18; The People (DPP) v Breen (IECCA, 13 March 1995) (Egan J). People (DPP) v McKeever [1994] 2 ILRM 186 (IECCA).

The Rights of the Suspect/Defendant During Investigation and Prosecution

359

Regulations were published.65 Even where the interview is recorded electronically, the interview must also be contemporaneously noted in writing. At the start of the interview, the suspect is cautioned, while the tape is running, in the following terms: ‘You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence. As you are aware this interview is being taped and the tape may be used in evidence.’ At the conclusion of the interview the police officer who has conducted the interview must enquire of the person interviewed if there is anything further he or she wishes to say or to clarify, and must read back any notes and memoranda taken in that interview and enquire of the person interviewed if he or she wishes to make any alterations or additions. While a note is taken of the interview, the police are only required to note relevant aspects, so any general conversation would not need to be noted. The tape recording of the interview is not transcribed, but the tape recording itself may be used at the trial where necessary. As originally enacted, the Electronic Recording Regulations provided that a copy of the tape recording was to be given to the suspect or his/her legal representative unless the Superintendent believes, on reasonable grounds, that to do so would prejudice an ongoing investigation or endanger the safety, security and well being of another person. This provision was revoked by section 56 CJA 2007, which now provides that where a person is before a court charged with an offence, a copy of the recording shall be given to the person or their legal representative only if the court so directs and subject to such conditions (if any) as the court may specify. Article 3(3) of the regulations provide that an interview is not required to be electronically recorded where the recording equipment is unavailable due to a functional fault, where the equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available or where the electronic recording of the interview is ‘not practicable’. Section 27(4) CJA 1984 provides that any failure to comply with a provision of the electronic recording of interviews regulations shall not by itself render a person liable to civil or criminal proceedings, and (without prejudice to the power of the court to exclude evidence at its discretion) shall not by itself render inadmissible in evidence anything said during such questioning. Admissibility is therefore at the discretion of the trial judge. The Supreme Court has strongly criticised the failure of the police to record interviews, however, it would appear that the recording of interviews is now regular practice in all Garda stations. The Supreme Court declined to address a submission in one case that the failure to record interviews should result in the statements made during interview inadmissible, preferring to leave the issue to be decided in a case where it was in issue; such a case has not since come before the Court.66

8. The Right to Refer to Documents During Interview There is no general right to refer to documents during interview, however there is a rule in relation to statements of a co-accused. Rule 8 of the Judges Rules requires that where two or

65 66

Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (SI 74/1997). Rattigan v DPP [2008] IESC 34.

360 Ireland more persons are charged with the same offence and have made statements separately, each accused should be shown a copy of the other’s statement and nothing should be done by the Gardaí to invite a reply; if the suspect wishes to make a statement in response, a caution should first be administered. Even though the words ‘are charged’ are used in the rule, the courts have applied the rule to questioning of suspects before being charged.67 Other than being given sight of the statement of a co-accused, neither the suspect nor the defence lawyer are entitled to any information before, during or after police interviews. No access to any documents will be given until the book of evidence is served.68

9. The Right to be Informed About the Place of Detention Article 10 of the Custody Regulations provides that information as to the station where an arrested person is in custody shall be given: (a) if the arrested person consents, in response to an enquiry by a solicitor whose presence has not been requested by him; (b) if the arrested person consents and the member in charge is satisfied that giving the information will not hinder or delay the investigation of crime, in response to an enquiry by any other person. The suspect must be informed about this right upon arrival at the Garda station. If the member in charge of the Garda station considers it will hinder the investigation, he/she may refuse the information upon enquiry by persons other than a lawyer.

10. The Right to be Informed About the Charges Article 15 of the Custody Regulations provide that where a person in custody is charged with an offence, a copy of the charge sheet containing particulars of the offence shall be given to him as soon as practicable. Where the person charged is under the age of 17, a copy of the charge sheet shall also be given to the person’s parent or guardian or (where the person is married to an adult) to the spouse if present when the person is charged or, if not present, shall be forwarded as soon as practicable.

11. Access to the File During Pre-Trial Proceedings No access to the police investigation file (ie transcripts of interviews with witnesses, interviews with the accused, technical reports, forensics etc) is given to the suspect and his/her legal advisers before what is known as ‘the book of evidence’ is served to them. Because of the constitutional rights to a trial in due course of law and to fair procedures found in articles 38.1 and 40.3 of the Constitution of Ireland, there is a duty on the prosecution to disclose to the defence all ‘relevant evidence’69 which is within its possession. In 67 68 69

Examples include People (DPP) v Palmer (IECCA, 22 March 2002). Lavery v Member in Charge Carrickmacross Garda Station [1999] 2 IR 390 (IESC). People (DPP) v Tuite 2 Frewen 175 (IECCA).

The Rights of the Suspect/Defendant During Investigation and Prosecution

361

Director of Public Prosecutions v Special Criminal Court, relevant material was defined as evidence which ‘might help the defence case, help to disparage the prosecution case or give a lead to other evidence’.70 A person charged with a criminal offence has a right to be furnished, firstly, with details of the prosecution evidence that is to be used at the trial, and secondly, with evidence in the prosecution’s possession which the prosecution does not intend to use if that evidence could be relevant or could assist the defence. Under sections 4B and 4C of the Criminal Procedure Act 1967 (as amended) the prosecution is obliged to provide the accused with details of the evidence to be adduced against him. These include: (i) a statement of the charges against the accused; (ii) a copy of any sworn information in writing upon which the proceedings were initiated; (iii) a list of the witnesses the prosecutor proposes to call at the trial; (iv) a statement of the evidence that is expected to be given by each of them; (v) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992 (documentary evidence); (vi) a list of the exhibits (if any). These documents are usually collectively described as the ‘book of evidence’. Pursuant to section 4D of the Criminal Procedure Act 1967, the accused has the right to inspect all exhibits. The book of evidence is provided both to the accused and to his lawyer. It is not however provided to any victim of the offence. The victim has no role or special status in criminal investigation and trial in Ireland, but is treated as any other witness and is not represented at trial. As soon as the documents listed above have been served on the accused, a copy of the documents must be given by the prosecutor to the District Court. After serving the book of evidence on the accused, where the prosecution proposes to call any further witnesses or further evidence, a list of these witnesses and statements of evidence they propose to give, and details of any further evidence must be given to the accused and a copy of same given to the trial court (section 4C Criminal Procedure Act 1967 (as amended). Non-disclosure of evidence may result in a conviction being quashed. The issue has arisen as to whether production of documents could be withheld on the basis of informer’s privilege. The Supreme Court has held that while the prosecution has a duty to disclose all relevant material to the defence, he must also accommodate both informer privilege and the ‘innocence at stake’ exception; in case of doubt, a ruling may be sought from the court as to whether the documents may be withheld on the basis of informer privilege.71 Where the accused is sent forward for trial, the prosecution has 42 days from the first appearance of the accused before the District Court within which to serve upon the accused the book of evidence.72 The period of 42 days may be extended by the District Court on an application made by the prosecution within that time and may be further extended; 70 Director of Public Prosecutions v Special Criminal Court [1999] 1 IR 60 (IESC) 76; see also McKevitt v DPP (IESC, 18 March 2003), reiterating the constitutional duty of prosecution to disclose evidence. 71 DPP v Special Criminal Court [1999] 1 IR 60 (IESC). 72 Criminal Procedure Act 1967 as amended by the Criminal Justice Act 1999.

362 Ireland there is no limit fixed as to the number of such extensions. The court may only extend the period if it is satisfied both that there is good reason for the extension and that it would be in the interests of justice to do so. At any time after service of the initial book of evidence, the prosecution may serve a supplemental book of evidence, including a list of additional witnesses and statement of their evidence, as well as a statement of any further evidence of witnesses contained in the initial book. Either prosecutor or accused may, at any time after the latter has been sent forward for trial, apply to the trial court for an order requiring a person to appear before the District Court to give evidence either on sworn deposition or through a live television link. The trial court may grant the order ‘if satisfied that it would be in the interests of justice to do so’. While the prosecution is under obligation to disclose the evidence to the defence, consistent with the presumption of innocence and the consequent placement of the burden of proof on the prosecution, an accused has no obligation to furnish any details of his/her defence subject to two exceptions, one in relation to expert witnesses, the other relating to alibi evidence. Section 34 of the Criminal Procedure Act 2010 provides: (1) An accused shall not call an expert witness or adduce expert evidence unless leave to do so has been granted under this section. (2) Where the defence intends to call an expert witness or adduce expert evidence, whether or not in response to such evidence presented by the prosecution, notice of the intention shall be given to the prosecution at least 10 days prior to the scheduled date of the start of the trial. The trial judge may at his/her discretion allow the evidence to be adduced at trial where no notice has been given if it would not, in all the circumstances of the case, have been reasonably possible for the defence to have done so, or where the prosecution has adduced expert evidence, a matter arose from that expert’s testimony that was not reasonably possible for the defence to have anticipated and it would be in the interests of justice for that matter to be further examined in order to establish its relevance to the case (s 34(5)). If the accused intends to provide evidence of alibi, written notice must be given to the prosecution within 14 days after being served with the book of evidence.73

12. The Right to Assistance for the Suspect During the Pre-Trial Procedure (a) Right to an Interpreter There is currently no specific statutory right to an interpreter under Irish law, however Ireland has opted into the Directive on the right to interpretation and translation, which must be transposed into national law by October 2013.74 As the law currently stands, a person who does not speak the English language will be provided with an interpreter during pre-trial and trial stages of the process. This flows from the constitutional right to a fair

73 74

Criminal Justice Act 1984, s 20. [2010] OJ L280/1.

The Rights of the Suspect/Defendant During Investigation and Prosecution

363

trial under article 38.1 of the Constitution and from Articles 5 and 6 of the ECHR. An Irish pre-Constitution decision, in relation to a defendant whose only language was Irish, held: It would seem to me to be a requisite of natural justice, particularly in a criminal trial, that a witness should be allowed to give evidence in the language which is his or her vernacular language, whether that language be Irish or English, or any foreign language; and it would follow, if the language used should not be a language known to the members of the court, that means of interpreting the language to the Court (judge and jury), and also, in the case of evidence against a prisoner, that means of interpreting it to the prisoner, should be provided.75

In relation to persons in police custody, regulation 14 of the Custody Regulations76 makes provision for a person who is a foreign national to receive consular assistance, but makes no reference to assistance from an interpreter. In practice a person in police custody will be informed of the reasons for arrest in a language they understand by way of assistance from an interpreter, and the notice of rights which must be handed to any person detained in a police station is available in a number of translated versions (form C 76). Where a person is brought before the court to have an extension in police custody extended, or for the purposes of formally charging the suspect, or for a bail application an interpreter will be provided by the court. If any issue arises about the effectiveness of an interpreter, eg that interpretation was inaccurate, that is a matter which will be dealt with at trial rather than at pre-trial stage.77 (b) The Right to a Defence Lawyer Article 38, section 1, of the Constitution of Ireland, 1937 provides that: No person shall be tried on any criminal charge save in due course of law.

Due course of law would encompass that the accused will have the right to be represented by a defence lawyer. Suspects detained in police custody may waive their right to a legal adviser. At trial, accused persons may waive their right to defence counsel and conduct their own defence. (This would be rare in practice.) If they do so, the trial judge must be satisfied that they do so ‘intelligently and understandingly’.78 Section 2 of the Criminal Justice (Legal Aid) Act 1962 states that, if it appears to the District Court that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and that, by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence, the court shall ‘on application being made to it in that behalf ’ grant him a certificate enabling him to obtain free legal aid and to have a solicitor assigned to him for that purpose.

75 Attorney General v Joyce and Walsh [1929] IR 526 (IESC) 531. See further D Riordan, ‘Immigrants in the Criminal Courts’ [2007] JSIL 95; I Bacik, ‘Breaking the Language Barrier’ [2007] JSIJ 109. 76 Criminal Justice Act 1984 (Treatment of Persons in Garda Siochána Stations) Regulations 1987 (SI 119/1987). 77 On the issue of who may be acceptable as an interpreter, see DPP v Yu Jie [2005] (IECCA) 95 (the applicant had been questioned by the police through an interpreter who was a Chinese police officer seconded to Interpol. The court was satisfied that the use of the interpreter was unobjectionable in the circumstances, despite also finding that there were some omissions in the translations); on the issue of simultaneous translation at trial, see MacCarthaigh v Minister for Justice, Equality and Law Reform [2002] 6 ICLMD 70 (IEHC). 78 State (Healy) v Donoghue [1976] IR 325 (IESC).

364 Ireland It was held in State (Healy) v Donoghue that: (1) the provisions of article 38 of the Constitution, in requiring a criminal trial to be conducted in due course of law, import the requirement of fair procedures which furnish an accused with an adequate opportunity to defend himself against the charge made. (2) That where an accused faces a serious charge and, by reason of lack of education, requires the assistance of a qualified lawyer in the preparation and conduct of a defence to the charge then, if the accused is unable to pay for that assistance, the administration of justice requires (a) that the accused should be afforded the opportunity of obtaining such assistance at the expense of the State in accordance with the Act of 1962 even though the accused has not applied for it and (b) that the trial of the accused should not proceed against his will without such assistance if an appropriate certificate under section 2 of the Act of 1962 has been granted in relation to the trial of the accused.79 The suspect while in police custody may request a named lawyer or he may accept one suggested by the police; once the suspect has been charged s/he may seek a named lawyer to represent him/her, but if that lawyer is unavailable, the court will select a lawyer from a list maintained by the court containing names of lawyers participating on the Free Legal Aid Scheme. An accused person is entitled to be informed by the court in which he/she is appearing of his/her possible right to legal aid. The grant of legal aid entitles the applicant to the services of a solicitor and, in certain circumstances, up to two counsel, in the preparation and conduct of his/her defence or appeal. An applicant for legal aid must establish to the satisfaction of the court that his/her means are insufficient to enable him/her to pay for legal aid him/herself. It is thus a discretionary decision of the court. In exercising this discretion, the court must also be satisfied that by reason of the ‘gravity of the charge’ or ‘exceptional circumstances’ it is essential in the interests of justice that the applicant should have legal aid. However, where the charge is one of murder, or where an appeal is one from the Court of Criminal Appeal to the Supreme Court, free legal aid is granted merely on the grounds of insufficient means, the gravity of the charge being self-evident.

13. The Right to Silence During the Pre-Trial Procedure The right to silence is constitutional right.80 The Judges Rules (rules 2 to 6) require that suspects be cautioned about their right to silence before questioning and before making any statements. The terms of the caution are set out in the Judges Rules; these rules are not rules of law, but were formulated in 1912 by the English High Court judges for the guidance of police officers on interrogation practices. The Rules were adopted in Ireland in People v Cummins.81 Rule 3 provides that: [P]ersons in custody should not be questioned without the usual caution being first administered.

The actual terms of the caution are set out in rule 5: ‘You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.’ 79 80 81

Ibid. Heaney v Ireland [1997] 1 ILRM 35 (IESC); Rock v Ireland & AG [1997] IR 484 (IESC). People v Cummins [1972] IR 312 (IECCA).

The Rights of the Suspect/Defendant During Investigation and Prosecution

365

Failure to inform the suspect of their right to silence in accordance with the Judges Rules does not require that any statements taken before a caution was given to the suspect be ruled inadmissible, but the trial judge may rule the statement to be inadmissible at his/her discretion. The CJA 2007 section 32 provides that Regulations may be made for the administration of cautions by members of the police to suspects, but to date no Regulations have been published. The section also provides that failure to observe the Regulations shall not affect the admissibility in evidence of anything said by or of the silence of the suspect.

14. Restrictions on the Right to Silence The right to silence is not an absolute right, and encroachments may be made by legislation provided they are proportionate to the aims they set out to achieve. The CJA 2007 provides that inferences may be drawn from the failure of accused to mention particular facts when questioned by the police.82 The section provides that in any proceedings evidence is given that, either during questioning before being charged or upon being charged or informed that he/she might be prosecuted for the offence, the person: [F]ailed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.

No inferences may be drawn unless the accused was told in ordinary language what the effect of the failure to mention a fact might be; the accused was afforded a reasonable opportunity to consult a solicitor before the failure occurred, and in relation to the questioning of a person by a member of the Garda Síochána, unless the questioning was recorded by electronic or similar means or the person consented in writing to it not being so recorded. Sections 15 and 16 CJA 1984 make it an offence for a person to refuse to account for firearms and ammunition or property found in his or her possession. The aim of these sections is principally to discover the source of supply and, while the suspect is obliged to give this information to the police, such information cannot be used against him in any subsequent proceedings. Section 18 of the 1984 Act relates to inferences which may be drawn where a person refuses to account for objects, marks, or substances in their possession or on their person, while section 19 refers to failure to account for one’s presence at a place at or about the time when a crime had been committed, and in either case ‘the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation’.

82

S 30 of the Act inserts a new section (s 19A) into the Criminal Justice Act 1984.

366 Ireland In both instances, the court or jury: [M]ay draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any other evidence in relation to which the failure is material, but a person shall not be convicted of an offence solely on an inference drawn from such failure or refusal.

Neither section will have effect unless the accused was told in ordinary language when being questioned, charged or informed, what the effect of the failure or refusal to account for a matter might be; the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred, and questioning was recorded by electronic or similar means or the person consented in writing to it not being so recorded.83 Under section 30 of the Offences Against the State Acts 1939-98, the police may demand the suspect’s name and address. If the suspect refuses, or gives a false name and address, it is an offence punishable by up to six months’ imprisonment; there is no provision for a fine as an alternative. Section 52 of the Act empowers the police to demand of the suspect a full account of his movements and any information which the suspect may have relating to the commission by another person of an offence under the Act or a scheduled offence. Failure to do so amounts to an offence punishable by six months’ imprisonment. Under section 2 of the Offences Against the State (Amendment) Act 1972 the police may demand of any person found near a place where an offence has been committed, which the police believe to be a scheduled offence, the name and address of that person together with an account of his or her movements. Failure to do so is an offence punishable by up to 12 months’ imprisonment, or a fine of up to £200, or both.

15. Rights of Legal Persons in Criminal Proceedings In Irish law a corporate entity can be criminally liable. Nonetheless, the law, especially in relation to criminal procedure, is somewhat vague in this area. While corporate liability was more generally confined to offences requiring no proof of mens rea, in other words, strict liability offences, recent legislation provides for corporate liability for crimes which do require proof of a mental element in order to obtain a conviction. For example, section 58 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides: Where— (a) an offence under this Act has been committed by a body corporate, and (b) the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either— (i) a director, manager, secretary or other officer of the body corporate, or (ii) a person purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

Similar wording is used in section 9 of the Prevention of Corruption (Amendment) Act 2001.

83

Criminal Justice Act 2007 as amended by ss 28 and 29.

The Rights of the Suspect/Defendant During Investigation and Prosecution

367

It has been noted by the Law Reform Commission that ‘[t]he law has long recognised that a corporation is a separate and distinct legal person from the individuals associated with it, but the law also recognises that a corporation is incapable of doing anything without the intervention of natural persons’.84 The Supreme Court has adopted the ‘identification doctrine’ in relation to civil liability of corporate entities.85 According to this doctrine it is necessary ‘to identify the person who had management and control in relation to the act or omission in point’. There has been no decision in relation to whether the doctrine extends to criminal liability. A corporate entity may invoke the constitutional procedural guarantees of fair procedures, due process, and access to the courts.86 However the privilege against self-incrimination may not be invoked by any person, whether legal or natural, in an investigation under the Companies Acts. Section 10 of the Companies Act 1990 requires all persons to produce all books and documents relating to the company and to provide any assistance, including answering any questions posed by inspectors empowered to investigate under the Act. However it has been held that no answers may be used as evidence in subsequent criminal proceedings against persons which may incriminate them. Given that they have been compelled to answer, the answers would be thus equivalent to an involuntary confession.87 The question as to whether corporations, as legal persons, can invoke the privilege against self-incrimination has not been settled in Irish law but the Law Reform Commission suggest, since Ireland must take judicial notice of the decisions of the ECtHR and of the Convention, that following the decision of Dombo Beheer BV v The Netherlands 88 a corporation in Ireland would also be able to avail itself of the privilege.89

84 85 86 87 88 89

Law Reform Commission Consultation Paper on Corporate Killing (LRC CP 26—Dublin 2003) 15. Superwood Holdings Plc v Sun Alliance Assurance Plc [1995] 3 IR 303 (IESC). Law Reform Commission Consultation Paper on Corporate Killing (LRC CP 26—Dublin 2003) 42. Re National Irish Bank [1991] ILRM 321 (IESC). App no 14448/88 (ECtHR, 27 October 1993). LRC CP 26 2003, 56.

10 Italy FRANCESCA RUGGIERI AND STEFANO MARCOLINI1

A. GENERAL ASPECT OF PRE-TRIAL INVESTIGATION

I

N ITALY, A country belonging to the civil law tradition, a statutory basis is necessary for procedural rules. In 1999 Article 111, para 1 of the Italian Constitution was amended and now states that jurisdiction is carried out through the fair trial rule of law (la giurisdizione si attua mediante il giusto processo regolato dalla legge). However, even before that innovation, there was no doubt about the necessity of governing criminal (and even civil) procedure by statutory law. The Code of Criminal Procedure (CCP) belongs to the area of public law; the current Code2 entered into force on 24 October 1989, and has been heavily amended by a variety of statutes during the more than 20 years of its operation. The first stage of Italian criminal process (as in many other states) is the phase of investigation, ie the ‘pre-trial’ phase. Investigation begins when there is a notitia criminis (‘notification of a crime’: CCP, Article 330f). This phase ends with the decision of the Public Prosecutor to prosecute (esercitare l’azione penale: CCP, Article 405) or to drop the proceeding (CCP, Article 408). In order to arrive at the decision to prosecute or not, the Public Prosecutor has to investigate all the issues both for and against the defendant. With a decision to prosecute there begins the phase in which the principle of publicity of the hearings and the principle of ‘orality’ (which means that evidence against the defendant must be presented by live witnesses in court, subject to cross-examination) are recognised at the highest level, and at the end of which the judge must decide whether the defendant is guilty or not.3

1 This chapter is the result of a mutual exchange of ideas between the two authors; nevertheless, Francesca Ruggieri is the principal author of sections A1 to B8, Stefano Marcolini of sections B9 to E4. The work represents the law as at October 2011. 2 The code incudes also rules as to putting into effect (norme di attuazione, di coordinamento e transitorie, eCCP). 3 There may also be an intermediate stage between the investigation and the public trial: after the indictment by the Public Prosecutor, but before the public trial, a different judge (the ‘judge of the preliminary hearing’) must verify in a preliminary hearing (udienza preliminare, CCP, Art 416 ff) that the request has a real factual basis, ie that the indictment is well grounded on the results of the investigations and, consequently, that there is a likelihood that the defendant will be convicted at the end of the public trial. If so, the judge appoints a day for the trial (CCP, Art 429); if not, he/she must acquit the defendant of the charge (CCP, Art 425). See below, section C3.

General Aspect of Pre-Trial Investigation 369 1. Body Carrying out Investigation, Prosecution and Judicial Review The 1989 Code of Criminal Procedure rejected the idea of the ‘investigative judge’ (giudice istruttore), hitherto a part of the Italian criminal justice system and a legacy of the French juge d’instruction. Today only the Public Prosecutor, the Police and the ‘judge of freedom’ (giudice per le indagini preliminari) are involved in the pre-trial stage: the last of whom has no investigative powers but the role of guaranteeing fundamental rights of freedom, privacy, property, etc during the pre-trial phase. Theoretically, the division of roles requires the Public Prosecutor to prosecute4 and the police to investigate. However, often the Public Prosecutor investigates as well. The Public Prosecutor belongs to the judicial system (magistratura): ie to the unitary body of judges and Public Prosecutors whose independence is guaranteed by a constitutional body, the Consiglio Superiore della Magistratura. This structure is recognised and regulated by the Constitution (Articles 104–106). Police officers who carry out criminal investigations come usually from one of the three specialist and general police agencies in Italy: the Carabinieri, Guardia di Finanza and Polizia di Stato.5 2. Absence of a Specialised Procedure for Financial Criminal Investigation There are no special rules for financial criminal investigations, but there are specific rules for financial non-criminal investigations. Financial violations are normally established under administrative law and repressed by the Ministry of Finance through its central and peripheral organs, the so-called Agenzia delle entrate (the Revenue Agency).6 The financial authorities do not need judicial authorisation to carry out their investigation activities. These authorities can obtain information about bank transfers of a person over the last five years. In the event that the suspected tax evasion exceeds certain thresholds, the administrative violation becomes a criminal violation. These threshold amounts are set out, in detail, for every kind of tax, in Legislative Decree (Decreto Legislativo) number 74 of 10 March 2000. Some law enforcement agencies, such as Guardia di Finanza—the body of police skilled in the investigation of tax evasion7—are experts in financial investigation. For this reason, the Public Prosecutor very often uses these agencies in his/her criminal investigations: for example, to analyse accounts in a criminal bankruptcy or in a crime of bribery or money-laundering. In addition, the Guardia di Finanza can cooperate with banks and swiftly obtain information about transactions and operations, by cash or otherwise.8

4 Generally, you can assume that in Italy the Public Prosecutor is the only person entrusted of the prosecution: ie the charge or indictment (azione penale). The Italian Constitutional Court has ruled, however, that this monopoly is not absolute, with respect to a peculiar ‘popular action’ in force in the electoral legislation. 5 There are also some yet more specialist units within the Polizia di Stato, Carabinieri and Guardia di Finanza, such as: GIS, or Gruppo di Intervento Speciale¸ Special Intervention Group; RIS, or Reparti Investigazioni scientifiche, Scientific Investigation Division; NOCS, or Nucleo Operativo Centrale di Sicurezza, Central Operation Security Squad; GICO, or Gruppo di Investigazione sulla Criminalità Organizzata, Group on Organised Crime. The DIA, or Direzione Investigativa Antimafia, Antimafia Investigative Direction, must also be mentioned. 6 See, eg, Decree No 633 of 26 October 1972, on VAT. 7 On Guardia di Finanza, see also above, section A1. 8 See again Decree No 633 of 1972.

370 Italy Undercover operations may also be carried out for financial crimes, such as money laundering. And when financial crimes are ascribed to a criminal association, wiretapping is easier than in a normal criminal proceeding, because a milder ground is allowed by a special law,9 and the operations can last 40 days (extendable by a judge). As noted above, a fiscal violation is normally not a criminal violation, but it turns into a criminal offence only if the evasion exceeds certain amounts prescribed by law. This requires a coordination rule. Whenever the administrative authorities, during their financial noncriminal investigations, are alerted to a crime, due to the amount of the suspected tax evasion, the administrative proceeding turns into a criminal proceeding. From that moment on, evidence must be collected according to the CCP and the person of interest becomes a person being investigated and he/she must be granted of all the rights belonging to this new status.10 This means that, for example, the Guardia di Finanza normally acts in the field of financial investigations as a Law enforcement agency; but when, during these financial investigations, a crime is discovered, a criminal proceeding must immediately start, with all the guarantees of due process. Thus, every time an administrative proceeding for a financial violation turns into a criminal proceeding, all the following rules concerning the rights of the accused, due process, the law of evidence, etc (practically, the whole CCP), will be applicable. 3. Legal Entities The process against legal persons, for their liability related to criminal offences, is contained in the Decreto Legislativo of 8 June 2001, No 231, which basically shaped the process to legal entities much like that in the Code of Criminal Procedure, plus some special issues (the Decree has 85 articles). Actually, during the proceeding the legal entity is considered like a person being investigated, or a defendant: Article 35 of the mentioned Legislative Decree says so. Thus, the following rules, concerning the rights of the person accused, the law of evidence and, generally, the criminal investigations, are valid, with some logical adjustments, for the legal entities also.

B. INVESTIGATION MEASURES

1. Interrogation of Witness at the Investigation Stage (Including Complainants/Injured Party) It is possible to interrogate witnesses in the investigation stage from the moment the notification of a crime is recorded (CCP, Article 335). This measure can be applied for every criminal offence, whether petty or serious.

9 Art 13 of Law Decree No 152 of 13 of May 1991, converted into Law No 203 of 12 July 1991, requires only sufficient evidence (sufficienti indizi), while in a normal criminal proceeding Art 266 CCP requires a more severe ground (see below, Section 4.b). 10 Art 220 eCCP.

Investigation Measures 371 Anybody can be a witness. He/she has a duty: (i) to appear to the Public Prosecutor (or to the police); (ii) to tell the truth. Concerning (i), the duty to appear is excepted only for persons who hold very high offices of state (for example, the President of the Republic). Normally, should a witness fail to appear, without justification, the Public Prosecutor can issue a summons (executed by the police). Concerning (ii), a witness may refuse to give evidence only if to do so would be to incriminate him/herself (privilege against self-incrimination; CCP, Article 63). There are some other exceptions to the duty to answer, in order to guarantee other fundamental rights, equal to or more important than the jurisdiction. To guarantee the right to defence, lawyers can abstain from providing evidence gained as a result of their confidential relationship with a client. The same dispensation is given to doctors and to the health experts, to ministers of religion (for the seal of the confessional) and to other professions (for example psychologists or pharmacists) due to the client confidentiality they must respect: CCP, Article 200f. To respect the deepest—and frequently problematic—feelings and relationships within a family, relatives of a person being investigated cannot be forced to bear witness (unless they have made the complaint against their relatives). Obviously, if they nevertheless decide to provide evidence, they must say the truth (CCP, Article 199). To guarantee press freedom, on the other hand, journalists cannot be forced to disclose the name of their source; if this name is vital for the jurisdiction, however, the judge can order the journalist to testify (CCP, Article 200, para 3). Finally, to guarantee the supreme national interests, no one can give evidence about something which is a state secret. The state secret has to be confirmed by the Government. No one can be arrested if he/she refuses to testify: in this case, however, there may be a preliminary investigation for the crime of false witness (CCP, Article 476, para 2). The same happens if someone lies or deny the truth. The police or Public Prosecutor question witnesses; even the defence lawyer can question witnesses, during his/her investigation.11 The defence lawyer is given notice of the interrogation of a witness only if it is necessary that the examination of the witness be conducted exceptionally by the giudice per le indagini preliminari during a closed hearing, because the witness is in peril of life, or is under threat (incidente probatorio: CCP, Article 392f).

2. Search and Seizure Search and seizure are often the first measures adopted in a criminal investigation. They are acts of enforcement that involve fundamental rights (for example, to property). For this reason, they can only be carried out in the full respect of some determinate rules.

11 The interpreter or the translator are designated every time a person being investigated or prosecuted, or other party to the proceedings, or a witness needs to declare something or needs to understand something and they don’t speak Italian (CCP, Art 143).

372 Italy These measures can be applied for any criminal investigation, both for petty and serious offences. For body searches and searches of premises, it is necessary for there to be a reasonable ground to find, respectively hidden on a person or stored in a place, a body of evidence or other things relating to the crime. A place can also be searched, if there is a grounded base that there you may find the person, being investigated, to arrest.12 Similarly, it is permissible to search a computer system or part of it and computer data stored therein when it is reasonable to assume that the computer contains data relevant to an investigation.13 A search can be initiated either by a judge or the Public Prosecutor (autorità giudiziaria).14 For the police, it is more correct to speak of an emergency procedure: when there is urgency (CCP, Article 352 in cases of urgency), the police can search, but the post factum validation of the Public Prosecutor is required within 96 hours. There are two types of seizure.15 A judge or the Public Prosecutor can order seizure of a body of evidence but, normally, it is the police who are present first at a crime scene and seizure what is relevant (CCP, Articles 354 and 355). When there is urgency (Article 354 in the case of urgency), the police can seize the body of evidence, but the post factum validation of the Public Prosecutor is required within 96 hours (CCP, Article 253). According to the law, ‘body of evidence’ is anything that has been used to commit a crime or is the result (proceeds or profit) of a crime (CCP, Article 253). To avoid the commission of a new crime or to avoid consequences of the first crime, the giudice per le indagini preliminari during the pre-trial investigation can order a preventive seizure (CCP, Article 321); the Public Prosecutor (and police) can exceptionally order this, when it is urgent, but they must immediately (within 48 hours) ask for validation by the judge. There is a second kind of preventive seizure, which can be ordered to ensure future confiscation (CCP, Article 321, para 2). Some restrictions must be taken into account. It is possible to search a law firm only if the lawyer or ‘other persons regularly working in the same firm’ (altre persone che svolgono stabilmente attività nello stesso ufficio) are being investigated, or to uncover a specific body of evidence. Only a judge (or, during pre-trial investigation, the Public Prosecutor with the authorisation of a judge) can personally search and order seizure in a law firm (CCP, Article 103). A body search must respect the dignity and decency of the involved person (CCP, Article 249); searches of premises cannot be carried out in the night (between 8 pm and 7 am), save with the authorisation of the Public Prosecutor or of a judge (CCP, Article 251). It is forbidden to order seizure of a law firm’s records of defence, excepting those which are a body of evidence.

12

CCP, Art 247. CCP, Art 247, para 1-bis, according to Art 19 of Convention on Cybercrime, Budapest, 23 November 2001. 14 Autorità giudiziaria is an old term contained in the Italian Constitution: it means both Public Prosecutor and judge. But today the Constitution too is read as if it mentioned only the ‘judge’. 15 Provisions on freezing orders (a measure similar to seizure) don’t belong to the penal system. Decreto Legislativo No 109 of 2007 sets out the measures of freezing, within the powers of government (Department of Treasury and Foreign Office), implementing the international Convention against international terrorism. The above-mentioned Legislative Decree rules the measures, according to the international Convention, only in the area of international terrorism. The ‘Agency of State Property’ (Agenzia del Demanio) is entitled to execute the measure. 13

Investigation Measures 373 For Members of Parliament it is necessary to first obtain a ‘leave to prosecute’ (autorizzazione a procedere): ie to obtain the authorisation of the Parliament to investigate. Since every single procedural act of the police, of the Public Prosecutor or even of judges has to be recorded or documented, the orders disposing a search or a seizure, of the Public Prosecutor or of the judge, will be written, and there will be always a ‘report’ (verbale) containing a description of the activity of the police. As ‘surprise’ measures (atti a sorpresa), neither search nor seizure can be notified before their execution. But the defence lawyer has the right to be noticed as soon as the execution of the measure begins, and to be present. A night-time search of premises (between 8 pm and 7 am) is possible in a case of urgency, in execution of a written order of the Public Prosecutor during the pre-trial investigations, or of the judge after the azione penale (CCP, Article 251, para 2). It is forbidden to carry out the measure in a clandestine way. The criminal code punishes arbitrary search and inspection (perquisizione e ispezione arbitraria, CC, Article 609). The defence lawyer must be informed as soon as the execution of the measure begins. He/she can be present, but the operating authority has no obligation to wait for him.16 The legal system provides for judicial review, ie a riesame (CCP, Article 322) or, in some other cases, appello (CCP, Article 322-bis), which is addressed to and decided by the Court of Freedom. The decision of the Court of Freedom can in turn be reviewed by the Italian Supreme Court. Every person who has a specific interest, even if he/she is not being investigated (for example: the owner of a seized firm) can appeal to the Court of Freedom and then, if he/she is not satisfied, to the Supreme Court. (a) Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) There are some institutions and entities, against which search and seizure are not immediately disposed. The code prefers a ‘soft approach’, which consists, first, in a production order and only if this order remains unrealised, in a subsequent measure of search. The rules applicable on production orders are contained in the CCP, Article 256, concerning the duty of professionals—who have the privilege seen above17—and the public authorities and administrators to deliver to the Public Prosecutor (or judge, after the azione penale) what he/she is looking for, because it is relevant for the investigation. There is no need for a degree of suspicion in order to apply the measure. A notitia criminis is enough. The measure is applicable for all type of offences. CCP, Article 256 provides a possible restriction if the documentation or data required concerns an office, a professional or a state secret (as seen above for interrogation of witnesses).18

16 As already mentioned, the interpreter or the translator are designated every time the person being investigated or prosecuted, or another party of the proceeding, or a witness, needs to declare something or needs to understand something and they don’t speak Italian (CCP, Art 143). In case of search and seizure, as unaware measures, no interpreter must be provided, but after the execution of the measure, if the person concerned doesn’t speak Italian, he/she can apply for an interpreter/translator. 17 CCP, Art 200. 18 See section B.1.

374 Italy In this case, the addressee of the production order must send a written declaration, setting out the reasons for the secret: CCP, Article 256, para 1. Whenever the addressee of the production order declares he/she cannot produce the documentation or the data, due to the existence of a secret, the Public Prosecutor before the indictment or azione penale, or the judge after the indictment, can order an investigation to confirm the existence or otherwise of the secret: CCP, Article 256, para 2. If there is no office or professional secret, the investigative authorities may seize the data or documents. This measure imposes a duty to cooperate with investigative authorities. People mentioned above have to collaborate with justice and to deliver the documents or data requested for investigative reasons. It has to be remembered that CCP, Article 391-quater disposes the possibility for the defence to obtain documents from public administration and offices. Persons, addressees of the order or of the request, execute this measure spontaneously. If there is no spontaneous execution, the Public Prosecutor or judge verifies the existence of the secret and, if transpires not to exist, disposes the seizure of the documents or of the data: see again CCP, Article 256, para 2. In Italy, every single procedural act of the Public Prosecutor or of the judge must be recorded or documented. The order of the Public Prosecutor or of the judge is written and briefly reasoned, and must be notified to the addressee: without notification, he/she cannot know what the authority needs and cannot answer, giving the documents or the data requested, or declare the existence of a secret. Defence is not involved, and no judicial review is possible. (b) On-line Search of Computers It is necessary to define on-line search of computers, since on-line search or on-line surveillance of a computer is a complex procedure and it is necessary for there to be precision in the definition. Unfortunately, since in Italy there is no legislation concerning these two measures, the definition is unofficial and comes only from academic reflexion. With this warning, we can define on-line search (or one-time copy) as the copy, full or partial, of the memory of a computer system; on-line surveillance as the detection and recording of which websites are visited by a system or by an account relating to that system. Both of them are carried out through a ‘Trojan’ or a ‘Sniffer’, without the person concerned being aware: if person is aware, the measure becomes in fact a sort of search. Whenever this measure allows interception of the contents of telecommunications (content data) between two or more persons, pertinent rules are applicable. But there is space for on-line search and on-line surveillance with no interception of communications. Today’s technology allows such measures, which, incidentally, have been under observation by the German Constitutional Court.19 Since in Italy, as said before, there is a lack of legislation on the topic, only academic authors considered this new technological measure, concluding that, in the Italian system, due to the total absence of a complete legislative structure, such a measure infringes the principle of the supremacy of the rule of law and

19

See decision of 27 February 2008.

Investigation Measures 375 cannot be disposed.20 As long as this gap of legislation persists, such a measure should not be admitted as evidence. But, as noted, this is only a doctrinal opinion. It seems that jurisprudence is inclined to admit the on-line search of computers as evidence. This can be deduced, for example, from some newspaper sources, concerning a resounding proceeding against Mr Luigi Bisignani and other persons, who were accused of being members of an illegal association called ‘P-4’. It seems, in fact, that in the context of this investigation, the Public Prosecutor and Police applied such a measure to the computer of one or more of the persons being investigated.

3. Access to Relevant Premises (‘Crime Scene’) Another measure of ‘first aid’ is the so-called ‘access to relevant premises’, about which there are no specific rules. More exactly, many measures can be considered, depending on what you want to do. The proper measure to describe the scene is called ‘inspecting’ or ‘viewing’ (ispezione, CCP, Articles 244–46): ie a measure to observe and to ‘photograph’ the crime scene. This measure can be applied to any criminal offence. The purpose of inspecting a body (ispezione personale) or premises (ispezione di luoghi o cose) is to verify the signs and the marks left by a crime.21 Additionally, if it is necessary for the investigation, the Public Prosecutor or the Police can obviously search and seize the place. The Public Prosecutor or judge (autorità giudiziaria, CCP, Article 244, para 2) can order the inspecting. The police, who normally arrive first at crime scenes, are responsible for all the necessary urgent fact-finding operations, to avoid contamination of the crime-scene (CCP, Article 354). Concerning information to the defence, normally, if the Public Prosecutor decides to order an inspection of the person being investigated, he/she summons the person (CCP, Article 364, para 1). The person can come with a lawyer in attendance. If the Public Prosecutor needs to order an inspection but the presence of person being investigated is not necessary, he/she must inform the person’s lawyer at least 24 hours in advance of the inspection (CCP, Article 364, para 3).22 Concerning presence of the defence at the execution of the measure (CCP, Article 364, para 4), a lawyer always has the right to be present, even when he/she has not been informed. The right to be present doesn’t mean, however, a duty to be present: it is only a possibility. If he/she is not present, the police or Public Prosecutor can carry on the operation.23

20

See Marcolini, ‘Le cosiddette perquisizioni on line (o perquisizioni elettroniche)’ in Cass pen, 2010, 2855f. At the beginning of a physical inspection (ispezione personale), the concerned person (who can possibly differ from the person being investigated) must be advised he/she can ask for someone to be present during the inspection (CCP, Art 245, para 1). At the beginning of a premises inspection (ispezione di luoghi o cose) the concerned person is given a copy of the decree disposing the inspecting: CCP, Art 246, para 1. 22 There is an exception: if the Public Prosecutor has reasonable grounds to believe that provision of such information to the person being investigated, or to the lawyer, could eventually represent a threat to the investigation, he/she can skip information and proceed with the act (CCP, Art 364, paras 5 and 6). 23 An interpreter can be opportune, whenever the concerned person doesn’t understand Italian language. 21

376 Italy The legal system doesn’t provide for a judicial review, save in the event that the measure involves a search or a seizure.

4. The Measures of Interception Interception is probably the most significant activity which enforcement agencies can carry out in order to investigate and fight crimes, especially if these crimes are transnational. The traditional definition of the interception as ‘preventing something from leaving or from coming’ must be updated: for example, if we consider interception of communication between person on air, by phone or by internet or other forms of visual and acoustic surveillance, the measure doesn’t consist in preventing the communication or the activity, but in observing and recording it. As one of the most serious restrictions of fundamental rights (to privacy, to free communication, etc), this activity is possible only under specific conditions. (a) Interception of Postal Communications (Letters) The Public Prosecutor24 can seize letters in the postal system and open them (CCP, Article 254, which uses, once again, the expression autorità giudiziaria). The police cannot intercept letters at their own initiative: the authorisation of the Public Prosecutor—or his/her post factum validation within a few hours—is always needed (CCP, Article 353).25 The Public Prosecutor or judge (after the azione penale) can order seizure of letters when there is a reasonable ground that they come from or are directed to the defendant or, in any case, that they are relevant to investigation of the issue.26 This measure is viable for every criminal offence, both petty and serious. It is explicitly forbidden to seize letters between the person being investigated/defendant and his/her lawyer (CCP, Article 103). This postal communication can be seized only if there is a ground that it is body of evidence. CCP, Article 256 requires public employees to hand over to the Public Prosecutor or judge (after the prosecution) any kind of documentation they are asked for. The only exception concerns state or public secrets.27 Public Prosecutor (or judge) can check if the public secret is grounded. State secret must be validated by the Government.

24

Or judge after the prosecution (azione penale). There is however an emergency procedure involving the police regarding letters. When police officers are dealing with such communications, they can: hold the letters and send them immediately to the Public Prosecutor, who can seize and open them (CCP, Art 353, para 1); if there is some urgency, they can ask for the authorisation of the Public Prosecutor and directly open the letters (CCP, Art 353, para 2); once again, if there is some urgency, they can order the mail forwarding service to suspend the sending for 48 hours, so that the Public Prosecutor can seize the letters (CCP, Art 353, para 3). 26 If the letters are not relevant for the investigation, they must be immediately returned to the person they belong to (CCP, Art 254, para 3). 27 CCP, Arts 201 and 202. The definition of state secret is provided by Law No 124 of 3 August 2007 (see, especially, Article 39). The public secret (segreto d’ufficio), instead, is the secret that public administration must observe while carrying out its duties, and is protected by a criminal sanction (see Criminal Code, Art 326). 25

Investigation Measures 377 The police are usually charged with the execution of the measure, which is disposed by the Public Prosecutor or by a judge.28 (b) Interception of the Contents of Telecommunications (Content Data) CCP, Articles 266–71 concern the interception of telephonic communication (wiretapping) or of on-line communications. Such a measure is possible also in ‘John Doe investigations’ (ie investigations against unknown persons), as long as there is a serious base of a crime and this measure represents the only way to carry out the investigations (CCP, Articles 266–67). Interception can be applied only to more serious offences, for example intentional crimes punishable by imprisonment for life or for more than five years at the maximum,29 crimes against public administration, murder, etc (CCP, Article 266), and for some special misdemeanours, for example threatening telephone calls (see again CCP, Article 266). Generally, anyone can be intercepted at any time, but the communications cannot be used as evidence in the same cases mentioned above for the witnesses when a professional privilege or a state or public secret is involved. Another important principle: interceptions made without complying with the relevant conditions are invalid and cannot be used at trial. This is one of the oldest ‘exclusionary rules’ in the Italian system (for more details, CCP, Article 271). Finally, there are some special rules concerning the Prime Minister, members of the Government and Members of Parliament (Article 68 Constitution and Article 10 Constitutional Law No 1 of 16 of January 1989). Interception operations must be carried out by the office of the Public Prosecutor, save the possibility for the Public Prosecutor to authorise the use of equipment by the police (CCP, Article 268). All the interceptions must be recorded. In order to use the interceptions at the trial, they must be transcribed onto paper by an expert. The interception of the contents of telecommunications can last for only 15 days, but the operation can be extended for further periods of 15 days by the judge at the request of the Public Prosecutor, under the same initial conditions. By law, the contents of telecommunications involving third parties must be destroyed before the trial begins (CCP, Article 269). According to law, there should be a closed hearing (incidente probatorio) at which the judge of freedom, Public Prosecutor and lawyer for the person being investigated indicate the conversations relevant for the process. The judge of freedom instructs an expert to transcribe all the relevant conversations. The other material must be conserved on record, but it must be kept in secret and none can hear it.

28 According to the law, there will be always a ‘report’ (verbale) containing the description of the activity of interception of the communication. Notification requirements, information to the defence lawyer on place and time of the execution and judicial review are the same as for search and seizure. 29 In Italy every crime is punished with a sanction which Criminal Code (CC) predetermines in its minimum and maximum extension, according to the importance of the protected interest, to the seriousness of the misbehaviour and to the entity of the consequences. CCP, Art 266, says that in order to establish if wiretapping is possible for a certain crime, you should consider only the maximum extension of the sanction: if it is life imprisonment or if, at least, it exceeds five years, wiretapping is viable.

378 Italy Transcription is normally ordered after the azione penale, and this often results in newspapers (and the media in general) reporting the contents of the interceptions, even those irrelevant to the proceeding, but ‘spicy’ for the public opinion. It is very difficult for the persons involved in the interceptions, but not investigated, to be aware about the content of the interceptions before they appear on newspapers, to ask for their destruction on the ground of aforementioned CCP, Article 269. In recent years Parliament has been discussing a reform to avoid such a violation of privacy, but no new law has yet been enacted. Generally speaking, no duty to cooperate from persons intercepted is requested, understandably if we consider that interception requires those persons not to be aware, at least during the operations. But, in some special cases, persons—other than the person intercepted—can have a duty of cooperation. For example, CCP, Article 254-bis (as amended according to the Budapest Convention on Cybercrime of, 23 November 2001), says that server providers must save a copy of the seized data (and this applies also to data and traffic retention). Wiretapping is easier against organised crime, because a milder ground for an offence is required, and the operations can last 40 days (extendible by the judge): Article 13 of decreto legge No 152 of 13 May 1991, converted into Law No 203 of 12 July 1991. Police executes the measure under the supervision of the Public Prosecutor. The measure requires authorisation, which is requested by the Public Prosecutor; a judge, during pre-trial investigation the giudice per le indagini preliminary, decides with a grounded and briefly reasoned order authorising the interception if there are the necessary conditions. If there are, the authorisation is written, setting out a brief reasoning. There is no judicial review; note however that an authorisation without grounds would invalidate all the results of interception. As already said, interceptions made without the respect of these rule are subject to the exclusionary rule. There is also an emergency procedure. The Public Prosecutor can exceptionally authorise interceptions, when there is some urgency, but he/she must immediately (within 48 hours) ask for validation by the judge: CCP, Article 267, para 2. The results of the measure are, at first, recorded on tape (CCP, Article 268, para 1), then transcribed onto paper by an expert (CCP, Article 268, paras 6–8). Concerning notification requirements, there is no notification of wiretapping. Wiretapping or intercepting telecommunications ‘in a clandestine way’, without legal authorisation, is a crime: CC, Articles 615, 617, 617-bis, 623-bis. The defence lawyer (and the person being investigated) will be informed about the interception only at the end of the operations: CCP, Article 268, paras 4 and 6). (i) Monitoring of Telecommunication Traffic Data Monitoring of telecommunication traffic data is not an interception, but it concerns telecommunication freedom. In Italy, such monitoring activity is regulated, in particular, by the so-called ‘Privacy Code’ (Legislative Decree No 196 of 30 June 2003), by the interpretation of these dispositions made by National Privacy Authority and also by the decisions of the same Authority (although the interpretation and the decisions of the Authority are not statutory dispositions).

Investigation Measures 379 Monitoring of telecommunication traffic data is different from interception. This activity is considered a lesser incursion on the right of privacy than interception, and so the dispositions provide fewer limitations. Traffic data cannot reveal the content of communications but only external data. As under the Privacy Code, telecommunication companies have to collect traffic data (concerning telephonic and computer traffic data) for a specified period (limited, but not so short, as reveals the Italian Privacy Authority): 24 months for telephonic data and 12 months for internet data, if necessary for the prevention and repression of crimes: Article 132 of Privacy Code. Article 18 of the Privacy Code underlines the powers of public authorities concerning monitoring and treatment of telecommunication data: every form of this activity is possible only for institutional functions, in the framework of general principles of Privacy Code. This measure is applicable for all kind of offences, without exclusions. There are no limitations concerning the people involved. The Privacy Authority has power to control the activity of monitoring and collection of traffic data, in order to ensure respect for the general principles of the Privacy Code and fundamental rights (in particular, to privacy and dignity of person). The Authority also controls the elimination of traffic data and the way people collect data and control the computer terminals containing data. The Privacy Code specifies forms of control by companies involved in the field of telecommunication. These companies must introduce real and effective control in the phase of exchange of data and in their circulation, in particular by protocols avoiding the intrusion of other people or the loss of data. The phase of elimination of data is also under control and it is necessary to ensure a permanent deletion of traffic data. The legal system doesn’t specify particular measures of protection of third parties, other than the cautious conservation and the elimination of data. Under the Privacy Code, Article 132, para 3, traffic data must be sent by companies to the Public Prosecutor when he/she asks for them. Cooperation with the investigative authorities is highly regulated: telecommunication companies have a duty to provide the authorities all the information they have. The activity of monitoring and collection of traffic data is carried out by the telecommunication companies themselves (telephonic ones or internet service providers). The person being investigated or prosecuted, the victim, the other parties and their lawyers should have no direct contact with telecommunication companies, but, if they need the traffic data, must submit an application to the Public Prosecutor. Only the lawyer of the person being investigated or prosecuted can, in limited cases, present a direct request to the companies. There are no emergency procedures.30 The defence lawyer is normally informed of the execution of the measure only with the discovery at the end of the investigations (as provided in the CCP), save when he/she is submitting to the Public Prosecutor an application asking for the data from the companies.

30 As all the acts of the Police or of the Public Prosecutor or of the judge must be recorded or documented, the request of the Public Prosecutor to the telecommunication companies is written and documented; and the answer of the companies could either be written or contained in a technological device (email, USB key, and so on).

380 Italy The legal system provides a general control over the telecommunication companies, devolved to the Privacy Authority, which is a sort of ‘watchdog’ against violation of the fundamental rights and general principles of the Privacy Code, for example to guard against illegal collection of data after the period of time allowed. Finally, concerning the execution of the measure, while the Public Prosecutor will ensure that telecommunication companies send all the data requested, the Privacy Authority always controls the execution of the measures concerning monitoring, collection and destruction of traffic data. (c) Tracking and Tracing of Objects and Persons The phenomenon of tracking and tracing of objects and persons has no statutory rules. According to the Supreme Court, tracking and tracing of objects and persons in the ‘open air’, with GPS, is a measure that the police can individually set up. It is like a ‘tailing’ or, better, a ‘satellite tailing’, and needs no authorisation by a Public Prosecutor or by a judge.31 Since the rule has emerged from recent case law, there are still no indications as to possible restrictions or guarantees. It should be held, however, that if the measure affects a specific right recognised by the Constitution or by the ECHR (for example, the right to privacy), the measure is unlawful and it cannot be used. The measure can be applied for any criminal offence, both petty and serious offences, and must be clandestine, in the sense that the concerned person must be unaware of the tracking or of the tracing. So, the defence is not informed about or involved in the execution. No emergency procedure is possible.32 (d) Surveillance in Public and Private Spheres (Acoustic and Visual) Surveillance in the public and private spheres (acoustic and visual) can turn into interception, even of images (in the case, not frequent but still possible, of gestural communication). The applicable law concerning surveillance in the public and private spheres (acoustic and visual), is the CCP and the Privacy Code; the Privacy Authority has also provided various guidelines. First of all, every ‘acoustic surveillance’ is nothing but an interception of conversations: consequently, Code rules on wiretapping (CCP, Article 266f) must be applied. This kind of ‘acoustic surveillance’, intercettazione ambientale, is characterised by the physical presence of the persons (communication, not telecommunication), and is totally subject to Code rules on wiretapping. Moreover, if it takes place within a home, acoustic surveillance requires the probable cause that a crime is being committed there (CCP, Article 266, para 2). Visual surveillance is more problematic, since there is no specific rule, in criminal proceedings, about this phenomenon.

31

See Supreme Court, judgment no 9667, 10 March 2010. Also in this case, there will be a ‘report’ (verbale) containing the description of the activity of tracking and tracing. 32

Investigation Measures 381 It is important to make two clear distinctions: (i) the first concerns whether visual surveillance is made in the private sphere, in the public sphere, or in ‘places with privacy expectation’ (the latter category will be defined below); (ii) the second concerns the object of the visual surveillance: communicative or noncommunicative behaviour. Visual surveillance in the private sphere, if (and only if) concerning communicative behaviour is, once again, nothing but wiretapping, an interception of conversations: consequently, Code rules on wiretapping (CCP, Article 266f) should be applied. Visual surveillance in the private sphere, concerning non-communicative behaviour, is forbidden: the Supreme Court has said so.33 The reason is that Article 14 of the Constitution grants the right to privacy, and a law is required to limit it. Because such a law doesn’t exist (yet), this kind of visual surveillance is unlawful. Visual surveillance in the public sphere, concerning communicative behaviours (for example, gestural communication), is, once again, nothing but a wiretapping, an interception of conversations: consequently, Code rules on wiretapping (CCP, Article 266f) should be applied. Vice versa, visual surveillance in the public sphere, concerning non-communicative behaviour, is, in principle, free and doesn’t even have a criminal procedural nature: there is no regulation in the CCP and the Privacy Code only imposes, in some cases, a duty of information (for example, a poster with the wording: ‘place under surveillance’). Finally, the so-called ‘places with privacy expectation’. The creation of this category arises from the above-cited judgment of the Supreme Court.34 Reference is made to places which belong neither to private nor public sphere, but where people have an expectation of privacy: for example, public toilets or changing rooms. In these cases, visual surveillance of communicative behaviours would be, once again, nothing but wiretapping. More interestingly, the conclusions of the Supreme Court with reference to visual surveillance of noncommunicative behaviours, in the above-mentioned case, is that this kind of surveillance doesn’t require a legal framework, but only the authorisation of the autorità giudiziaria, the authorisation of the Public Prosecutor or judge.35 Since acoustic surveillance is nothing more than a wiretapping, the degree of ‘suspicion’ required is obviously the same as for wiretapping measures, and the restrictions are those of wiretapping measures. Plus, if acoustic surveillance, as said, is disposed at home, it requires the probable cause that the crime is being committed there (CCP, Article 266, para 2). Acoustic surveillance requires the presence of a ‘bug’ close to the speakers. This means it would not be possible to operate from the office of the Public Prosecutor: it is an exception to what was formerly said about wiretapping. The same conclusion also applies every time visual surveillance concerns communicative behaviours and, consequently, is nothing more than a wiretapping: the degree of ‘suspicion’ required is obviously the same as for wiretapping measures. Coming to visual surveillance in the public sphere, concerning non-communicative behaviours, as formerly said it is not even a criminal procedural measure, and there is no need of suspicion or even of a notitia criminis.

33

See judgment no 26795 of 28 March 2006. See, again, judgment no 26795 of 28 March 2006. 35 On this point see also Caprioli, ‘Nuovamente al vaglio della Corte costituzionale l’uso investigativo degli strumenti di ripresa visiva’, Giurisprudenza costituzionale (2008) 1832. On the meaning of the expression autorità giudiziaria, see above, n 14. 34

382 Italy Finally, visual surveillance in ‘places with privacy expectation’, concerning non-communicative behaviours, is subject to the mere authorisation of the Public Prosecutor or judge. It means that only a notitia criminis is needed, nothing more. Visual surveillance in ‘places with privacy expectation’, concerning non-communicative behaviours, can be disposed for any offence. It should be repeated for the last time that, if visual surveillance concerns communicative behaviours, being nothing more than a wiretapping, the limits are those of the wiretapping measures, seen above. On the execution side, acoustic or visual surveillance, concerning communicative behaviours and being therefore nothing more than a wiretapping, are subject to the rules concerning wiretapping measures (see above). Visual surveillance in ‘places with privacy expectation’, concerning non-communicative behaviours, will be normally disposed by the Public Prosecutor (it’s hard to conjecture by a judge): this means that the Public Prosecutor will normally entrust the police with execution of the measure. There is no emergency procedure; it is normally recorded as an investigative measure (there will be a written order of the Prosecutor, disposing the visual surveillance, and a verbale of the Police, describing the activity of visual surveillance carried out), and there are no notification requirements, nor is information given to the defence, nor can there be judicial review. Acoustic or visual surveillance, concerning communicative behaviours and being therefore nothing more than a wiretapping, is subject to the rules concerning wiretapping measures, in respect of the authorisation procedure, the emergency procedure, the recording, the notification requirements, the information to the defence, and the judicial review. (e) DNA Mining and Profiling. DNA Database Implementing the Treaty of Prüm, there is legislation regarding DNA profiles and databases.36 Analysis of DNA without the agreement of the person involved is possible only for certain serious offences (CCP, Article 224-bis), and it must be done by an expert. It is possible only if there is a criminal investigation: that is to say, only if there is a notitia criminis. In addition, this measure must be the only way to carry out the investigations: CCP, Article 224-bis, para 1. DNA analysis without the agreement of person involved is possible only when the investigation is referred to crimes punishable by life imprisonment or imprisonment of more than three years at the maximum.37 The operations to take the sample (of hair, saliva etc) necessary for profiling must respect the dignity and decency of the person, without causing any danger to his/her life. In the operation to take the sample it is mandatory to respect health not only of the involved person but even of eventual future children: CCP, Article 224-bis, para 4. The law says that the operation can be executed without the consent of the involved person: CCP, Article 133 and 224-bis, para 6. The measure is ordered by the judge but it is executed by an expert. The Public Prosecutor has to ask for the authorisation of the giudice per le indagini preliminari. Authorisation is written and reasoned. There is no judicial review. Please

36 37

See Law of 30 June of 2009, No 85, and new CCP, Arts 133, 224-bis, 359-bis, and 392. See above, n 29 on the meaning of this legal expression.

Investigation Measures 383 note, however, that any profile made without due authorisation is invalid, since there is an exclusionary rule as in wiretapping (CCP, Article 224-bis, paras 2 and 7). The emergency procedure is described by CCP, Article 359-bis. If delay might be dangerous for the investigation, the Public Prosecutor can order a forced and immediate execution. But he/she needs an immediate validation (within 48 hours) from the judge.38 The presence of a lawyer is mandatory, otherwise the operation is invalid: CCP, Article 224-bis, para 7.

5. Monitoring of Bank Transactions The CCP contains no rules applicable to monitoring of bank transactions, since there is no need of a notitia criminis. The relevant rules belong to a different branch of law, concerning the fight against money laundering: see, at least, Law Decree of 3 May 1991, No 143, and Law of 5 July 1991, No 197, concerning in general all the rules to prevent money laundering in bank transactions, and Decreto Legislativo of 21 November 2007, No 231, which implements Directives 2005/60/CE and 2006/70/CE, but without containing criminal measures. Monitoring bank transactions is possible both in case of criminal proceedings (seizure) and in case of ordinary control activities, especially if made by taxation authorities. By starting an inspection or control in financial and taxation fields, the involved authorities can obtain information about bank transfers of a person, concerning the last five years. The request concerns a defined person. The law on money laundering sets out a duty of the members of finance companies to report so-called ‘suspect’ transactions to the Italian Unit of Financial Information (Unità di informazione finanziaria, UIF), which is set up within the Bank of Italy and will, in turn, inform the Public Prosecutor of the notitia criminis. Bank and financial intermediaries execute measures as requested. The request contains the name of the person, a reason for the investigation, requested data and the number of days given for the answer to the authority. In case of emergency it is possible to obtain quite immediately the information requested. The request and the answer and the circulation of data are normally made through the internet. No notification, even to the defence lawyer, is required. Concerning judicial review, there are some rules provided for the protection of privacy and secret in bank activities.

6. Undercover Operations The rules applicable to ‘infiltration’, or undercover operations, are principally contained in Law 146 of 2006, which ratified the United Nations Convention against Transnational Organized Crime and its Protocols, and governs undercover operations (Article 9 of Law 146 of 2006).

38 The application of the Public Prosecutor will be documented, as well as the authorisation of the judge and the ‘report’ (verbale) containing the description of the activity of mining and profiling. The order of the judge, disposing the measure has to be notified to the involved person, to the defence lawyer and to the person being investigated: CCP, Art 224-bis, para 3.

384 Italy There are also some other dispositions in special legislation, for example concerning the prevention and supression of child pornography: Article 14 of Law 269 of 1998, and those concerning the fight against drug trafficking: Article 97 of the Decree of President of Republic 309 of 1990, on undercover activity, and Article 98 of the same Decree on controlled deliveries. To complete the picture, the rules concerning the activity of investigative authorities must be remembered too. Undercover operations are possible, according to Article 9 of Law 146 of 2006, only to collect evidence for serious offences. Regarding Law 146 of 2006 and the other special rules, there are many kinds of offences which may be investigated by infiltration: moneylaundering, organised crime, trafficking of drugs and people, smuggling of migrants, terrorism, child porn, and so on. Undercover operations must be ordered by the chief of each police force or agency, under the supervision of the Public Prosecutor. Police executes the measures. There are many special forms of this undercover operation: one example is the creation of an unmarked police website to attract authors of child porn related crimes: see again Article 14 of Law 269 of 1998. These kinds of measures don’t require authorisation: it’s better to talk about supervision of the Public Prosecutor. These measures are carefully documented on paper or on electronic devices. On the ground of Article 9, para 5 of Law 146 of 2006, as amended in 2010, the Ministry of the Interior can define more precisely the formalities of the infiltration rules. According to Article 9, para 1, letters (a) and (b) and para 1-bis of Law 146 of 2006, if an undercover Agent commits a crime, that is to say he/she cooperates in one of the crimes he/she has been investigating, he/she cannot be punished. More or less the same is said by Article 97 of the Decree of the President of Republic on undercover activity in the framework of the fight against drug trafficking.

7. Controlled Deliveries Controlled deliveries are defined by Article 1-(g) of the 1988 UN Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances as the ‘technique of allowing illicit or suspect consignments of narcotic drugs, psychotropic substances … or substances substituted for them, to pass out of, through or into the territory of one or more countries, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences established in accordance with article 3, paragraph 1 of the Convention’. The same definition is repeated in Article 2-(i) of the 2000 UN Convention against Transnational Organised Crime, and Article 2-(i) of the 2003 UN Convention against Corruption. Such activity is possible under the conditions and within the limits mentioned above.39 Please remember also that a particular undercover activity is set by Article 98 of the Decree of the President of Republic 309 of 1990, in the field of the fight against drug trafficking. These measures are carefully documented on paper or on electronic devices.

39

Section B.6.

Investigation Measures 385 8. Invoking the Assistance of Experts to Examine Clues etc. During the Pre-Trial Phase The Public Prosecutor, police and the defence lawyer can, during the pre-trial phase, appoint an expert (for the police, CCP, Article 348, para 4; for the Public Prosecutor CCP, Article 359; for the defence lawyer CCP, Articles 391-bis and 233). This is a choice of the parties and doesn’t need any particular ‘suspect’. The measure can be applied for every criminal offence, both petty and serious offences. If one of the parties—ie Public Prosecutor or defence—wants to assign to an expert an activity which cannot be repeated at the trial (attività irripetibile: for example, an autopsy), before the expert begins this party must notify the other one, in order to allow him/her to take part in or observe the operations with his/her own expert: CCP, Articles 360 and 391decies, para 3. The expert puts on record the result of his/her activity.

9. Pre-Trial Arrest and Detention Rules on arresting or detaining a person ‘suspected’ of a crime are provided by CCP, Article 379f. Unlike pre-trial custody, arrest and detention are a shorter restriction of freedom: within the 48 hours the concerned person must be presented to a judge, who verifies in a hearing the regularity of the arrest or of the detention in the next 48 hours. After the hearing, the person arrested or detained can remain in custody only if the Public Prosecutor requests, and the judge authorises, a pre-trial custody (see below). There are two possibilities of restriction: the arrest in flagrante delicto (arresto in flagranza), which finds legal framework in CCP, Articles 380 and 381; the detention of a suspect of a crime (fermo di indiziato di delitto), which finds legal framework in CCP, Article 384. The degree of suspicion necessary to execute the measure of the arrest in flagrante delicto is very high. Italian law provides a definition of flagranza di reato that occurs when the person is caught in the act of committing the crime or immediately after (CCP, Article 382). An arrest in flagrante delicto can only be applied to the most serious offences. There are two types of arrest: mandatory and voluntary (optional). Mandatory arrest is, as the word implies, compulsory, and it applies for the most serious crimes.40 Voluntary (optional) arrest is not compulsory, and it can be disposed, similarly to the mandatory arrest, only for the crimes indicated by law.41 Voluntary arrest doesn’t mean, however, arbitrary arrest. A person may be arrested only if the measure is justified considering the gravity of the offence and his/her dangerous personality.

40 It is, in detail, provided for two groups of crimes: first, intentional crimes punished by imprisonment for life, or by imprisonment for not less than five years at the minimum and than twenty years at the maximum, according to the CC (CCP, Art 380, para 1); secondly, a closed, but long list of crimes which the legislator considers very serious (CCP, Art 380, para 2). 41 It is, in detail, provided: for intentional crimes punishable by imprisonment for more than three years at the maximum, or for non-intentional crimes punishable by imprisonment for more than five years at the maximum, according to the CC (CCP, Art 381, para 1); and for a closed, but long list of crimes which legislator considers serious (CCP, Art 381, para 2).

386 Italy Both mandatory and optional arrests are executed by the police. When an arrest is executed by a private person, this person must immediately call the police (CCP, Article 383). No one can be arrested because of their refusal to testify: in this event, however, a preliminary investigation may be initiated for the crime of false witness (CCP, Article 476, para 2). The same offence occurs if someone lies or denies the truth. The degree of suspicion necessary to execute the measure of the fermo di indiziato di delitto is not as high as that of the previous measure but is, nevertheless, considerable. CCP, Article 384 says that there must be serious evidence of crime against that person (persona gravemente indiziata di un delitto).42 This kind of detention can be executed both by the police and by the Public Prosecutor. Specifically, the police act when the Prosecutor has not yet taken over the investigation, or when there is no time to inform him, in order to prevent the person fleeing after the crime (CCP, Article 384, paras 2 and 3). Article 13 of the Constitution says that no one shall be deprived of their liberty, save in accordance with law and when the Public Prosecutor or judge43 says so in a reasoned statement. The CCP in force says only a judge can issue this statement. The police can surely arrest or detain someone with interim measures, but must inform him/her about his/her rights, including the right to a lawyer (CCP, Article 104), and must inform the Public Prosecutor, who is entitled to decide whether to present him/her to the judge of freedom (giudice per le indagini preliminari) or to release him within 48 hours after the arrest or detention. The giudice per le indagini preliminari must pronounce a post factum validation in a hearing to be made within the next 48 hours (overall, 96 hours after the arrest or the detention). During this hearing it is mandatory to explain the reasons of the arrest, with the presence of the lawyer (CCP, Article 391). If there is no validation, the person must be released immediately,44 in accordance with the ECHR, under Article 5, para 1, letter c). This post factum judicial control concerns the work of the police, that is to say, the events which have already happened. If validation is granted, it means that the police ‘did a good job’; if validation is not granted, it means that the arrest or the detention were unlawful and wrong. But this problem is different from the other one: what if we think that the arrested or detained person should be kept in pre-trial custody? As said, judicial post factum control concerns only the past; in order to execute a pre-trial custody, with effect on the future, a specific further request is needed. In this case, the Public Prosecutor, as well as requesting the post factum validation, must ask the same judge of freedom to order the pre-trial custody of the person arrested or detained. Judicial post factum validation on arrest or on detention,

42 The detention of a suspect of a crime can be applied only in case of wilful crimes punishable by imprisonment for life or by imprisonment for not less than two years at the minimum and more than six years at the maximum, according to the CC, or in case of crimes related to arms, terrorism and subversion of democracy (CCP, Art 384, para 1). 43 In Italian Constitution, autorità giudiziaria: see above, n 14. 44 When the police arrest or detain a person, they must immediately inform the Public Prosecutor, who can question the detainee. A first important decision is entrusted to the Public Prosecutor, who must decide, within 48 hours of the arrest or detention, whether to release the person or to present that person before the giudice per le indagini preliminari in a hearing for the post factum validation (CCP, Arts 386, 389 and 390). If a person is presented to the judge for the post factum validation, the hearing must take place within the next 48 hours (CCP, Art 391). During the hearing the judge must question the person and control the circumstances of the arrest or of the detention.

Investigation Measures 387 from one side, and pre-trial custody, from the other side, are different and independent tasks of the judge, although he/she must decide on them in the same hearing (CCP, Article 391). Post factum validation of the judge of freedom on arrest or on detention is, in turn, subject to judicial review: it can be appealed to the Italian Supreme Court (Corte di Cassazione, CCP, Article 391, para 4).45 Every single procedural act of the police or of the Public Prosecutor or of the judge has to be recorded or documented. Hence, the arrest or the detention will be recorded or documented; the presentation to the judge for the post factum validation will be; the hearing will be; and the decision of the judge will be. In these cases information to the lawyer is necessary as well: if the Public Prosecutor wants to question the person, before presenting him or her to the hearing for the post factum validation, it is necessary to inform his or her lawyer, who must be present during the questioning (CCP, Article 388); in case of hearing for the post factum validation, the date of the hearing must be notified to the Public Prosecutor, to the person and to his or her lawyer (CCP, Article 390, para 2); the decision after the hearing is notified to all the parties, including the lawyer, to allow all of them the exercise of the right of appeal (CCP, Article 391, paras 4 and 7). The presence of lawyer is necessary when the person under arrest or detention is questioned by the Public Prosecutor (CCP, Article 388) and during the hearing for the post factum validation (CCP, Article 391, para 1).46

10. Pre-Trial Custody Rules on pre-trial custody are provided by CCP, Article 272f. Degree of ‘suspicion’ is described in CCP, Article 273, which says that reasonable circumstantial evidence is needed (gravi indizi di colpevolezza) for a similar (temporary and before a definitive conviction) restriction of freedom. To understand this standard you must remember that conviction after trial requires that the person being prosecuted is found guilty beyond any reasonable doubt (CCP, Article 533). For pre-trial custody, something less is needed: a probable cause the person committed a crime. Nevertheless, it is worth mentioning that in recent years the difference between evidence sustaining a verdict of guilt after the trial judgment, on one hand, and circumstantial evidence sustaining a measure of pre-trial custody, on the other hand, has decreased. This is due to the legislator, who has explicitly applied to the pre-trial measures rules which formerly were applicable only to the trial judgment (CCP, Article 273, para 1-bis); and to the jurisprudence, whence has arisen the principle called ‘need for

45 In the event of arrest or detention, some activity of notifi cation is required: when they arrest or detain a person, the police must inform his or her parents without any delay (CCP, Art 387); if the Public Prosecutor wants to question the person, before presenting him or her to the hearing for the post factum validation, it is necessary to inform his or her lawyer, who must be present during the questioning (CCP, Art 388); the date of the hearing for the post factum validation must be notified to the Public Prosecutor, to the person and to his or her lawyer (CCP, Art 390, para 2). Finally, the decision after the hearing is notified to all the parties, to allow them the exercise of the right of appeal (CCP, Art 391, para 4 and 7). 46 It must be remembered that an interpreter or translator are designated every time the person being investigated or prosecuted, or another party to the proceedings, or a witness needs to declare something or needs to understand something and they don’t speak Italian (CCP, Art 143).

388 Italy completeness of the phase of the investigation’ (principio di necessaria completezza delle indagini preliminari).47 If the investigation has to be complete, this is clearly going to enrich also the basis of circumstantial evidence of the measures of pre-trial custody. The gravi indizi di colpevolezza are not enough for the pre-trial custody to be applied to a person. At least one (or more) of the precautionary needs (esigenze cautelari, CCP, Article 274) is required as well: the danger that the defendant, if free, will flee; the danger that he/she, if free, will destroy or contaminate evidence; finally, the danger that he/she, if free, will commit other similar crimes. Pre-trial custody may be applied only for more serious offences, which are defined by CCP, Article 280, para 2: those crimes punishable by imprisonment for not less than four years at the maximum. There are, moreover, some notable restrictions: —

—

—

no custody can be applied when the results would be that the author of the fact cannot be convicted (CCP, Article 273, para 2) or if probation can be awarded (CCP, Article 275, para 2-bis); custody is the far more severe of all the pre-trial measures. This is why the legislator wants custody to be the extrema ratio: this means it can only be applied when the other measures appear inadequate (and the judge must reason on this in his/her decision, CCP, Article 275, para 3); custody cannot be applied to some categories of persons being investigated or defendants: pregnant women, mothers of children under the age of three years (or fathers, when the mother is unavailable for some reason), persons aged over 70, patients with serious diseases (CCP, Article 275, para 4 and CCP, Article 286-bis).

There are also special forms. Usually, pre-trial custody is disposed in jail (CCP, Article 285). Alternatively, if a person needs health care, pre-trial custody can be disposed in hospitals (CCP, Article 286). Another pre-trial measure is ‘house arrest’ (CCP, Article 284) which basically is a restriction of liberty of the defendant not in a public jail, but in his or her own house. This clearly allows a saving of money and other material means for the judiciary system. The two measures—custody and house arrest—have an important intersection: when the judge disposes custody, he can replace that measure with house arrest with electronic surveillance (CCP, Article 275-bis). Unfortunately, this is still ‘law in the books’: electronic devices are not freely available in daily practice. The measure is decided by the judge (at the pre-trial stage, the giudice per le indagini preliminari) at the request of the Public Prosecutor, according to Article 13 of the Constitution. The Public Prosecutor addresses the application to the judge, enclosing not all the investigations, but only those investigations he/she considers relevant, plus all exculpatory evidence (CCP, Article 291). The judge decides whether there are all the conditions for a pre-trial custody: ie the gravi indizi di colpevolezza, and one of the necessary precautionary needs mentioned above (danger of fleeing, danger of alteration of evidence, danger of re-offending).

47

See Italian Constitutional Court, judgments nos 184 of 2009, 115 of 2001 and 88 of 1991.

Investigation Measures 389 If all the prerequisites exist, the judge issues the order, which also contains the reasoning (CCP, Article 292). Reasoning must explain inter alia why the exculpatory evidence, if any, did not convince the judge not to issue the order. The concrete execution of the measure is up to the police (CCP, Article 293) which, when enforcing the measure, must inform the person concerned about his/her rights, including the right to a lawyer (CCP, Article 104). More exactly, the police must consign to the concerned person a copy of the order issued by the judge and must inform him/her about the right to counsel (CCP, Article 293). This way, the person is informed in detail of the reasons for his/her detention, and can organise a defence. The judge’s measure is subject to review (CCP, Article 309). The review (riesame) is set within 10 days from the execution of the measure; it is addressed to and decided by the Court of Freedom (Tribunale della Libertà), which is composed of three judges. The Court of Freedom has a penetrating power of control of the measure (CCP, Article 309, para 9). Moreover, there are terms for the decision which are imperative: if the riesame is not decided within 15 days, pre-trial custody is nullified. A decision of the Tribunale della Libertà, whatever it is, can be appealed to the Corte di Cassazione (CCP, Article 311). 11. Questioning the Person Being Investigated, Free or Under Detention The person being investigated, ie the person whose name is on the record ex Article 335 CCP, can always stand for questioning (interrogatorio); in their turn, the Public Prosecutor and police can (not must) at every time question the person being investigated (the police only if the indagato is free). The questioned person has the rights to have a lawyer and to know the summary charge, ie the initial hypothesis of crime; he/she must be warned about his/her other rights, ie, similarly to ‘Miranda warnings’, that anything he/she does or says, may be used against him/her in the future trial; he/she has the right to remain silent and to refuse to answer questions, but the investigation will go on; if he/she tells something against other people (for example, against an accomplice) he/she’ll must testify, becoming a sort of ‘crown witness’ at the trial (CCP, Article 64). The person being investigated must only and always answer at least those questions, which the Public Prosecutor and police ask first, regarding his/her identity (CCP, Article 66). If the person being investigated doesn’t understand Italian, an interpreter or a translator is appointed (CCP, Article 143).48 To guarantee the right to silence in advance, when a ‘witness’ (testimone, or better persona informata sui fatti)49 is questioned in the investigation stage, the police or Public Prosecutor must interrupt the questioning, whenever it appears the mere suspect that he/ she has in fact committed a crime. Hence, the witness becomes a person being investigated (CCP, Article 63) and he/she is warned about all the rights above and, consequently, can remain silent and anything he/she said before cannot be used against him/her at the trial.

48 This article applies every time interpretation or translation is needed by the person concerned and he/she doesn’t understand Italian. See section E.3. 49 A terminological clarification: in the Italian legal system, a ‘witness’ is a person who testifies under a duty to tell the truth in the trial. When the same person is summoned to declare something, but at the investigation stage, he/she is not called a witness, but a ‘person aware of the facts’ (persona informata sui fatti).

390 Italy When a person, who is free, is summoned for questioning, he/she is obliged to present. If the person doesn’t present, the Public Prosecutor can ask to the giudice per le indagini preliminari for a forced retinue of the person (CCP, Articles 132, 376): this means that the person is coercively taken and brought before the Public Prosecutor and there he/she must remain for the time necessary for the questioning. This measure doesn’t imply a finding of guilt: it is merely a consequence of the previous non-appearance of the person. Summarily, the questioning of the person being investigated or prosecuted is never mandatory for the Public Prosecutor or the police and doesn’t require the person to be under arrest or detention; but if the questioning is disposed, the person must present. The person can be questioned by the police, but in this case person must be free (CCP, Article 350), or by the Public Prosecutor (CCP, Article 375), both in the case he/she is free and in the case he/she is under arrest. The giudice per le indagini preliminari questions only the person under arrest or detention in order to control and ensure observance of the correct conditions of arrest or of detention, as seen before.50 The Code of Criminal Procedure expressly provides that at the trial the witness during his or her examination, can be authorised by the judge to refer to written material, in order to ‘help his or her memory’ (in aiuto della memoria): CCP, Article 499, para 5. The same principle applies to the police,51 to the expert (perito)52 and, finally, to the defendant.53 Nevertheless, all these provisions regard only the trial phase. What about the investigations? When a person is questioned (or interviewed) as a witness or as an expert or as a person being investigated during the pre-trial phase, although there is no express provision, the conclusion of jurisprudence and doctrine is that it is possible to apply by analogy the above provisions. Thus, the person questioned (or interviewed) can always be authorised to refer to documents during his/her questioning (or interview). It is however important to underline that the person can be authorised but does not have a right to be. It means the authorisation given by the judge (at the trial) or by the Public Prosecutor or by the police (during the investigations) is quite a discretionary measure. Actually, with the only exception of the expert, whose position is quite peculiar, the examination or the interview should normally be conducted orally and the possibility to use documents or other written texts could seriously interfere. This is the reason this possibility is subject to an authorisation by the authority and it is not a right.

12. The Right to Silence During the Pre-Trial Procedure and to be Informed that Statements may be Used as Evidence As mentioned, the right to silence and to be informed that statements may be used as evidence during the pre-trial phase are both guaranteed.

50

See sections B.9 and B.10. The police, if heard as witnesses, can be authorised to such a consultation, with regard to the reports made during the investigation: CCP, Art 514, para 2. 52 The expert (perito) has the possibility, during his or her examination at the trial, to refer to ‘documents, written notes and publications’ (documenti, note scritte e pubblicazioni: CCP, Art 501, para 2), and his or her written expertise can be put into the record only after the oral examination (CCP, Art 511, para 3). 53 The defendant, during his or her examination, can be authorised by the judge to refer to written material, just like a witness: this is because CCP, Art 503, para 2 makes reference to CCP, Art 499, para 5. 51

Prosecution Measures 391 As soon as the interrogatorio begins, the Public Prosecutor informs the defendant that he/she has the right to be silent and that, if he/she decides to declare, his/her statements may be used as evidence against him/her: CCP, Article 64, para 3, lit a) and b). But what about statements against other persons? At the beginning of the questioning the suspect is informed also that if he/she declares something about facts regarding other persons, he/she will become a witness with respect to these facts: CCP, Article 64, para 3, lit c).54 He is informed orally, but everything is then written on the report (verbale).55 The consequences of non-information are clearly established by CCP, Article 64, para 3-bis: if the person being investigated is not informed of his/her right to silence and of the consequences of his/her declarations (possibility to use his or her statements as evidence against him/her or against other persons), such declarations cannot be used. This is a clear example of an exclusionary rule aimed to guarantee the freedom of the person being investigated. It is important to underline that the person being investigated has no duty or obligation to cooperate: he can decide not to cooperate. The presumption of innocence means that the burden of proof is on the Public Prosecutor. There is only one thing the person being investigated can never refuse to declare: CCP, Article 66 says that he/she must always reveal his/her personal identity; otherwise he/she commits a crime.

C. PROSECUTION MEASURES

1. The Start of the Proceeding: the Notitia Criminis Criminal investigation begins with a notitia criminis. The typical notitiae criminis are the denunciation (denuncia) and the report (referto). The denuncia comes from a member of a public agency or power (CCP, Article 331) or even from a private person (CCP, Article 333). The content is always the same: facts, if possible evidence and, if possible as well, the name of the author (CCP, Article 332). A denuncia is mandatory for police officers and for members of a public authority, and optional for private persons, excepting a limited list of very serious criminal offences (CCP, Article 333). The referto comes from a doctor or from another person operating in the health field (CCP, Article 334). It is always mandatory, except in very few cases (Article 365 CP). Atypical notitiae criminis have other names (esposto, ie exposition of facts; rapporto, ie account), etc; the content, however, is practically the same.

54 This provision is very recent (2001). Previously, the role of the person being investigated or of the defendant was incompatible with that of a witness: that is, the person being investigated or the defendant who decided to accuse another person (for example, an accomplice), was not obliged to swear and to say the truth. Accordingly, the judge couldn’t use such declarations as witnesses ones, but only to ‘corroborate’ declarations made by other persons or other kind of evidence (this rule still exists: CCP, Art 192, paras 3 and 4). 55 During the pre-trial phase, every statement coming from the person being investigated must be recorded and put in a written report (verbale), which is the only way to demonstrate that a statement has been made from him or her. For this reason, the code forbids everybody, and especially the police, to testify on the statements the person being investigated made (CCP, Art 62): the only way to prove them is to put them in the written report. There is only one exception: if a crime has just been committed and the police find the person being investigated at the crime scene, they can question him or her, even without the presence of the lawyer: but the statements of the defendant cannot be put on the report, they can only be used in order to ensure the immediate continuation of the investigation (CCP, Art 350, para 5).

392 Italy A special mention must be made of the complaint (querela): a notitia criminis which applies only in the special cases provided for by the law. The querela comes from the victim of a crime (Articles 120f CC, 336f CCP) and, unlike all the other notitiae, has to be presented within three months from the notice of the crime, has to respect some formal requirements and is the necessary condition to prosecute (ie without a querela, the trial cannot begin). The natural addressee of every notitia criminis, typical or atypical, and of every complaint is the Public Prosecutor, who has the duty of entering it into the record of the notifications of crimes (registro delle notizie di reato: Article 335 CCP). Only a notitia criminis that is clearly improbable (for example: the murder of a cartoon character; the theft of a mythological item; and so on) may not be recorded. The Public Prosecutor and the police too can seek, on their own initiative, notitiae criminis, which must then be entered into the above mentioned record (Article 330 CCP). Following registration in the Record, there starts to elapse the time for the phase of investigation, that has a maximum permissible duration, depending upon the seriousness of the crime (Articles 405–407 CCP).

2. The End of the Pre-Trial Stage (a) The Legality or Mandatory Principle to Prosecute According to the principle directly stated by Article 112 of the Constitution, the Italian justice system is based on the legality principle. Since the prosecution (azione penale) is mandatory, the Public Prosecutor ‘must’ prosecute whenever there is a probable cause that the person being investigated will be convicted at the end of the trial (CCP, Articles 405, 408 and eCCP, Article 125). In other words, the case must be dropped whenever there is insufficient evidence to attest that someone is involved in the crime, or that a crime was committed. The Public Prosecutor has to drop the case even when it is impossible to identify the person who committed the crime or there is no complaint (querela) from the victim, which is necessary to prosecute some offences. The duty to prosecute is subject to judicial review. A Public Prosecutor who wants to drop a case has to ask the judge of freedom for a measure to dismiss. If the judge holds that the motion of the Public Prosecutor is not grounded, after a hearing with the person being investigated and the victim (and their lawyers) and the Public Prosecutor, he/she can order the Public Prosecutor to make new additional investigations or directly to prosecute. Otherwise he/she dismiss (archivia) the case, in accordance with the motion of the Public Prosecutor. When the Public Prosecutor asks the judge of freedom to dismiss the case, he/she has to notify his/her motion to the victim, who asked for this notification. The victim, or better his/her lawyer, has the right to see and to copy the dossier,56 in order to decide whether or not to oppose the Public Prosecutor’s request of dismissal (opposizione all’archiviazione). If 56 There is another situation where the victim can have access to the dossier of the pre-trial investigations: if and when the Public Prosecutor prosecutes someone with the indictment (azione penale). Normally, during the pre-trial phase, the ‘confidentiality of investigations’ forbids any disclosure. On this principle, see below, section E.2(a).

Prosecution Measures 393 so, the victim must, with the opposition, give to the judge of freedom the elements to verify whether or not the Public Prosecutor has correctly asked for the dismissal.57 This solution of Italian criminal procedure was modelled on the German Klageerzwingungsverfahren. It is also possible to reopen a closed case: to do so requires an authorisation of the judge of freedom, at the request of the Public Prosecutor, on the grounds that new investigations are possible (CCP, Article 414). Against the decision to reopen or not to reopen there is no remedy in law. The victim can always try to persuade the Public Prosecutor to change his/ her opinion about a case he/she dropped. However, the legality principle operates only in books. In reality it is impossible to investigate and/or to prosecute all the crimes. A great number of notitiae criminis cannot be prosecuted and when they are, it can be a long time after the date of the crime. Due to the prescrizione del reato (an elapsed time, which inhibits trial after a certain number of years58), a lot of processes end with a pronouncement that the prosecution of the crime is time-barred. (b) Multilateral Disposal of the Case (Negotiated Justice and Diversion) The principle of mandatory prosecution, according to Article 112 of the Italian Constitution, is theoretically incompatible with ‘alternative’ forms of jurisdiction. An indictment must be presented whenever there is a probable cause that the defendant will be convicted; and after the indictment (azione penale), the trial must end with a judicial decision, so there is no possibility to create forms of diversion such as those that are so frequent in common law systems. However, the subject has been studied59 and the Italian legislature has ‘created’ something similar to common law solutions in two cases: for petty offences and for young offenders. First there is the possibility, before a magistrate, called justice of the peace (giudice di pace), of acquittal in cases of especially ‘small’ offences (Article 34 of Decreto Legislativo of 28 August 2000, No 274) and in cases of compensation or restitution of damages (Article 35 of Decreto Legislativo of 28 August 2000, No 274). The second is the possibility, before the Juvenile Court, of acquittal for the special ‘irrelevance’ of the offence (Article 27 of the Decree of President of Republic of 22 September 1988, No 448) or the possibility to be put on probation (messa alla prova) for young offenders (Article 28 of the Decree of President of Republic of 22 September 1988, No 448). The justice of the peace can decide only petty offences (ie certain misdemeanours, such as insults or threats); instead, the Juvenile Court can issue an acquittal for the special ‘irrelevance’ of the offence, or can order the probation (messa alla prova) for every crime committed by the minor.

57

See, on all these aspects, CCP, Arts 408, 409, 410. The law fixes that period of time, depending on the seriousness of the crime; for a misdemeanour, the time is shorter than for an offence. There are also crimes (such as those against humanity) for which there is no expiration date: in these cases, prosecution will never be time-barred. 59 See Mannozzi, La giustizia senza spada:uno studio comparato su giustizia riparativa e mediazione penale (Milan, Giuffrè, 2003). 58

394 Italy The process in the Juvenile Court is suspended during the probation for one or three years (depending on the gravity of the offence); the court ordering the probation can set some rules for the young defendant, including a conciliation between him/her and the victim. In some cases, these ways of diversion require a consent. The justice of the peace can dismiss a case (ie before the prosecution, archiviare) for special ‘smallness’ only if the victim expresses no interest in a prosecution; the justice of the peace can order acquittal (ie after the prosecution, azione penale) only if neither the defendant nor the victim oppose (Article 34 of Decreto Legislativo of 28 August 2000, No 274). Compensation or restitution of damages implies an agreement (Article 35 of Decreto Legislativo of 28 August 2000, No 274). An acquittal for the special ‘irrelevance’ of the offence (Article 27 of the Decree of President of Republic of 22 September 1988, No 448) is issued after a hearing in the presence of the young defendant and his/her parents; probation obviously requires the participation of the young defendant. All decisions in this field are written and reasoned, and the involvement of the defence is necessary.

3. Committing to Trial and Presenting the Case in Court At the request of the Public Prosecutor, but before the public trial, a different judge (giudice dell’udienza preliminare) has to verify in a preliminary hearing (udienza preliminare) that the request has a real factual basis, ie that the indictment is well grounded on the results of the investigations and, consequently, that there is a probable cause that the defendant will be convicted at the end of the public trial. At the end of the preliminary hearing, the giudice dell’udienza preliminare decides either to commit the case to trial or to acquit. A preliminary hearing is always necessary for more serious crimes. However, the defendant can waive this hearing and decide to appear directly in court for the trial: CCP, Article 419, para 5. A preliminary hearing is not provided for minor offences, punishable with imprisonment not higher than four years (CCP, Article 550): in these cases, there is no preliminary hearing and the Public Prosecutor summons directly the defendant to the court. The decision of the judge of a preliminary hearing looks very like a decision of a ‘pretrial chamber’, even if he/she is only one person, while the chamber is a court composed by several judges. Actually, the origin of the preliminary hearing is the same as that of the pre-trial chamber: ie the giurisdizione istruttoria (investigating jurisdiction) of French legal tradition. The Public Prosecutor represents the case in court. Since the office of the Public Prosecutor is burdened with much work and many cases, in practice it is unusual that the person of the office, who carried out investigations, is also the same person at the trial. At the trial, it is more usual to find another person of the office or also a ‘Lay Prosecutor’, that is to say a Public Prosecutor who doesn’t belong to the professional judiciary system but is appointed, between lawyers, only for a given time (magistrato onorario).

Law of Evidence 395 D. LAW OF EVIDENCE

1. The ‘Double Dossier’: Oral Evidence and Written Report After the entry into force of the new accusatorial code of 1989, the Italian legal system has a new law of evidence too. Previously, according to the ‘Rocco’ Code (1930-89) and to the French tradition, there was no such law of evidence: you could speak about the evidence only referring to the investigation powers of the ‘judge of instruction’ (giudice istruttore). Today a large part of the CCP is dedicated to the law of evidence. At the public trial, evidence mainly consists of declarations coming from witnesses and experts. Only a very few of the investigative measures carried out during the pre-trial stage can be used by the judge of the trial to decide. In fact, the entire system is based on the so-called ‘double dossier’ principle. This means that there is a first dossier, the dossier of the investigation, which collects all the acts and measures carried out during the preliminary phase (CCP, Article 416, para 2) including, therefore, the police ‘written reports’. Then, there is the trial dossier (CCP, Article 431), ie a dossier which contains all and only the evidence which can be used by the judge at the end of the trial to decide if the defendant is guilty or not. The relationship between these two dossiers is, theoretically, simple. Ordinarily, according to Article 111, paras 3 and 4 of the Constitution, evidence is to be presented orally, in a public hearing, before the judge who has to decide, and nothing which has been done or acted during the investigation can enter or be inserted in the trial dossier.60 However, there are at least two very important exceptions. The first is that activity which cannot be repeated at the trial must be inserted in the dossier—for example, the record of a search or of a seizure, the record of a wiretapping, the record of the declaration of a witness who unexpectedly died, and so on.61 The second is the consent of the defendant: if the defendant says so, written reports can be inserted in the trial dossier and can be used by the judge (CCP, Article 493, para 3). Normally, investigative measures which were carried out in pre-trial and became unrepeatable at the public trial are ‘guaranteed’ by the presence of the lawyer. The term ‘report’ (rapporto) evokes what in the former criminal procedural code (Rocco Code) was the ‘account’ that police used to send to the Public Prosecutor about the acts and measures of the investigation carried out. Normally, such written reports are not admissible as evidence in the trial, because only oral evidence is admissible.62 The new code determines the evidence and, inter alia, the ‘document’ (CCP, Article 238), ie all the sensible supports (on paper, on hard disk, etc) with communicative content, that 60 It could be useful to remember that a completely different point of view arises whenever the proceeding ends with a plea bargaining (CCP, Art 444). When the defendant enters a guilty plea, the judge must decide on the ‘written reports’ of pre-trial investigation, without any oral evidence. In this case the use of written reports is the ordinary way to decide upon the culpability and/or punishment of the defendant. Something very similar happens in the ‘summary trial’ (giudizio abbreviato), which is a special proceeding the defendant has the right to ask: here the judge decides on the ‘written reports’ of pre-trial investigation too (CCP, Art 438). 61 To the examples already made above can be added the record of a shadowing made by the police during the investigation. 62 The written report of the police cannot be used by the trial judge: he or she can decide only considering what the Policeman says at the trial, during the cross-examination by the public prosecutor or the lawyer (at the end of the examination, the judge too can question the witness: CCP, Art 506, para 2).

396 Italy are normally formed out of the criminal proceeding. For example, according to the law, a ‘document’ can be a letter found on the crime scene. This kind of evidence can directly enter the trial dossier and be used by the judge. Finally, there is a specific regulation (CCP, Article 238) on the topic of the possibility to use, in a trial, evidence gathered in another proceeding (pre-trial phase or trial: for example, a witness declaration put on the record in a different trial).

2. Status of Illegally or Improperly Obtained Evidence In principle, judges cannot use illegally obtained evidence, ie evidence gathered without observance of the criminal rules. This principle is clearly set, for example, in the field of illegal wiretapping.63 Obviously not all the criminal rules are relevant: according to CCP, Article 191, the judge must exclude any evidence obtained against an express prohibition imposed by the law (once again, the example can come from rules on wiretapping: a wiretapping, gathered without the necessary order of the judge, must be excluded). Italian law doesn’t clearly adhere to the theory of the fruit of the poisonous tree; according to case law, this theory could be applied in the Italian system, but the decisions of the Italian judges on this matter are neither frequent nor clear. For example, in a case regarding an illegal house search, the Supreme Court clarified that the consequent seizure was possible in so far as the police have an obligation to seize anything which can be regarded as a ‘body of evidence’, even if illegally obtained.64 That is to say: the Supreme Court admitted the house search was illegal but, on the other hand, emphasised that, despite the illegality of that search, the police still had a duty to seize the evidence.

E. STATUS AND RIGHTS OF THE ‘ACCUSED’

The CCP distinguishes between the persona sottoposta alle indagini or the indagato, from the imputato (CCP, Article 60 and 61). The first two expressions signify the person being investigated by the Public Prosecutor during the pre-trial stage; the person, whose name is registered in the record according to Article 335 CCP is an indagato until the end of the investigation phase. The latter expression means the defendant, ie the person being prosecuted by the Public Prosecutor and committed to the trial. Therefore, Italian legal terminology has no equivalents of the terms ‘suspect’ and ‘suspicion’. Indagato and imputato have, in principle, the same rights. These rights are to be especially protected in the preparatory stage, when the Public Prosecutor or the police are secretly conducting their investigations and using all the measures and the powers of the state against the private citizen.

63 64

See above, section B4(b). Cass pen, sez un, 27 March 1996, no 5021, Sala.

Status and Rights of the ‘Accused’ 397 1. Presumption of Innocence According to Article 27 of Constitution, the defendant is not considered guilty until the definitive conviction (guilty verdict). Despite the different expression of the Italian language from Article 6, para 2 of the ECHR (‘2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’), the result is the same. The presumption of innocence imbues the whole proceeding. See the pre-trial custody: before conviction, the freedom of the defendant can be limited only in exceptional cases (for example when there is a founded basis about the crime committed by the defendant, CCP, Article 273, plus the danger that he or she may escape, CCP, Article 274). See, also, the standard of evidence: as in the United States, according to CCP, Article 533 the culpability of the defendant must be proved ‘beyond any reasonable doubt’ (CCP, Article 533 was so modified in 2006) and to this end Public Prosecutor has to collect charge and discharge evidence. See, as well, the right to silence and the privilege against self-incrimination, that leave the defendant free to cooperate or to not cooperate in any way with the Public Prosecutor’s investigation. During the proceedings the defendant must be considered innocent until the conviction; he/she should be free, unless serious and urgent reasons suggest the opposite. The burden of proof lies on the Public Prosecutor. The defendant need only refute the evidence against him/her. He/she is not obliged to provide exculpatory evidence, nor to tell anything about the charge. The judge must acquit unless the Public Prosecutor proves beyond any reasonable doubt the defendant’s guilt. This is the law. In action, unfortunately, Italian proceedings still follows the old and opposite mentality of the French Napoleonic tradition: pre-trial custody is very frequent for serious cases (the phenomenon of the detenuti in attesa di giudizio,) and a defendant who doesn’t answer the Public Prosecutor’s questions is often suspected to be guilty.

2. The Right to Legal Assistance According to Article 24, para 2 of the Constitution, the right to defence is inviolable at every stage of the proceeding (la difesa è diritto inviolabile in ogni stato e grado del procedimento). The defendant must always have a lawyer: also a lawyer, accused of a crime, must have a defence lawyer. The presence of a lawyer is mandatory. That being so, it is important to distinguish two different situations. If the defendant doesn’t have sufficient money to pay a lawyer, he/she can ask for legal aid (patrocinio a spese dello Stato: see Decree of President of the Republic of 30 May 2002, No 115, Article 74 ff): this means the lawyer, who can be appointed from a list prepared by the Bar Council, will be paid by the state. To be admitted to legal aid a defendant must demonstrate a very low income (not more than 9,296.22 EUR in a year65). Different is the case of the difensore d’ufficio, which can be translated as ‘public defender’, but only if the underlying reality is clear: when the defendant doesn’t appoint a lawyer (for example simply because he/she doesn’t know one) the autorità giudiziaria (Public

65

Art 76 Decree of President of Republic No 633 of 1972 (n 9).

398 Italy Prosecutor or judge66) must appoint one, chosen from a list of lawyers, prepared by the Bar Council (CCP, Article 97). The defendant must regularly pay his/her public defender (CCP, Article 97). The person being investigated, as well as the defendant, can at any time appoint a ‘trust’ lawyer, who immediately replaces the public defender: CCP, Article 97, para 6. It is possible for a defendant to be admitted to legal aid and to be appointed a public defender, but it is important to keep clear we are discussing of two different aspects. As soon as the Public Prosecutor or the police perform any act which implies the presence of the defence (for example, a search), they must inform the person being investigated of the right to legal assistance, with a so-called ‘letter of rights’ (informazione di garanzia: CCP, Articles 369 and 369-bis). Normally, non-compliance with this right, that is to say the absence of a lawyer when his or her presence is mandatory, forbids the Public Prosecutor or police from carrying out their activity. Nevertheless, if it is carried out, such activity is nullified (nullità, CCP, Article 178, lit c)) and normally the activity must be repeat. (a) Confidentiality of Investigation and Defendant’s Right to be Informed About the Charges To exercise his or her right of defence, the accused person must clearly know the charge against him or her. This is not always possible from the start of the pre-trial phase. In fact, normally the police and Public Prosecutor carry on all the acts of the investigation in secret: the so-called ‘confidentiality of investigations’ (segreto istruttorio), CCP, Article 329. However, there are many ways a person can be informed of the charges during the procedure against him or her. The first way to be informed of the charges is when the Public Prosecutor or police carry out an act from which it is inferred a process is pending. For example: if the person is searched, or if his/her house is searched (and he/she is present), the Public Prosecutor or the police give him or her a copy of the order or warrant on the basis of which they are proceeding, together with the ‘letter of rights’ (informazione di garanzia). The order or the warrant usually contain a very brief reference to the relevant Articles of the Criminal Code (CC) and, often, a reference to time and place of the facts. A second and wider way is when the person is questioned: he or she must be informed, clearly and precisely, about the charges, and even the evidence must be partially revealed (CCP, Article 65). These two cases belong to the category of acts, to carry on which, Police or Public Prosecutor must inform the lawyer of the defendant: they are called ‘guaranteed acts’ (atti garantiti). After their realisation, the secretariat of the Public Prosecutor must make those acts (and only those acts) available to the lawyer (CCP, Article 366), and he or she can consult them. The rule which requires ‘guaranteed acts’ to be available to the lawyer has only one possible exception: the Public Prosecutor can, ‘on serious grounds’ (per gravi motivi) delay for no more than 30 days that availability: CCP, Article 366, para 2. If the acts are not made available to the lawyer, the consequence is that every faculty, deriving from the knowledge of the acts, will rise at the time of the subsequent and actual knowledge.

66

On the meaning of the expression autorità giudiziaria see above, n 14.

Status and Rights of the ‘Accused’ 399 The third way to be informed of the charges is when the investigation phase finishes: at the end of the preliminary phase (but still before the indictment) the Public Prosecutor must make all the acts of the investigation available to the lawyer (discovery), who can consult them, and notify the person being investigated of an act with the preliminary and provisional charge: CCP, Articles 415-bis and 416, para 2. This is the generalised discovery at the end of the pre-trial phase. The discovery at the end of the pre-trial investigations is always compulsory. What happens if the Public Prosecutor, at the end of the pre-trial phase, makes available to the lawyer only a part of the acts of the investigation? Jurisprudence says there is no invalidity: only those acts cannot be used by the judge in order to decide whether there are enough reasons to celebrate the trial or not.67 Recently the Constitutional Court said there is no invalidity if the dossier of the pre-trial phase is too messy.68 In conclusion, during the investigations general rule is for the confidentiality; during the trial general rule is for the public nature and for the knowability of all the relevant legal acts. It is possible, however, that no revealing act is made and, nevertheless, the person perceived a ‘rumor’ that something—in the criminal justice system—is moving against him/ her. In this case, a person who thinks he or she may be subject to investigations, can make a query to the ‘Record of the notifications of crimes’ (registro delle notizie di reato: Article 335 CCP) in order to know if there has been a notification of a crime against him or her. There is a restriction to the query to the ‘Record of the notifications of crimes’: the Public Prosecutor must normally answer such a query, but with two exceptions. The first concerns a number of serious offences, related to organised crime. The second exception works as follows: if the Public Prosecutor has to make some investigations, which an answer to the query could eventually compromise, he can withhold the answer, but for no longer than three months. This decision is reasoned, but there is no judicial review (Article 335, para 3 and 3-bis CCP). There is no more room for secrecy when the Public Prosecutor prosecutes the person with the indictment, which is always and unfailingly brought to the attention of the defendant. At the trial the charge is public and every modification must alike be disclosed and announced. During the trial, discovery is automatic and parties are not allowed to bring to the judge evidence not brought to the attention of the other parties (prove a sorpresa). For example, the party who wants a witness to be heard during the trial, must submit the name of the witness to the judge, including the circumstances on which the witness must be heard, seven days before the hearing, in order to let the other parties know the request and make their rebuttals. What if during the trial one party presents ‘surprise evidence’ and the other party is not admitted to rebuttal by the judge? The right to provide evidence to the contrary is very important and is protected by the possibility to present a specific reason of appeal to the Supreme Court: CCP, Article 606, lit d).

67 68

In this sense, see, for example, Cass, sez I, 15 January 2010, no 19511. Sent no 142 of 2009.

400 Italy Until now, we’ve been talking about the so-called internal secret, which is addressed to the parties of the proceeding, that is to say, mainly the person being investigated (or the defendant) and the victim, as well as their lawyers (CCP, Article 329). There is also an external secret: even when the internal secret has been lifted, for example because investigations ended with the indictment, and parties have made copies of the file, this doesn’t mean the external secret has been lifted as well. The external secret is addressed to everybody who neither took part to the proceeding nor had the right to: that is to say, the collectivity. For the collectivity, the external secret, regarding the investigations, is going to be lifted much later: at the end of the trial, CCP, Article 114, para 2 and 3. We must admit, however, this provision is one of the most often violated. Daily we can read in newspaper and hear on the television about investigations, acts and measures, even during the pre-trial phase. The distinction between law in the books and law in action couldn’t be, unluckily, more strident. The problem regarding the consequences of not respecting the right of the accused to know the charge against him/her is complex. If orders or warrants, which must contain a brief description of the charge, don’t contain such a description, the consequence should be the nullity (nullità) of the act.69 If the person is questioned with no previous disclosure of the charge (in violation, therefore, of Article 65 CCP), there is a clear violation of his/her right to defence and the interrogation is affected by nullity (CCP, Article 178, lit c)). Finally, if the charge in the indictment is not described in a clear and precise way, the consequence is, once again, nullity: see, for example, CCP, Article 429, para 2 and Article 552, para 2. (b) Access to the File During Pre-Trial Proceedings: the Pre-Trial Discovery The investigation, as just said, is secret. The person being investigated and his/her lawyer have a right of access to the whole dossier of the investigation, but only at the end of the investigation, before the indictment; during the pre-trial investigations, only partial discovery is possible. During the investigation, the person being investigated and his/her lawyer, who can be notified about the proceeding with the letter of rights (informazione di garanzia), can also obtain partial access to the dossier, particularly: — —

in case of search and seizure they obtain a copy, but only of the act ordering the search and the seizure and of the report (verbale) of the operations carried out; in case of pre-trial custody, when the judge of freedom orders a measure that limits the freedom of the defendant. In such an eventuality, the lawyer has access to the dossier that the Public Prosecutor gave the judge to justify his/her request for the pre-trial custody.

Note that if the Public Prosecutor, at the end of the investigation phase, asks for the dismissal of the case, the person being investigated normally knows nothing about it (he/she

69 See the acceptable point of view of Cass pen, sez VI, 22 of September of 2005, No 998, in a case regarding a seizure.

Status and Rights of the ‘Accused’ 401 is aware of the proceeding only, for example, if there has been a pre-trial custody, a search or a seizure, a questioning, etc). Only if the victim opposes a request of dismissal (opposizione all’archiviazione), or the judge of freedom believes it necessary in every case to hold a hearing with the presence of the victim and the person being investigated, can the latter, as well as the victim, have access to the dossier.70 After the investigation is closed: —

access to the dossier of pre-trial investigation is fully granted, if the Public Prosecutor prosecutes with the indictment (esercizio dell’azione penale); — the access is complete too, if the Public Prosecutor asks for the dismissal and the victim opposes this.

If the Public Prosecutor doesn’t allow access to the complete dossier when he decides to prosecute, the indictment—and all the successive proceedings too—should be considered invalid. Nevertheless, jurisprudence tries often to offer alternative interpretations, oriented to the preservation of what has been done. For example, according to recent jurisprudence, if the Public Prosecutor, at the end of the pre-trial phase, makes available to the lawyer only a part of the acts of the investigation, there would be no invalidity: only, those acts shouldn’t be used by the judge in order to decide whether there are enough reasons to celebrate the trial or not. Other ways a person can become aware of a proceeding are through the query to the ‘Record of the notifications of crimes’, or if during the preliminary investigations a measure is carried out, which require the presence of the lawyer (CCP, Article 366, para 2).71 Copies can be made which the lawyer can send to the client (person being investigated or victim), but only to him/her. (c) The Right of the Defence to Undertake Investigative Measures/Acts in their Own Right It is only since 2000 (Law No 397 of 7 December) that defence lawyers can carry out own investigation, according to CCP, Article 391-bis 391-decies. Even with the new Code of Criminal Procedure of 1989, defence lawyers were substantially forbidden to investigate and to contact or to speak with a future witness, since it could be a disciplinary violation. Since 2000 a lawyer (of the defendant as well of the victim) can question witnesses and co-defendants; if he/she decides to record the examination, he/she has to record every question and answer completely (CCP, Article 391-bis and -ter). The lawyer can request public administrations to send documents at their disposal (and in the case of no answer, the lawyer can request the Public Prosecutor to compel an answer: CCP, Article 391-quater); he/she can access to places relevant for the crime (with the authorisation of the judge of freedom, if the place isn’t public: CCP, Article 391-sexies and -septies): he/she can question expert witnesses, and so on. The lawyer can also investigate ‘in advance’, that is to say, when a proceeding is not yet open, but there is such a possibility; in these cases, he/she needs a special written power, ie

70 71

On the role of the victim, see section C2(a). For both, see above, section E2(a).

402 Italy not the simple appointment, which is normally sufficient, but the indication of the issue for the future criminal proceeding. To conclude, the investigation of the defence is potentially very powerful in the books. In the action, however, the old tradition that saw ‘passive’ lawyers is still prevalent and, especially in the south of Italy, where organised crime is still strong, only a few of them dare to carry out their own investigations. (d) The Right to Ask for a Special Act of Investigation In principle, since 2001 neither the defendant nor the victim need to ask the Public Prosecutor for a special act of investigation, since they can carry out investigations by themselves, through their lawyers. However, there are some acts of investigation which cannot be carried out by the defendant or by the victim, being reserved only to a public power: for example, wiretapping or a search and seizure. Moreover, even when the defendant or victim could carry out by themselves an act of investigation, they are logically not compelled to, and they can always ask the Public Prosecutor to do so.Except in two cases, however, the Public Prosecutor has no obligation to proceed to the act of investigation requested. This first case is provided by CCP, Article 391-bis, para 10: when the lawyer has tried to question a person being informed of facts, but this person decided not to answer (as is his or her right), the lawyer can ask the Public Prosecutor to summons that person.72 The Public Prosecutor, if the request of the lawyer is reasoned and detailed, must then do so.73 In the presence of the Public Prosecutor, that person shall answer to the questions of the lawyer. The second instance is provided by CCP, Article 415-bis: before the indictment, the Public Prosecutor is compelled to discover all his/her pre-trial investigations and ask the defendant and his/her lawyer if they consider some more investigation act is needed.74 The defendant can ask for seizure, for a search or for something else; if he/she asks to be questioned, the Public Prosecutor, unlike in the other cases, must question him/her. If he/ she doesn’t carry out the questioning (interrogatorio),75 the charge can be invalidated: CCP, Article 416, para 1. In other cases (CCP, Article 391-quater, para 3, Article 415-bis, para 4, Article 368), the Public Prosecutor can—not must—proceed to the act requested. The fact that the Public Prosecutor has no obligation to proceed to the act of investigation asked by the party, together with the other fact that the Public Prosecutor is supposed to be the natural opponent of the defendant, lead to the conclusion that the possibility to ask for an investigation act is quite rare.

72

On investigation of the lawyer, see above, section E2(c). See Cass, sez II, 23 November 2010, no 40232. 74 On CCP, Art 415-bis, which set the discovery at the end of the pre-trial investigations; see above, section E2(a). 75 On questioning, see above, section B11. 73

Status and Rights of the ‘Accused’ 403 3. The Right to an Interpreter The Italian legal system provides for the right to an interpreter. Reference is to CCP, Article 143 ff: a defendant who doesn’t understand the Italian language can apply for an interpreter, in order to be able to understand the charges against him/her and to participate knowingly to the procedure. CCP, Article 143, para 1 says expressly that the right to apply for an interpreter is free for the defendant. The defendant also has the right to a written translation: in these cases, says CCP, Article 147, the interpreter can ask for and obtain a time for the translation of the acts he is requested to translate. An important ruling of the Constitutional Court must be mentioned: in judgment No 254 of 6 July 2007, the Constitutional Court said that foreigners, who don’t speak Italian and are admitted for legal aid, can apply for an interpreter: Article 102 of the Decree of the President of the Republic No 115 of 2002. CCP, Article 144 specifies who cannot be an interpreter: for example, minors or mentally ill persons, persons banned from public offices, etc. See, however, mentioned CCP, Article 144 for the complete list.

4. The Right to Submit Written Statements and to Require a Precise Wording of One’s Statements A person accused of a crime can directly contribute to the investigations or to the trial, by submitting written statements. During the pre-trial investigations, the lawyer (whose presence is, anyway, compulsory) can at any time submit written statements (memorie) and requests (richieste) to the Public Prosecutor (CCP, Article 367).76 Similarly, whenever they wish, parties (not only the defendant) can submit to the judge (during the pre-trial phase or even at the trial) written statements (memorie) and requests (richieste). The judge has an obligation to answer within 15 days, if a shorter time is not provided (CCP, Article 121). According to CCP, Article 482, during the trial parties also have the right to put into the record every statement they make. Finally, CCP, Article 494 allows the defendant to make ‘spontaneous statements’ (dichiarazioni spontanee) during the trial, whenever he or she wants so. These oral statements will be put into the record (CCP, Article 494, para 2).77

76 The possibility for the lawyers to submit written statements to the Public Prosecutor is expressly admitted during the pre-trial phase (see CCP, Art 367), but it must be said that the Public Prosecutor accepts always with no problem written statements, even in the trial or during the appeal. No restrictions are set regarding the content or the aim of the written statements; on the other hand, the Public Prosecutor is not compelled to answer to the statement. 77 The right of the parties to put into the trial record their statements has two limits: ‘within the limits strictly necessary’ (entro i limiti strettamente necessari), and ‘unless the statement is against the law’ (purché non contraria alla legge): CCP, Art 482. When the defendant is making his or her oral and spontaneous statements, on the ground of CCP, Art 494, he or she cannot be interrupted or silenced, unless his or her statements are not relevant or too long.

404 Italy Persons being investigated are not informed of the possibility of submitting written statements, granted by Article 367 and 121 CCP, nor of the possibility to put into the trial record a statement, granted by CCP, Article 482: this is because such rights will be well known by their lawyers (whose presence is compulsory). The defendant is informed of his/ her right to make spontaneous statements by the judge at the beginning of the trial (CCP, Article 494). If a party ask to enter a statement into the trial record (CCP, Article 482) and the judge denies this right, the judge him or herself commits a crime. This is a purely theoretical hypothesis. If the defendant wishes to make spontaneous statements (CCP, Article 494) and the judge denies this right (once again, it is unlikely to happen), it could produce a ‘nullity’ (nullità) of the proceeding, on the ground of CCP, Article 178, lit c). Vice versa, if the judge does not inform the defendant of this right, nothing really happens, because the defendant has a lawyer who can at every time remind him or her of this right.78

78

See Cass, sez V, 28 September 2004, no 45416.

11 Lithuania GINTARAS ŠVEDAS AND REMIGIJUS MERKEVICˇIUS

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

L

ITHUANIAN CRIMINAL PROCEDURE is divided into the process phases. All process phases are either mandatory (which are necessary for criminal procedure, eg pre-trial investigation, court trial) or optional (appeal and cassation procedure, etc). Pre-trial investigation is the first phase of the criminal procedure in Lithuania. Pre-trial investigation starts from the date of opening a pre-trial investigation and ends with the transfer of the indictment, or any other final procedural act to the court.1 The main tasks of the pre-trial investigation are to: a) promptly and properly identify all the circumstances of the criminal act; b) identify the person who committed criminal act; c) enable a proper examination of the case in the court; d) take necessary measures to ensure for the participants in criminal proceedings the right to damages and other rights. When these challenges are being fulfilled, the pre-trial investigation has to be completed, and criminal procedure passes to the second phase: trial in the court of the first instance. Preparation of an indictment (the traditional function of the prosecutor) is not considered as a separate and independent phase of a criminal process, and it is an integral part of the pre-trial investigation. The prosecutor chooses the moment of the indictment. The prosecutor, in organising, leading or conducting the pre-trial investigation actions himself, has to determine when the tasks of the pre-trial investigation are fulfilled. Such decision is made by the prosecutor only when he considers that the circumstances of the committed criminal act are identified, there is no more need of any pre-trial actions and it is clear that the trial court will be able to prove the guilt of the suspect.2 The second major stage of criminal procedure is the criminal proceedings before the court of first instance. This is the procedural stage of activity, starting from the receipt of a criminal case in the court and ending with the adoption and publication of final procedural act of the court (normally the court’s judgment, and sometimes its ruling). At this stage the main features of procedure—prosecution, defence and a final procedural decision-making act (resolving cases substantially) are fully realised. The third

1

G Goda, M Kazlauskas, P Kuconis, Baudžiamojo proceso teise˙ (Vilnius, Teisine˙s informacijos centras, 2005)

288. 2

Ibid 343.

406

Lithuania

major phase of criminal procedure is the execution of the judgment or ruling that came into effect. In this phase of the procedure the court executes the judgment itself (eg the acquittal judgment, etc), or passes the judgment to be executed by penal institutions. Optional phases of the procedure—the process in the court of appeal, the process in the court of cassation and the phase of resurrection of criminal procedure. The appeal process is a control stage of criminal proceedings arising after the examination of criminal cases at first instance. This phase of procedure occurs only if the participants in criminal proceedings or the prosecutor appeals the judgment or ruling of the first instance court, and ends after the court of appeal instance adopts and declares a judgment or ruling. The main purpose of an appeal is to check the legality and feasibility of the judgment or ruling of the first instance court, and if necessary to correct its errors. The cassation process is the phase of criminal procedure, in which under the cassation appeal of the participants in criminal proceedings or the prosecutor, the judgment or ruling (that came into effect) is verified as to aspects of law only. Proceedings of cassation form the uniform case law interpreting and applying laws and other legal acts. The resurrection of criminal proceedings provides an opportunity for some exceptional cases to verify the legality and legitimacy of the final court judgment or ruling. Criminal proceedings may be resurrected on the newly emerged circumstances, for clearly improper use of the Criminal Code3 and for the decisions of the UN Committee on Human Rights or the ECtHR. In addition, it is necessary to bear in mind that the Law on Operational Activities4 provides for the possibility of operational investigation of a criminal act before pretrial investigation. An operational investigation shall be conducted, when: 1) information is held with respect to a less-serious, serious or very serious crime (eg infanticide; threatening to murder; unlawful deprivation of liberty; sexual assault; sexual abuse; use of a child pornography; aggravating theft; robbery; extortion of property; etc) being planned, being committed or having been committed, or with respect to a person preparing, committing or having already committed a crime; 2) the suspect, the accused, the defendant or the convicted person goes into hiding; 3) a person goes missing without trace, etc. Operational investigation means the use of technical equipment, methods of operational activity, mode of conduct simulating a criminal act or controlled delivery, etc.

2. Sources of Criminal Procedural Law According to the legal tradition of continental Europe (jus civile), Lithuania’s main source of criminal procedural law is its Constitution.5 The most significant rules of criminal procedure are contained in the codified law—the CCP.6 The CCP does not regulate all procedural legal relationships. Certain provisions of the criminal procedural law are contained in other legal acts of the Republic of Lithuania, which regulate the legal status of the institutions and individuals, which implement the procedural functions (eg Law of Courts, Law 3 4 5 6

Baudžiamasis kodeksas, Valstybe˙s žinios, 2000, Nr 89-2741. Operatyvine˙s veiklos ˛i statymas, Valstybe˙s žinios, 2002, Nr 65-2633. Lietuvos Respublikos Konstitucija (Vilnius, 2005). Baudžiamojo proceso kodeksas, Valstybe˙s žinios, 2002, Nr 73-3084.

General Aspects of the Procedure 407 of Police Activities, Law on the Bar, Law of Prosecution, etc)7 or some other relationships which are related to criminal procedure (eg Law on Electronic Communications, Code of Civil Procedure, Civil Code,8 etc). Moreover, the collection and use of evidential information in criminal procedure are regulated by the above-mentioned Law on Operational Activities. International treaties (eg treaties that involve fundamental human rights standards or rules providing international cooperation) are recognised as being of especial significance as a source of law of criminal procedure, together with their interpretation as set out in international jurisprudence (ECtHR). International treaties ratified by the Seimas (Lithuanian Parliament) and the norms of EU law are constituent part of the legal system of the Republic of Lithuania. If a matter touches upon those international treaties which are ratified by the Seimas, or treaties upon which the EU is based, the norms of the international treaties or EU law shall be applied directly, while in case of conflict of legal norms, the former shall enjoy supremacy over the laws and other legal acts of the Republic of Lithuania.9 However, Lithuanian constitutional jurisprudence has taken the position that in criminal law, such a way of resolving the conflict does not apply directly.10 There is compliance with the provision that only the criminal laws of the Republic of Lithuania are applicable directly, and international treaties apply only to the specific cases provided by these laws. However, there are established identical legal provisions that ensure human rights protection in the CCP as in international treaties including, inter alia, the ECHR. The Supreme Court of Lithuania in its written decisions often makes direct reference to particular decisions of the ECtHR. On the other hand, the constitutional jurisprudence recognises that if the application of criminal law creates uncertainty for the assurance of human rights and fundamental freedoms, as it is declared in international treaties, the question of whether national law is in compliance with the Constitution, should be resolved by maintenance of constitutional order. The theory of Lithuanian criminal procedure recognises even more sources of law of criminal procedure—government decrees, the Justice and Interior Ministries’ orders, which regulate a number of organisational issues, or procedures of separate proceedings. The Prosecutor General’s recommendations are an autonomous source of law of criminal procedure. They regulate the proceedings of various procedures (eg the granting of anonymity to the witness, etc), the format of the procedural documents (eg recommendations on drawing up the indictment, etc), and the principles of organisation of the pre-trial investigation (eg the prosecutor’s role in organising and leading the pre-trial investigation, etc). Judicial precedent is recognised as a source of law in the jurisprudence of Lithuania’s Constitutional Court and Supreme Court.11 The decisions of the Supreme Court of 7 Teismu˛ ˛ i statymas, Valstybe˙s žinios, 2008, Nr 81-3186; Prokuratu¯ros ˛i statymas, Valstybe˙s žinios, 2003, Nr 42-1919; Policijos veiklos ˛i statymas, Valstybe˙s žinios, 2000, Nr 90-2777; Advokatu¯ros ˛i statymas, Valstybe˙s žinios, 2004, Nr 50-1632. 8 Elektroniniu˛ ryšiu˛ ˛ i statymas, Valstybe˙s žinios, 2004, Nr 69-2382; Civilinis kodeksas, Valstybe˙s žinios, 2000, Nr 74-2262; Civilinio proceso kodeksas, Valstybe˙s žinios, 2002, Nr 36-1340. 9 Lietuvos Respublikos Konstitucija (n 5) 208. 10 Konstitucinio Teismo 1995 m sausio 24 d išvada, ‘De˙l Europos žmogaus teisiu˛ ir pagrindiniu˛ laisviu˛ apsaugos konvencijos ir Ketvirtojo protokolo atskiru˛ straipsniu˛ atitikties Konstitucijai’, Valstybe˙s žinios, 1995, Nr 9-199. 11 Konstitucinio Teismo 2006 m kovo 28 d nutarimas, ‘De˙l Konstitucinio Teismo ˛ i statymo ir Teismu˛ ˛i statymo atskiru˛ straipsniu˛ atitikties Konstitucijai’, Valstybe˙s žinios, 2006, Nr 36-1292.

408

Lithuania

Lithuania, as the highest judicial instance and court of cassation, in which the content of law perception (interpretation) is set out, are recognised as unequivocally binding on all the other common law courts (including the Supreme Court of Lithuania itself) in their procedural decision-making in relevant categories of cases. However, the judges of higher instance courts of general jurisdiction may not intervene in the issues in specific cases of lower instance courts of general jurisdiction, nor may they provide them with any mandatory instructions or guidance on how those cases should proceed.

3. Bodies Carrying Out Investigation and Prosecution CCP, Article 164 states that pre-trial investigation shall be conducted by officers of pretrial investigation institutions. Pre-trial investigation shall be organised and led by a prosecutor. CCP, Article 160 prescribes that the main pre-trial investigation institution is the police. The other specialised pre-trial investigation institutions are the State Border Guard Service, the Special Investigations Service, the Military Police, State Security Department, the Financial Crimes Investigations Service, the State Fire Prevention Service, and the Customs, in respect of criminal acts which come to their notice when discharging the primary functions provided for in the laws regulating their activities. The division of responsibilities among all pre-trial investigation institutions is prescribed in laws and Prosecutor General Recommendation on distribution of the pre-trial investigation of criminal acts between pre-trial investigation authorities12 establishing the lists of criminal acts, for which concrete institution is responsible for pre-trial investigation. CCP, Article 171 stipulates special rules for case allocation and jurisdiction. Upon receiving from pre-trial investigation authorities a notification of the start of pre-trial investigation, the prosecutor shall determine who must conduct the investigation. The prosecutor may make a decision: 1) to conduct the entire pre-trial investigation or perform its separate actions by himself; 2) to instruct the pre-trial investigation institution which notified him about the pre-trial investigation it commenced to perform the actions of a pre-trial investigation; or 3) to instruct another pre-trial investigation institution to conduct the pre-trial investigation. The prosecutor shall have the right to form an investigating group of several officers of the same pre-trial investigation institution or of officers from different pre-trial investigation institutions. The Prosecution Office (prokuratura) is responsible for prosecution in the Lithuanian legal system. Article 118 of the Constitution prescribes that only the prosecutor shall prosecute criminal cases on behalf of the State, shall carry out pre-trial investigation, and shall supervise the activities of pre-trial investigators and institutions. These constitutional provisions are more explicitly laid down in the Law on the Prosecution Office,13 which prescribes that prosecutors shall: 1) organise and lead pre-trial investigations;14

12 Generalinio prokuroro rekomendacija, ‘De˙l nusikalstamu˛ veiku˛ tyrimo paskirstymo ikiteisminio tyrimo ˛i staigoms’, Valstybe˙s žinios, 2008, Nr 94-3712. 13 Prokuratu ¯ ros ˛istatymas, Valstybe˙s žinios, 2003, Nr 42-1919. 14 The Prosecutor General has adopted a methodological recommendations on this issue: Generalinio prokuroro ˛i sakymas, ‘De˙l Rekomendacijos de˙l prokuroro veiklos organizuojant ikiteismini˛ tyrima˛ ir jam vadovaujant’, Valstybe˙s žinios, 2008, Nr 72-2783.

General Aspects of the Procedure 409 2) conduct pre-trial investigations or separate investigative actions; 3) control the procedural and operational activities of the pre-trial investigative bodies; 4) sustain a criminal charge before the court; 5) supervise the execution of judgments; 6) coordinate the activities of pre-trial investigative bodies; etc.15 The competence of the Prosecution Office regarding rationi loci is determined by the territorial structure of the Prosecution Office, ie its hierarchy consists of a lowest tier (district prosecution offices), higher tier (five regional prosecution offices) and the Office of the Prosecutor General. Each district prosecution office operates in the territory prescribed by law; a regional prosecution office controls the activities of a number of district prosecution offices and conducts criminal prosecution of the most serious crimes. The Office of the Prosecutor General supervises the activities of both district and regional prosecution offices and conducts criminal prosecution in a limited number of highly complicated or serious (eg organised crime) cases. The CCP and some other laws provide for exclusive competence ratione materiae of the Prosecutor General—only the Prosecutor General may commence pre-trial investigation and criminal prosecution if the criminal act was committed by a member of the Seimas or Government, or by a judge, a judge of the Constitutional Court, a prosecutor, etc. The legal system of the Republic of Lithuania grants the victim powers to prosecute in the case of 11 criminal acts (these include negligent minor harm to health (CC, Article 139), beating or minor harm to health (CC, Article 140), sexual harassment (CC, Article 152), slander (CC, Article 154), etc). The CCP establishes the definitive list of criminal acts belonging to the category of private indictment cases. According to these provisions, criminal proceedings can be instituted only after a complaint lodged by the victim of a criminal act, or his legal representative. But even in these cases the prosecutor can join the prosecution started by the victim or in certain circumstances commence prosecution by itself in the event of, eg, the feeble state of the victim, or the victim’s dependency upon the offender, etc. The Constitutional Court has noted that: [I]t is to be noted that the legislator has discretion to establish that for certain criminal deeds the person is held liable only in the case when there is an application of the victim (or his representative) concerning the corresponding criminal deed, and that in such cases the pre-trial investigation is not carried out and the prosecutor does not uphold charges on behalf of the state in court.16

Following the legal tradition of the continental European countries (eg Germany), the prosecutor in Lithuania is a full ‘owner’ of the pre-trial investigation. The prosecutor remains an active participant during the whole pre-trial investigation. The following decisions in the pre-trial investigation may be issued only by the prosecutor: 1) on the joinder and separation of the investigation; 2) on a temporary stay of the proceeding; 3) on the discontinuation of the proceeding; and 4) on the termination of the proceeding by drawing up the indictment. Only the prosecutor may make an application to the pre-trial judge in respect of the conduct of steps within his competence.

15 For some critical aspects on Lithuania’s prosecution system see Reinforcement of the rule of law: final report on the first part of the project/Phare Horizontal Programme on Justice and Home Affairs (Nijmegen, Wolf Legal Productions, 2002). 16 Konstitucinio Teismo 2006 m birželio 15 d Nutarimas, ‘De˙l Baudžiamojo Kodekso kai kuriu˛ straipsniu˛ atitikimo Konstitucijai’, Valstybe˙s žinios, 2006, Nr 68-2514.

410

Lithuania

The prosecutor shall give mandatory instructions to the pre-trial investigators, rescinding their unlawful or unfounded resolutions. Where the pre-trial investigation or its separate actions are conducted by pre-trial investigators, the prosecutor shall be obliged to supervise the course of the pre-trial investigation. Reviewing (controlling) the pre-trial investigation, the prosecutor has the right to specify when the pre-trial investigator must present him with the material of the criminal case. The prosecutor also has the right to order pre-trial investigation period, to which the pre-trial investigation must be completed, or the date on which the pre-trial investigator must submit a short written report about the actions of pre-trial investigation it carried out, or to attend the discussion on the pre-trial investigation. The pre-trial investigator also must present to the prosecutor the material of the criminal case, if there are no suspects in the case after two months (or another period specified by the prosecutor) from the start of the pre-trial investigation. The prosecutor must be informed separately when the pre-trial investigator submits a suspicion notice for the suspect. On the conclusion of all the actions of the pre-trial investigation (or when pre-trial investigation was completed), the pre-trial investigator must transmit the criminal case file to the prosecutor. Upon receipt of this information the prosecutor then decides either: a) to close the criminal case, or b) to acknowledge that there are grounds and to prepare the indictment.

4. Threshold for Initiating Investigation and Prosecution and the Legality Principle CCP, Article 166 specifies that any [P]re-trial investigation shall be commenced: 1) upon receipt of a complaint, application or report about a criminal act; 2) upon establishing elements of a criminal act and drawing up of an official notice by a prosecutor or a pre-trial investigator.

CCP, Article 168 provides that following the receipt of a complaint, an application or a report, and, where necessary, its updated version, the prosecutor or the pre-trial investigator may refuse to commence pre-trial investigation only where the facts stated in the complaint, application or the report about the criminal act are obviously disinterested, or the circumstances, which are established in the law of criminal procedure and make criminal procedure unavailable, are clear. The Prosecutor General’s recommendations17 state that when details about criminal acts for the start and registration procedure of the pre-trial investigation are clearly incorrect; or when there is no need to perform a pre-trial investigation in establishing the reliability of the facts presented by the applicant’s complaint, report or statement, because these facts are apparently uncertain; or if the applicant’s complaint, report or statement indicates the features of activity which the applicant treats wrongly as criminal activity, or indicates the offence, which does not have all the necessary features of a criminal act; or the contents of declaratory statements are based only on reasoning or assumptions, the decision should be to refuse to start the pre-trial investigation.

17

Generalinio prokuroro ˛i sakymu patvirtinta rekomendacija, Valstybe˙s žinios, 2008, Nr 94-3713.

General Aspects of the Procedure 411 The theorists of Lithuanian criminal procedure18 separately do not discuss, what level or degree of suspicion is necessary to initiate the pre-trial investigation. Academic commentators indicate that to start the pre-trial investigation, it is sufficient to have a minimum or initial suspicion of a possible criminal act. CCP, Article 218 states that where the prosecutor is satisfied that sufficient information has been gathered during the pre-trial investigation in evidence of the culpability of the suspect for committing a criminal act, he shall notify the suspect, his defence counsel, the victim, the plaintiff and the defendant in any related civil action and their representatives of the conclusion of the pre-trial investigation and shall draft the indictment. The doctrine of Lithuanian criminal procedure19 addresses in particular the level or degree of suspicion necessary to draw up an indictment. In general evaluating the CCP, it follows that to draw up an indictment it is necessary for there to be a very strong suspicion, which combines the subjective conviction of the prosecutor, that the case against the accused is valid and reliable, and the objective probability that a person before a court and under the indictment will be convicted and sentenced. The legality principle applies for pre-trial investigation and prosecution in Lithuania. This conclusion may be inferred from the CCP, Articles 1 and 2.20 According to CCP, Article 1: [T]he criminal procedure aims at a speedy and detailed detection of criminal acts and a proper application of the law in order to ensure that any person who has committed a criminal act is given a fair punishment and that no one who is innocent is convicted.

CCP, Article 2 states that a prosecutor and pre-trial investigator must institute criminal proceedings in every case in which the elements of a criminal act come to light, and shall take all measures to conduct, as soon as possible, pre-trial investigation to disclose the criminal act. The legality principle in Lithuania’s criminal justice system means that pre-trial investigators and prosecutors must react to all information concerning the commission of criminal acts, and must adopt all necessary pre-trial investigative decisions and conduct all necessary pre-trial investigative actions for the detection of criminal acts.21 It must be noted that in the Lithuanian theory of criminal procedure the principle of legality was criticised, especially in cases when pre-trial investigation of minor crimes involves application of expensive pre-trial investigative actions, eg European Arrest Warrant (EAW), etc.22

18 Eg G Bucˇiu ¯nas, E Gruodyte˙, Ikiteisminis tyrimas: procesiniai, kriminalistiniai ir praktiniai aspektai (Vilnius, Registru˛ centras, 2009); G Goda, Lietuvos Respublikos baudžiamojo proceso kodekso komentaras I dalis (Vilnius, Teisines Informacijos Centras, 2003); Goda, Kazlauskas, Kuconis (n 1); etc. 19 Eg Bucˇiu ¯nas, Gruodyte˙ (n 18); Goda (n 18); Goda, Kazlauskas, Kuconis (n 1); etc. 20 Goda (n18) 13. 21 Goda, Kazlauskas, Kuconis (n 1) 67. 22 A Cˇ epas, G Švedas, Tarptautine ˙ teismine˙ pagalba baudžiamosiose bylose. Asmenu˛, ˛itariamu˛ padarius nusikalstama˛ veika˛, išdavimas baudžiamajam persekiojimui (ekstradicija, perdavimas Tarptautiniam baudžiamajam teismui arba pagal Europos arešto orderi˛) (Vilnius, Teisine˙s informacijos centras, 2008) 88–90.

412

Lithuania B. INVESTIGATION MEASURES

1. The Status of the Accused/Defendant; Formal Designation as a Suspect CCP, Article 21 states that: [A] person detained on suspicion of having committed a criminal act or a person questioned about a criminal act he has committed, or a person for whom was drawn … a suspicion notice, summoned for questioning shall be held a suspect.

The suspect is a participant of pre-trial investigation. Lithuanian criminal procedure23 is that a ‘person must be recognised as a suspect if there are facts which justify the minimal possibility that person commited a criminal act and the prosecutor subjectively believes in it’. When a person is in hiding or his location is unknown, he may be recognised as a suspect only by the decision of a prosecutor or pre-trial judge order (ruling). The theorists of Lithuanian criminal procedure24 have noted that the information that a person is in hiding or their location is unknown must be realistic, justified and based on data obtained from procedural actions provided for in the CCP, or operational activity. The Supreme Court of Lithuania has noted that ‘there is no barrier to recognise the real procedural position of the person as a suspect even [before] he was questioned as a witness’.25 The suspect has the following rights: a) to know with the commission of what criminal act he is suspected; b) to have a defence counsel; c) to give explanations in pre-trial investigation; d) to give documents and other material relevant to the pre-trial investigation; e) to lodge requests; f) to lodge challenges; g) to get access to the case-file of pre-trial investigation; h) to appeal against the actions and decisions of a pre-trial investigator, prosecutor or pre-trial judge. There are some differences in status between the suspect and the accused in Lithuanian criminal procedure. The accused shall be a party to judicial proceedings. The accused shall be a person against whom an indictment has been brought by the prosecutor, or for whom there is a prosecutor’s application to punish the person pursuant to a penal order, also a person against whom a case is heard on the basis of a private accusation or in an accelerated procedure. The accused shall be entitled to be provided with a transcript of the indictment; to examine in court the materials of the case and to make copies of the case documents; to have a defence counsel; to make motions; to make challenges; to give evidence and to be present during the examination of the evidence; to ask questions during the hearing; to provide explanations about the circumstances of the case which is being heard and to express his opinion about the motions made by the other parties to the proceedings; to take part in the arguments where there is no defence counsel; to address the court with the final speech; and to appeal the judgment and court orders. From 2008, CCP, Article 80 provides a possibility to examine in the pre-trial investigation phase a person, who could testify about his own possible criminal act, as a witness. Such a witness is called a ‘special witness’. His procedural situation is intermediate between that of a disinterested witness, and the suspect’s procedural status. A person may be questioned as

23 24 25

R Merkevicˇius, Baudžiamasis procesas: ˛itariamojo statusas (Vilnius, Registru˛ centras, 2008) 198–99. Ibid 200–203. Ruling of the Supreme Court of Lithuania in criminal case no 2K-281/2006.

Investigation Measures 413 a special witness if there are facts in the case to suggest that there was potentially a criminal act and that it was committed by a specific person, but there is insufficient information for the status of the suspect to be awarded to that person.26 The status of special witness is recommended to apply in cases in which the pre-trial investigation is carried out to determine whether the offence was actually committed, as well as when some investigations of the offence are not sufficiently clear, eg: possible violations of road safety or vehicle operating rules; violations made by the directors, or other authorised persons of companies, institutions, organisations; and in cases involving state officials and civil servants, when the law restricts pre-trial investigation of such persons, etc. A liability for false testimony (CC, Article 235) does not apply for the suspect (the accused) and special witnesses, as well as procedural measures of compulsion for the avoidance or refusal to give a testimony.

2. Questioning the Suspect Pre-Trial The suspect must be questioned at least once during the pre-trial investigation, before drawing up the indictment. The suspect must always be questioned before imposing a remand measure on him. CCP, Article 187 provide that before the start of the first questioning, the suspect must receive the suspicion notice, which must contain information about the criminal act (place of commission, date, other circumstances; the law which provides criminal responsibility for this criminal act), as well as the rights of the suspect. CCP, Article 189 provides that upon receiving the appropriate notification from the prosecutor, which may be filed on the initiative of the suspect, his defence counsel or the prosecutor, during the pre-trial investigation the suspect may be questioned by the pretrial judge. On the application of the suspect the prosecutor must bring him before the pre-trial judge within a reasonable time after filing such an application. On the initiative of the prosecutor the suspect shall be brought before the pre-trial judge for questioning if it is thought that during the trial the accused may change his testimony or exercise his right not to testify. The prosecutor and defence counsel must be present during the questioning held on the application of the suspect. The questioning of the suspect shall open by inviting the suspect to disclose the circumstances on the ground of which he wished to be questioned by the pre-trial judge. After that, the defence counsel and the prosecutor may put questions to the suspect. This measure may be executed before the pre-trial investigator, prosecutor or pre-trial judge. At the start of the questioning the suspect shall be asked whether he pleads guilty to the charge of a criminal act of which he is suspected; after that he shall be invited to make a testimony about the basic points of the suspicion. Finally he may be asked questions. The record of the questioning of the suspect shall be made following the requirements laid down in CCP, Article 179. The testimony of the suspect shall be entered in the record

26 Generalinio prokuroro, ‘Rekomendacija de˙l liudytojo apklausos Baudžiamojo proceso kodekso 80 ir 82 str nustatyta tvarka’, Valstybe˙s žinios, 2008, Nr 6-234.

414

Lithuania

in the first person singular and be recorded verbatim as far as possible. Where necessary, the questions put to the suspect and his replies shall be noted. A free suspect receives the summons for questioning, and a provisionally arrested or detained suspect is delivered to the place of questioning. The summons shall indicate the person to be summonsed and for what purpose, the place and to whom he is being summonsed, the day and hour when he has to present himself, and the consequences that would arise (the fine) in the event of a failure to present himself. A person may also be summonsed for questioning by telephone or any other way, except that if such is the case, no procedural coercive measure (ie fine) may be applied for failure to present himself. The theory of Lithuanian criminal procedure states that the suspect’s right to have defence counsel may be exercised before the first questioning.27

3. Interrogation of Witnesses and Victims in the Pre-Trial Investigation Stage (a) Witnesses Any person of whom there is evidence that he has knowledge of any circumstances relevant to the case may be summonsed as a witness. The Supreme Court of Lithuania has noted that ‘witness testimony is legally obtained data that can be verified by the procedural actions provided in the CCP; they cannot be false’.28 A witness shall have the right: (i) to testify in his mother tongue and to make use of the services of an interpreter if the examination is conducted in a language he does not know; (ii) to examine the record of his testimony and make revisions in it; (iii) to request sound and video recording during his testimony; (iv) to provide protection from undue interference; (v) to be reimbursed for the expenses he has incurred.29 (b) Victim The person who, as a result of a criminal act, has sustained physical, material or moral harm, shall be recognised by the decision of the prosecutor or pre-trial investigator, or the court order (ruling) as the victim. The victim and his representative shall be entitled to adduce evidence, to make motions, to make challenges, to examine in court the materials of the case, to take part in the hearing, to appeal the actions of a pre-trial investigator, a prosecutor, a pre-trial judge and of the court, to appeal the judgment or a court order; and to address the court during the arguments. The victim shall be summonsed and examined as a witness. The victim must testify on oath and will be held responsible for committing any perjury (CC, Article 235) as a witness. The following persons shall be precluded from being witnesses: a) a person who, under a certificate of a medical institution or a conclusion of a psychiatrist or medical examiner, is unable, owing to his physical or mental disability, to form a clear understanding of the

27

Goda, Kazlauskas, Kuconis (n 1) 105. Ruling of the Supreme Court of Lithuania in criminal case no 2K-30/2006. 29 On problematic aspects on codification and implementation the rights of the witness in Lithuanian criminal procedure, see: R Jurka, Liudytojas ir jo procesiniai interesai baudžiamajame procese (Vilnius, Registru˛ centras, 2009) 134–228. 28

Investigation Measures 415 facts relevant to the case, and cannot, therefore, testify about them; b) a person who can testify about a criminal act he himself committed; c) a judge having knowledge of a secret of the deliberation room; d) the defence counsel of the suspect and the accused, representatives of the plaintiff and the defendant in a civil action owing to the circumstances which came to their knowledge in their capacity as counsel or representatives; e) clergymen— because of the secrets of the confessional; f) producers, disseminators of information for the public, the publishers and/or disseminators of information for the public, journalists for the reason of confidentiality of the source of information under the Law on Providing Information to the Public.30 Members of the family or close relatives of the suspect and the accused may refrain from giving evidence, or from replying to some of the questions put to them. The pre-trial investigator, prosecutor, pre-trial judge or court must inform members of the family or close relatives of the suspect and the accused before questioning about their right to refuse to testify or to reply to some of the questions put to them. The Supreme Court of Lithuania strictly observes this requirement in court practice, eg the Court noted that ‘questioning the suspect mother without her consent violates the requirements of the CCP’.31 It must be noted that in the case law of Lithuanian courts, the members of the family are treated in a broad sense and include persons whose family relations are a priori or post factum.32 CC, Article 248 states that: [C]lose relatives shall be parents (adoptive parents), children (adopted children), brothers, sisters, grandparents and grand children. Family members of the perpetrator shall be the parents (adoptive parents), children (adopted children), brothers, sisters and their spouses living together with him, also the spouse of the perpetrator or the person living with him in common law (partnership) and parents of the spouse.

The Constitutional Court has noted that ‘Art 31 of the Constitution contains a provision that persons cannot be compelled to give evidence against themselves or against their family members or close relatives … In cases when such persons, being aware that they have the right to refuse to testify … subsequently commit perjury, they may be brought to criminal responsibility as well’.33 A juvenile witness or a victim who is under 14 years of age shall be examined by the pre-trial judge, accompanied, if so requested, by his representative, defence counsel or prosecutor.34 A juvenile witness and a victim who are under 18 years of age shall, as a rule, be examined during a pre-trial investigation not more than once. A video and audio recording must be made during their examination. If a suspect or his defence counsel is present at the questioning of a witness or victim younger than 18 years of age, the pre-trial judge shall ensure that such witness or victim is not subjected to any unauthorised influence. Witnesses or victims younger than 18 years of age shall be called to a trial hearing only in exceptional cases.

30

Visuomene˙s informavimo ˛i statymas, Valstybe˙s žinios, 2000, Nr 75-2272. Ruling of the Supreme Court of Lithuania in criminal case no 2K-514/2000. 32 Jurka (n 29) 205. 33 Konstitucinio Teismo 2000 m rugsejo 19 d nutarimas, ‘De˙l Baudžiamojo proceso kodekso atskiru˛ straipsniu˛ atitikimo Konstitucijai’, Valstybe˙s žinios, 2000, 80-2423. 34 The Prosecutor General has adopted methodological recommendation on this issue: Generalinio prokuroro ˛i sakymas, ‘De˙l Rekomendacijos de˙l nepilnamecˇio liudytojo ir nukente˙jusiojo apklausos’, Valstybe˙s žinios, 2009, Nr 112-4806. 31

416

Lithuania

If the suspect may have an unfluence on a witness or victim who is less than 18 years, the pre-trial judge adopts the decision to refuse the participation of the suspect in such examination. The prosecutor informs the suspect and his counsel of the decision of the pre-trial judge by submitting a copy of this decision. The victim or the witness my request that the prosecutor or a pre-trial investigator grant them non-disclosure of their identity.35 The prosecutor or the pre-trial investigator will do so where there are necessary grounds.36 Non-disclosure of identity of the victim and witness may arise where there are the following grounds: 1) there is a threat of real danger to the life, health, freedom or property of the victim, the witness or members of their family or close relatives; 2) the evidence of the victim or the witness is of great importance to the criminal case; 3) the victim or the witness are taking part in a case relating to a less-serious, serious or very serious crime. The pre-trial judge shall question the victim or the witness subject to non-disclosure of identity with these exceptions. The pre-trial judge may determine that the questioning must be conducted in the absence of the defence counsel at the place where the questioning is taking place. In such a case, after questioning, the judge shall inform the defence counsel of the testimonies obtained. After that, the defence counsel shall have the right to put questions to the victim or the witness through the pre-trial judge. If the questions asked could reveal the identity of the person subject to questioning, the pre-trial judge shall have the right not to ask the questions, or re-formulate them. The answers to the defence counsel questions shall be entered in the record of the questioning which the defence counsel shall be entitled to examine after questioning. If the person who is to make identification is a person subject to non-disclosure of identity, the identification parade shall be conducted by providing acoustic and visual obstacles, to conceal the identity of the identifier. Every person summonsed as a witness must appear before the pre-trial investigator, the prosecutor or the court and give truthful testimony as to his knowledge of the circumstances which are relevant for the case. If a witness fails, for no good reason, to appear before the pre-trial investigator, the prosecutor or the court, or refuses, without a lawful cause, to give evidence, procedural coercive measures—a fine—shall be applied against him. Where a witness fails to appear before the court or, with no lawful basis, refuses to give evidence, the judge or the court may also order his arrest. A witness shall be held liable for perjury under CC, Article 235. The Constitutional Court has noted that: [E]veryone summoned to witness in court must appear in court and give his testimony regarding everything that is known to him in the case and correctly to answer all the questions. The duty of the witness to testify and tell the truth in a criminal case is also assured by the fact that criminal

35 The Constitutional Court has emphasised that ‘non-disclosure of victim or witness identity must be an exeptional measure for the protection of their safety’, Konstitucinio teismo 2000 m rugse˙jo 19 d nutarimas, ‘De˙l Baudžiamojo proceso kodekso atitikties Konstitucijai’, Valstybe˙s žinios, 2000, Nr 80-2423. The same approach can be found in the case law of the Supreme Court of Lithuania (eg the Supreme Court ruling in criminal case no 2K-402/2005, etc). 36 The Prosecutor General has adopted methodological recommendations on this issue: Generalinio prokuroro ˛i sakymas, ‘De˙l Rekomendacijos de˙l anonimiškumo nukente˙jusiajam ar liudytojui suteikimo ir šio sprendimo procesinio ˛iforminimo’, Valstybe˙s žinios, 2008, Nr 135-5299.

Investigation Measures 417 liability is provided in case such a duty is not performed. Liability is also provided for the victim in case he presents false evidence.37

A legal person in a criminal procedure cannot have neither the status of witness, nor of victim. If the harm is caused to the legal person by a criminal act, it will have the status of civil plaintiff in criminal procedure. The fact, the progress and the result of the examination of the witness and victim are recorded in the record, each page being signed by the witness or victim himself (CCP, Article 179). A person (victim or witness) shall be called for questioning by a summons.38 The witness or victim must appear before the pre-trial investigator, the prosecutor or the court. A witness or victim who fails to appear before the pre-trial investigator without lawful excuse, may be brought in (CCP, Article 142).

4. Arresting the Suspect and Detention for Questioning According to the CCP a provisional arrest can be ordered and enforced by any person, pretrial investigator or prosecutor, if the person concerned is apprehended either in the criminal act (in flagrante delicto) or immediately after the criminal act. The police must be informed immediately if the person was arrested by any other person. Unless the person is caught redhanded, only the prosecutor, or pre-trial investigator in exceptional cases, may decide upon provisional arrest, provided that a ground for it exists: 1) there are grounds for pre-trial detention; 2) there is a need immediately to restrict the freedom; 3) there are no possibilities of bringing the person before a pre-trial judge for the imposition of pre-trial detention. A prosecutor must be notified in any case of the provisional arrest of a person, by means of a copy of the written provisional arrest protocol. CCP, Article 140 regulates the time limits for provisional arrest. The arrested person must be questioned as suspect within 24 hours, by pre-trial investigator or prosecutor. This provision contains no such wording as ‘as soon as possible’, but the provision has to be read in connection with another rule, which provides that: [A]rrest shall not last longer than is necessary for identification of a person and for taking indispensable procedural steps.

The maximum term for provisional arrest is 48 hours. As an exception to this rule, the maximum term for provisional arrest is 24 hours if a person has already been questioned as suspect earlier in the process (however, a prosecutor has the right to extend this term up to 48 hours). If the prosecutor is of the opinion that pre-trial detention is necessary, the arrested person must be brought, within 48 hours, before a pre-trial judge. Provisional arrest (in the case of a person apprehended in the criminal act (in flagrante delicto) or immediately after the criminal act) may be enforced for any criminal act provided in the CC. In other cases the provisional arrest may be ordered and enforced in exceptional cases only for a crime punishable by more than one year of imprisonment (meaning the abstract (legal) order of the penalty, not the penalty that is probable in the concrete case). 37 Konstitucinio Teismo 2000 m.rugse˙jo 19 d nutarimas, ‘De˙l Baudžiamojo proceso kodekso atskiru˛ straipsniu˛ atitikimo Konstitucijai’, Valstybe˙s žinios, 2000, Nr 80-2423. 38 For more on summons, see section B.2.

418

Lithuania

In every case of provisional arrest, the pre-trial investigator or prosecutor as soon as possible must file the written protocol of the provisional arrest of the person.

5. Pre-Trial Custodial Detention According to the CCP, pre-trial detention is one of the provisional measures that can be applied to secure proper functioning of the criminal procedure or to prevent new crimes, if other provisional measures do not suffice. CCP, Article 122 provides that pre-trial detention may be applied only if a ‘reasonable ground’ exists that justifies to believe that a suspect committed a criminal act. When deciding upon applying for or ordering pre-trial detention, the prosecutor, pre-trial judge or court have to take into account the gravity of the criminal act committed by a suspect, his personality, whether he has a permanent residence and a job or any other legal means of livehood, his age, the condition of his health, his marital status, and other circumstances which might be pertinent when determining this issue. The wording ‘reasonable ground’ is not defined any further; according to the Supreme Court of Lithuania,39 the court must examine whether there is any reasonable evidence that the suspect could have committed the crime. A report by the Office of the Prosecutor General shows that ‘prosecutors have applied for the imposition of pre-trial detention only in cases where there is actually sufficient ground to believe that an accused person may be found guilty’.40 The CCP gives four grounds for pre-trial detention: 1) the risk of escape; 2) the risk of obscuring evidence by the suspect or accused; 3) the risk of committing new crimes; 4) a request for extradition or EAW. CCP, Article 122 provides that ‘pre-trial detention is possible if there is probable cause to believe that suspect might escape (go into hiding) from the pre-trial investigator, prosecutor or court’. According to this provision, not only must the personal circumstances such as marital status, place of residence, etc be taken into account, but also the record of convictions. The CCP does not provide for an automatic connection between the risk of absconding and a person’s status as a foreigner, or lack of a fixed abode. With respect to the risk of collusion, pre-trial detention is possible when there is evidence that a suspect himself, or through other persons, might make an attempt to approach victims, witnesses, experts, other suspects or convicted persons, or to destroy, conceal or forge tangible objects and documents relevant to the case. When there is reasonable ground to believe that a suspect will commit new crimes, pre-trial detention might be imposed when a person is suspected or accused of having committed one or several serious or very serious crimes, or aggravated theft, robbery, extortion or aggravated damaging of property, and might, before rendering of the judgment, commit a new very serious crime or one of the crimes mentioned above. The same is possible when there is evidence that while at large, the suspect, suspected of a threat or an attempt to commit a crime, might actually commit any crime.

39 Lietuvos Aukšcˇiausiojo Teismo Senato 2004 m gruodžio 30 d nutarimas Nr 50, ‘De˙l teismu˛ praktikos skiriant sue˙mima˛ ir namu˛ arešta˛ arba prate˛siant sue˙mimo termina˛’ (Teismu˛ praktika, 2004). 40 Generaline˙s Prokuratu ¯ros 2007 m geguže˙s 22 d apžvalga ‘De˙l ikiteisminio tyrimo, kuriuose taikytas sue˙mimas, nutraukimo pagrindu˛’ (Vilnius, 2007).

Investigation Measures 419 The Supreme Court of Lithuania has noted41 that the seriousness of a crime and the gravity of the possible sanction may be sufficient ground for the pre-trial detention. However, in jurisprudence, this remark has not lead to the practice of pre-trial detention being applied automatically after serious crime; other factors such as prior convictions, source of living, family relations, etc are taken into account as well.42 Pre-trial detention may be ordered only for a crime which is punishable by more than one year of imprisonment (meaning the abstract (legal) order of the penalty, not the penalty that is probable in the concrete case). The CCP provides the time limits for pre-trial detention in the pre-trial investigation stage of the case: from three months (the period that can be ordered initially), up to six months. This period can be extended: if the case is very complex or has a particularly large scope, the judge of a higher court can grant incremental extensions of three months—the overall duration may not exceed 18 months for adults and 12 months for juveniles. Once the pretrial investigation has been finished and procedure has progressed to the trial stage, the possibility of further extensions is without limit. The prosecutor has to file an application to the pre-trial judge of the competent District Court (the court of the district where the pre-trial investigation is being conducted). The pre-trial judge of the District Court is competent for all decisions relating to the pre-trial detention order. The CCP provides that a hearing of the arrested suspect within 48 hours is a condition before the pre-trial judge can decide upon a pre-trial detention order (ruling). Participation of suspect is obligatory; defence counsel and prosecutor may be present and take part in questioning of the suspect. In accordance with the CCP, Article 127, for determining the issue of extension of pretrial detention during pre-trial investigation, the competent pre-trial judge holds a hearing to which he must summon the defence counsel and the prosecutor (whose presence is obligatory). If needed, the suspect may be brought to the hearing as well; this is mandatory when pre-trial detention lasts for more than six months. The pre-trial judge order (ruling) for pre-trial detention must be written, reasoned and must include the formal particulars stated in CCP, Article 125 (eg criminal act, criminal law, suspect, grounds for the pre-trial detention, etc). An appeal against imposition or extension of pre-trial detention may be filed within 20 days from the moment of deciding to impose or extend pre-trial detention. The appeal should be filed through the court that imposed or extended the pre-trial detention. The court must communicate the appeal, without delay, to a higher court. A judge of the higher court must consider the appeal within seven days from the receipt of the appeal. A hearing shall be held to consider the appeal against the imposition or extension of pre-trial detention, and the detainee and his legal counsel or only the counsel shall be summonsed to the hearing. The presence of the prosecutor during such hearing is obligatory. The decision of the judge of a higher court is definitive and not subject to appeal. Practically, the suspect (accused) and his defence counsel gets the chance to have his pretrial detention examined twice every three months. According to the CCP, Article 123 a record of the hearings shall be made and has to contain explanations by the person brought before the judge as well as motions and comments of the other parties (prosecutor, defence counsel) involved. 41 Lietuvos Aukšcˇiausiojo Teismo Senato 2004 m gruodžio 30 d nutarimas Nr 50 ‘De˙l teismu˛ praktikos skiriant sue˙mima˛ ir namu˛ arešta˛ arba prate˛siant sue˙mimo termina˛’ (Teismu˛ praktika, 2004). 42 Ruling of the Appeal Court of Lithuania in criminal case no 1S-33/2008.

420

Lithuania

6. Interception of Postal Communications (Letters) If it is necessary to seize tangible objects or documents of value (eg postal or telegraphic communications) for the pre-trial investigation, and if is known where and at whose place precisely they are, the pre-trial investigator or the prosecutor may effect a seizure of postal or telegraphic communications (letters). Only the prosecutor, the judge or the court shall have the right to examine the content of postal or telegraphic correspondence. Theorists of Lithuanian criminal procedure43 have noted that this measure may be applied to the suspect or person related to the suspect. It is prohibited to effect seizures (eg postal or telegraphic communication) at night, with the exception of cases of the utmost urgency. An officer effecting a seizure of postal or telegraphic communication (letters) must take measures to prevent disclosure of the circumstances, unrelated to the case, concerning the private life of a person living in the premises, and of other persons, which come to light during the seizure. Instructions of an officer effecting interception of postal and telegraph messages shall be mandatory for the employees of a postal or telegraphic institution. Persons not complying with these directions shall be fined. Interception of postal and telegraphic messages shall be authorised under a written and reasoned warrant of a pre-trial judge. In cases of utmost urgency, seizure of postal or telegraphic communication (letters) may be effected under a decision of the pre-trial investigator or the prosecutor; however, in such cases, within three days, the approval of the pre-trial judge must be obtained regarding the lawfulness of such a seizure. If such approval is denied, all objects and documents have to be returned to the persons from whom they were seized. Moreover the results of such seizure cannot form evidence of culpability of the suspect. A record of the seizure of postal or telegraphic communication (letters) shall be drafted. The record must specify the objects and documents seized, and their main features must be described. If no objects or documents were seized, this also must be indicated in the record. One copy of the record of a seizure shall be left with the person at whose place the seizure was conducted. Interception (seizure) of the postal or telegraph communication is a secret pre-trial investigative action.44

7. Interception of the Contents of Telecommunications; Monitoring of Telecommunication Traffic Data; On-line Search of Computers Where there is a prosecutor’s request, in the form of an order of the pre-trial judge, a pretrial investigator may intercept telephone conversations, to record and collect them, monitor other information transmitted via telecommunications networks and make recordings if there are grounds to believe that in this way information may be obtained about a lessserious, serious or very serious crime in preparation, being committed or committed, or 43

Goda (n 18) 370. The secret pre-trial investigation action means that there is no obligation to notify the suspect, defence counsel, victim or other parties to the proceeding in advance about the place and time of the execution of this measure. 44

Investigation Measures 421 if there is a danger that violence, coercion or other illegal actions may be used against a victim, witness or other parties to the proceedings or their relatives. The theorists of Lithuanian criminal procedure accept that this procedural measure can be applied either to the participants of criminal proceedings or to other persons (this is an exception).45 On the other hand the doctrine also accepts that it has to be on the basis and argumentation of the written request of the prosecutor that this procedural measure is applied.46 This measure may be applied when investigating: 1) less-serious, serious or very serious crimes; or 2) minor crimes,47 provided in CC, Articles 170, 198(2), 226 and 227 (incitement against any national, racial, ethnic, religious or other group of persons; unlawful disposal of installations, software, passwords, login codes and other data; trading influence and bribery); or 3) there is a danger that violence, coercion or other illegal actions may be used against a victim, witness or other parties to the proceedings or their relatives. CCP, Article 154 provides that it is possible to intercept telephone conversations and monitor other information transmitted via telecommunications networks (except its content), if there are grounds to believe that in this way, information may be obtained about less-serious, serious or very serious crimes; or minor crimes, provided in CC, Article 166, 170, 1981 and 309 (violation of a person’s correspondence; incitement against any national, racial, ethnic, religious or other group of persons; unlawful connection to an information system; possession of pornographic material). The Prosecutor General’s recommendations on applying the Law on Operational Activities and the CCP48 states, that if technical measures are used, it is necessary to establish the exact location of telecommunications systems or other electronic terminals (eg mobile telephones or radio equipment), and rules applicable for secret surveillance must be followed. Lithuanian criminal procedure49 emphasises that the procedural coercive measures may involve both participants in criminal proceedings as well as persons who have not participated in criminal proceedings (although this is an exception), and does not discuss what level or degree of suspicion is necessary in order to monitor electronic communications networks and transmission of information, except its content. On the other hand, the doctrine states that in the written request of the prosecutor to allow the coercive measures, there must be described the background and the motivation of application of this measure to a particular person.50 Interception of telephone conversations and the recording and monitoring of other information transmitted via telecommunication networks, may not last for longer than

45

Goda, Kazlauskas, Kuconis (n 1) 271. Goda (n 18) 388. 47 According to CC, Art 10 ‘a minor crime is a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration of three years. A less serious crime is a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of three years, but not exceeding six years of imprisonment. A serious crime is a premeditated crime punishable, under the criminal law, by a custodial sentence of the duration in excess of three years, but not exceeding ten years of imprisonment. A very serious crime is a premeditated crime punishable, under the criminal law, by a custodial sentence of the maximum duration in excess of ten years.’ 48 There are some legal doubts about the constitutionality of these recommendations, since they were not published in the Official Gazette. 49 Goda (n 18) 388. 50 Goda (n 18) 388. 46

422

Lithuania

six months. When investigating a complicated or large-scale criminal act, however, such measures may be extended once for a further three months. CCP, Article 154 forbids the interception, recording or monitoring of telephone conversations between counsel and the suspect or accused, or of other communications from these persons transmitted via telecommunications networks. Interception and recording of telephone conversations of victims, witnesses or other parties to the proceedings, and monitoring and recording of other communications of these persons transmitted via telecommunications networks, may be effected at the request of these persons51 or with their consent even where there is no order by the pre-trial judge, and where the services and facilities of a communications business are not used. Audio recordings that are immaterial for the case shall not be attached to the case file and shall be destroyed forthwith, and an appropriate statement shall be drawn up by a decision of a prosecutor. Communications companies must when necessary provide information on communication traffic data, must provide conditions for interception of telephone conversations or monitoring of other information transmitted via the telecommunications networks, and make recordings. Any employees of a communications company who fail to discharge this obligation or who obstruct the carrying out of the actions may be punished by a fine. Such measures are executed by the pre-trial investigator. In cases of extreme urgency, these actions may be also applied by a decision of a prosecutor; however, if this is the case, within three days from the start of these actions the consent of the pre-trial judge must be obtained. If such consent is denied, the actions that have been initiated must be cancelled and all records immediately destroyed. Any record made by a pre-trial investigator about monitoring of information transmitted via the telecommunications networks shall outline only the contents of an audio recording relevant for the criminal case. In the case of monitoring of telecommunication traffic data, a separate record is not drawn up. The documents about telecommunication traffic data obtained from telecommunication companies must be added to the case file. Interception of the contents of telecommunication, its recording and collection, and monitoring of telecommunication traffic data, are secret pre-trial investigative actions.

8. Surveillance in Public and Private Spheres (Acoustic and Visual) A pre-trial judge, upon receiving an appropriate application from a prosecutor, may order surveillance of a person or a motor vehicle or other object. This measure may be applied when there is pre-trial investigation data,52 which justifies the necessity to get the information about a person, motor vehicle or other object. Official who have taken part in secret surveillance may be questioned as witnesses. If necessary, the rules of non-disclosure of identity of the witness (official) may be applied. The order of a pre-trial judge or decision of the prosecutor or pre-trial investigator for surveillance of a person, a motor vehicle or an object must specify the following:

51 52

Ruling of the Supreme Court of Lithuania in criminal case no 2K-510/2005. Goda (n 18) 404.

Investigation Measures 423 1) the person, the motor vehicle or the object of the surveillance; 2) the reason for such a measure; 3) the duration of surveillance. If a video or audio recording or filming is wanted (intended) during surveillance this must also be provided for in the order of the pre-trial judge, or decision of the prosecutor or pre-trial investigator. In cases of extreme urgency, these actions may be also applied by a decision of a prosecutor or a pre-trial investigator; however, if this is the case, within three days from the start of these actions the consent of the pre-trial judge must be sought. If such consent is not forthcoming, the actions that have been initiated must be cancelled and all collected data must be destroyed. The official who took part must prepare the record of the secret surveillance. The secret surveillance is a secret pre-trial investigative action.

9. Monitoring of Bank Transactions; Data Mining and Profiling The CCP does not provide special rules for monitoring of bank transactions. In order to monitor bank transactions, the prosecutor (with the consent of the pre-trial judge) must apply the rules applicable for the request for the examination of the necessary documents or any other appropriate information, the making of recordings or copies of documents and information, if this is necessary for the investigation of a criminal act (CCP, Article 155). Having obtained the consent of a pre-trial judge, the prosecutor shall have the right to request any state, public or private agency, enterprise or organisation to facilitate the examination of the necessary documents or any other appropriate information, and make recordings or copies of documents and information, if this is necessary for the investigation of a criminal act. The theory of the Lithuanian criminal procedure indicates that under this procedure it is impossible to get information from individuals even if he has it.53 Article 55 of the Law on Banks54 states that: [T]he secret of a bank shall be all data and information known to the bank on: 1) accounts held in the bank by the bank’s client, the balance of funds in these accounts, the client’s operations performed with the funds in his account, the terms of the contracts on the opening of the accounts by the client; 2) liabilities of the bank’s client to the bank and terms of the contracts wherefrom these liabilities have arisen; 3) other financial services provided to the bank’s client and terms of the contracts on the provision of the financial services; 4) the financial situation and assets of the bank’s client, activities, operating plan, liabilities to third parties or transactions concluded with the third parties, commercial (industrial) or professional secrecy of the client.

A bank shall provide the information which is considered a secret of the bank to the institutions or officials referred to under the Law on the Prevention of Money Laundering and Financing Terrorists,55 CCP, etc. The prosecutor may only use the information gathered in the specified manner for the investigation of a criminal act. The prosecutor must immediately destroy any information not necessary for this. It is not possible to carry out this measure covertly.

53 54 55

Goda (n 18) 392. Banku˛ ˛i statymas, Valstybe˙s žinios, 2004, Nr 54-1832. Pinigu˛ plovimo ir teroristu˛ finansavimo prevencijos ˛i statymas, Valstybe˙s žinios, 2008, Nr 10-335.

424

Lithuania

Persons who refuse to provide requested information or documents to the prosecutor may be punished by a fine. This measure may be executed by the prosecutor and the pre-trial investigator, but only under the prosecutor’s instruction. In this case a separate record is not drawn up. The documents about bank transactions obtained from banks or documents with the requested information must be added to the case file. The right of the prosecutor to request the information is a secret pre-trial investigative action.

10. Tracking and Tracing of Objects and Persons. Access to ‘Crime Scenes’ In order to examine the traces of a criminal act and other items relevant to the disposition of the case, to uncover the circumstances of the crime and other facts pertinent to the case, an examination of the scene of the crime, the human body, the location, premises,56 documents and other items may have to be conducted. ‘Crime scenes’ or other places, as well as tangible objects relevant to the pre-trial investigation of a criminal act, or any items which do not have to be examined, shall be inspected by the prosecutor, a pre-trial investigation officer or a specialist. A record of the inspection shall be made which shall specify in detail the ‘crime scene’, other places or items, and their features relevant to the establishment of the circumstances of a criminal act. Such places or items shall be photographed as required. An exhumed body must be identified by the persons who knew him, or identified in some other way. Family members or close relatives of the dead person shall have the right to be present during the exhumation. Examination of items shall be carried out by specialists. Examination of a human body shall be carried out by a medical examiner or any other doctor. Examination of the mental state of a person shall be carried out by a forensic psychiatrist. Tangible objects, documents and other items shall be examined at the site of their discovery. Where the examination of tangible objects, documents or other items takes a long time or where technical facilities are needed, they may be examined at a laboratory or other place having adequate facilities. Exhumation of an officially buried body and examination of a person’s residence or work premises which are not the scene of the criminal act without the consent of the owners or the representatives of an enterprise, institution, or organisation are subject to the written and reasoned order of the pre-trial judge. Upon completing the examination of the places or items assigned to him, a specialist shall submit his report. A specialist’s report may be included in the record of the examination conducted. Illustrative material shall be adduced to the conclusion of a specialist. The CCP does not impose an obligation for the pre-trial investigator or prosecutor to notify the defence counsel of the suspect, representative of the victim or other parties to the proceedings about a ‘crime scene’ inspection or examination. However, the CPP does

56 There are procedural restrictions to access to residential and work areas of diplomats, MPs, judges, judges of the Constitutional Court, members of the Bar, etc.

Investigation Measures 425 not prohibit it. If the pre-trial investigator or a prosecutor believes that such participation of the suspect, victim, their representatives or counsel in the examination and investigation of the scene will not jeopardise the success of the pre-trial investigation, and will be useful to clarify the circumstances, he has the right to inform these stakeholders about the time and location of crime scene examination. 11. Search and Seizure (a) Seizure If it is necessary to seize tangible objects or documents of value for the pre-trial investigation, and if it is known where and in whose possession they are, the pre-trial investigator or the prosecutor may effect a seizure. (b) Search Upon reasonable belief that there are, in some premises or other place, instruments of an criminal act, tangible objects obtained or acquired in a criminal way, or other objects or documents that might be relevant for the pre-trial investigation, a pre-trial investigator or a prosecutor may carry out a search with a view to discovering and seizing them. A search may also be carried out with the purpose of finding fugitives or bodies. The Supreme Court of Lithuania has noted that ‘data must be realistic, reasonable and may be obtained from procedural actions (eg victim or witness testimony, etc) or operational activity’.57 (c) Body Search A personal search may be carried out subject to the same rules as a search of a flat, house or other premises. A personal search, without a prior order relating to the search, may be carried out: 1) when effecting arrest or detention; 2) when there are substantial grounds for believing that a person present on the premises or any other place where a seizure or a search are being carried out is hiding tangible objects or documents relevant to the case. (d) Search of the Person A pre-trial investigator or a prosecutor shall have the right to carry out a body search of a suspect, a victim or any other person when there is a need to find traces of the criminal act or any special marks on his body, where medical examination is not necessary. Where the person objects to being subjected to a body search, an order to this effect from a pre-trial investigator or a prosecutor is required. It is prohibited to effect seizures or searches at night, with the exception of cases of the utmost urgency. An officer conducting a seizure or a search must limit himself to the seizure only of those objects or documents which may be of relevance for the pre-trial investigation. Tangible objects and documents the circulation whereof is prohibited by law must be seized irrespective of whether they are relevant or not for the investigation. 57

Ruling of the Supreme Court of Lithuania in criminal case no 2K-141/2007.

426

Lithuania

A personal search may be carried out only by someone of the same sex. If the search involves exposure of the person’s body, it will be carried out by a pre-trial investigator, a prosecutor or a medical doctor of the same sex as the person searched. When carrying out a personal search on a person, actions humiliating to his dignity or which are detrimental to his health shall not be permitted. A seizure or search must be carried out in the presence of the owner, tenant, manager of the flat, house or other premises where the search is being conducted, a member or their family or a close relative, and where a search is being carried out in business premises or an office, in the presence of a representative of that business or office. When it is not possible to arrange the presence of the above persons, a search shall be carried out in the presence of any other two persons or a representative of a municipal institution. Where appropriate, guests may be invited to participate in the search and in other cases. Searches of land, forestry or bodies of water can take place without the participation of the owner, tenant or manager, but after the search these persons have to be informed of the search in writing. Seizures and searches of premises occupied by a diplomatic mission, or where members of a diplomatic mission and their families live, may be effected only subject to a request by, or with the consent of diplomatic representatives. An officer effecting a seizure or search must take measures to prevent disclosure of the circumstances of private life, unrelated to the case, of a person living in the premises and other persons which come to light during the seizure or search. Persons in possession of tangible objects or documents subject to seizure must not interfere with the officers carrying out a seizure. Failure to comply with this requirement may result in them being fined. These measures may be executed by the pre-trial investigator or prosecutor. Before starting a seizure or a search, an officer must read out a decision or an order relating to the search, after which he must request that the tangible objects or documents specified in the decision or the order be surrendered, or the place where the person is in hiding be disclosed. When effecting a seizure or a search, an officer shall have the right to gain entry; when doing this the officer must avoid unnecessary damage to locks, doors or other objects. An officer shall have the right to forbid those persons present at the premises or place where a seizure or a search is taking place, and also those persons who come to the premises or place, from leaving the premises or the place, or from communicating among themselves or with other persons, until the seizure or the search is over. The premises or the place where a seizure or a search takes place may be surrounded by officers. If persons having possession of the tangible objects or documents subject to seizure do not agree to surrender these objects and documents voluntarily, seizure may be effected by force. The pre-trial judge warrant ordering seizure or search must be written and reasoned. In case of a search, the warrant must indicate what objects will be searched for. In cases of utmost urgency, a seizure or search may be effected under a decision of the pre-trial investigation officer or the prosecutor; however, in such cases, within three days, approval of the pre-trial judge must be sought with regard to the lawfulness of such a seizure or search. If this approval is denied, all objects and documents which had been taken shall be returned to those from whom they were taken, and cannot be referred to as evidence later in the criminal procedure.

Investigation Measures 427 A record about the seizure or search shall be drafted. The record must specify the objects and documents seized, and their main features must be described. If no objects or documents were seized during the search, this must also be indicated in the record. A copy of the record of a seizure and search shall be left with the person at whose place the seizure or search was conducted. All the seized tangible objects and documents must be shown to the persons present and must be listed in the record of a seizure or search, or in a list attached to it, indicating their quantity, measurements, weight, individual marks and their physical condition. The objects and documents seized must be packaged, however possible, and sealed at the place of seizure or search. The CCP does not oblige the pre-trial investigator or prosecutor to notify the suspect, defence counsel, victim or any other person in whose home the search or seizure is being conducted, about it. However the CCP does not prohibit the person in whose home the search or seizure is being conducted from inviting counsel or representative to monitor the course and results of this procedural action. If the pre-trial investigator or a prosecutor believes that such participation of the person during a search or seizure will not jeopardise the success of the pre-trial investigation, and will be useful to clarify the circumstances, he has the right to inform these stakeholders about this procedural action, and the right to invite them to participate in it.

12. Freezing With a view to securing a civil claim or confiscation of property,58 a temporary limitation of the property rights of a suspect or a natural person who is financially responsible for the actions of the suspect, or of other natural or legal persons who have possession of the property received or acquired by criminal means, may be imposed by a decision of a prosecutor. A temporary limitation on the property rights may be imposed together with or separately from a seizure or search. A temporary limitation of the property rights shall be cancelled by the decision of a prosecutor or a court order where the measure is no longer necessary. A prosecutor’s decision on a temporary limitation of the property rights may not be for longer than for a period of six months. This term may be extended, but for not more than two periods of three months by the order (ruling) of the pre-trial judge. However, the number of extensions in cases involving serious and very serious crimes or when a suspect is in hiding shall not be subject to any limits. This measure may be executed by the pre-trial investigator or prosecutor. The property of a person for whom a temporary limitation of property rights is being imposed, shall be charged. All the property charged must be shown to the persons present. The charging list must indicate the quantity of the objects charged and their individual features. The property with respect to which a temporary limitation of property rights is being imposed shall, at the prosecutor’s discretion, be given in trust to/transferred into the custody of a representative of the housing maintenance organisation or a municipal 58 The Supreme Court of Lithuania has noted that the CCP provides only these two grounds on which to apply a temporary limitation of property rights (ruling of the Supreme Court of Lithuania in criminal case no 2K-21/2010).

428

Lithuania

institution, or of the owner of the property or his relative; it must be explained to the aforesaid persons that they are liable under CC, Article 238 for dissipating or concealing such property. For this purpose, a written undertaking shall be taken to that effect. In the event of necessity, this property may be taken from them. Where a temporary limitation is imposed on bank deposits, all transactions involving them shall be suspended, provided the decision on a temporary limitation of the property rights does not provide otherwise. A decision on a temporary limitation of property rights shall indicate: 1) time and location of taking the decision; 2) the prosecutor who took the decision; 3) motives and grounds for a temporary limitation of property rights; 4) the person on whom a temporary limitation of property rights was imposed; 5) the person with regard to the satisfaction of whose claim a temporary restriction of the property rights is being imposed; 6) the name of the property the ownership rights thereto are temporarily limited, its code where the property is registered in the property register, its brief description, location and other information identifying it; 7) the owner/co-owners of the property subject to a temporary limitation of property rights; 8) forms of a temporary limitation of property rights and the extent; 9) the custodian of the property; 10) the procedure of enforcement of the decision; 11) the procedure for appealing against the decision. The resolution shall be notified promptly but not later than on the following day to the person whose property rights are to be temporarily limited, and to all the owners/ co-owners of the property to which the property rights are being limited. A copy of the resolution on a temporary limitation of the property rights shall be delivered to the owner of the property. Where there is no possibility of a prompt notification of a resolution, it shall be deemed that the resolution is notified upon the entry in the property register of the statements of seizure. A copy of the resolution on a temporary limitation of the property rights and its record must be forwarded, not later than on the following work day, to the administrator of the register. After cancellation of a temporary limitation of property rights, a prosecutor or the court shall promptly notify the administrator of the register and deliver a resolution on the cancellation of the temporary limitation. The CCP does not impose an obligation for the prosecutor to inform defence counsel about the place and time of the execution of this measure, nor does the CCP prohibit it. If the prosecutor believes that participation of the defence counsel will not jeopardise the success of the pre-trial investigation and may be useful, he has the right to inform defence counsel about this procedural action and even he has the right to invite his participation. A person on whom a temporary limitation of the rights of property has been imposed shall be entitled to appeal against the decision of a prosecutor to the pre-trial judge. Such an appeal must be examined by the pre-trial judge within three days from the receipt of the appeal. The decision of the pre-trial judge may be appealed against to a higher court, the decision whereof shall be final and not subject to appeal. 13. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) CCP, Article 97 states that: [P]re-trial investigator, prosecutor and the court have the right to require to present the tangible objects or documents relevant for the investigation of a criminal act and the trial from the natural and legal persons.

Investigation Measures 429 Under Lithuanian criminal procedure,59 the requirement to present tangible objects or documents is applied only when the location of the objects is well-known and there is no point in conducting a search or seizure. This procedural measure is applied when documents are required, which have to be developed and prepared individually by the officials or persons and only if there is no danger that the objects and documents may be destroyed or hidden. To date, academics60 have not discussed what level or degree of suspicion is necessary to initiate the requirement to present the tangible objects or documents. In special laws which govern the protection of different kinds of secrets (eg professional secrecy, trade secrets, etc), there is established a duty for public authorities and officials to provide for the pre-trial investigator, prosecutor or court documents or items required. For instance, under the Law on Tax Administration,61 information about the taxpayer can be provided by the tax authorities for courts, prosecutors and pre-trial investigators, only when it is necessary to carry out their functions. Article 22 of the Constitution state that: [I]nformation concerning the private life of a person may be collected only upon a justified court decision and only in accordance with the law.

In this context, CCP, Article 97 allows the pre-trial investigator and prosecutor ex officio (without the decision of the pre-trial judge) to require only those documents or items that are not related to personal privacy. When data related to personal privacy, or protected by professional secrecy, are needed, the prosecutor must resort to other procedural means, eg seizure, search, etc. Persons who fail to comply with the directions of a pre-trial investigator, a prosecutor or the court may be punished by a fine. This measure may be executed by the pre-trial investigator, prosecutor and court (judge). The requirement to submit documents or items has to be served (presented) for natural or legal person, imposing the duty to submit the required documents or items. The notice must specify the period within which the documents or items are to be submitted, as well as the place and the official to whom the items or documents must be submitted. In this case a separate record is not drawn up. The documents or items obtained from natural or legal person must be added to the case file. 14. Invoking the Assistance of Experts Expert examination shall be ordered where the pre-trial judge or the court determines that a special examination requiring scientific, artistic or any other special knowledge must be carried out in order to establish the circumstances of a criminal act. CCP, Article 84 provides that an expert is a person who has special knowledge in a particular field and whose name is on the Experts’ List of the Republic of Lithuania.62 Where

59

Goda (n 18) 251. Eg Bucˇiu¯nas, Gruodyte˙ (n 18); Ibid; Goda, Kazlauskas, Kuconis (n 1); etc. 61 Mokescˇiu˛ administravimo ˛ i statymas, Valstybe˙s žinios, 2004, Nr 63-2243. 62 Requirements for the expert, procedure and other aspects is regulated by Law on Judicial Examination, Teismo ekspertize˙s ˛istatymas, Valstybe˙s žinios, 2002, Nr 50-4969. 60

430

Lithuania

no experts in a field needed are to be found on the Experts’ List, a person whose name is not on the Experts’ List may be appointed an expert. CCP, Articles 89 and 90 provide that a specialist shall be a person who has adequate special knowledge and skills, and who has been appointed by a pre-trial investigation institution to conduct examination of tangible objects and submit a report on the issues within his competence. For example, forensic pathologists shall be specialists conducting an examination of a human body or a cadaver; forensic psychiatrists—examination of a person’s mental condition. Upon completing the examination of the items assigned to him, a specialist shall submit his report. A specialist’s report may be included in the record of the examination conducted. Where it is necessary to examine the items in a laboratory, a specialist’s report shall be drawn in the form of a separate document. CCP, Article 87 provides that an expert must, when called upon, appear before the court and present an objective report about the matters put to him. Where an expert, for no good reason, fails to appear before the court, or where he refuses to perform his duty without a lawful ground, a fine may be applied. An expert shall be held liable for giving a false conclusion under CC, Article 235. The pre-trial judge order for expert examination shall be forwarded to an institution of expert examination or delivered to the expert. An expert shall have a right: 1) to examine the materials of the case relating to the subject of expert examination; 2) to request to be provided additional information necessary for presenting a report; 3) to be present when investigative actions related to the subject of expert examination are performed, and during the hearing. An expert shall refuse to present his report if the materials submitted to him are insufficient for the purpose required or are outside the scope of his specialist knowledge. In these cases the expert shall make a written statement that he is not able to present a report. Upon establishing that it is necessary to order expert examination, the prosecutor shall duly inform in writing the suspect, his defence counsel and other parties to the proceedings interested in the findings of expert examination and shall indicate the period during which the aforesaid persons may make motions on questions to the expert, appointment of a specific expert and submit additional material for expert examination. Thereafter the prosecutor shall file an application to the pre-trial judge. Motions of the parties to the proceeding or a notice that no motions have been received shall be attached to the application. The pre-trial judge order on having expert examination must be written and reasoned. The order shall indicate: the circumstances of a criminal act; the grounds for ordering expert examination; the expert institution or the expert who will undertake the expert examination; the questions put to the expert; and the materials submitted to the expert. Upon carrying out appropriate examinations, an expert shall draw up a statement of expert examination. The conclusions, inter alia, shall formulate answers to the questions that have been submitted. The conclusions of the expert may not go beyond the scope of his specialist knowledge. Upon receiving the expert’s report, the prosecutor shall send a notification in writing to the suspect, his defence counsel and other parties to the proceedings who have requested expert examination or who made motions for ordering expert examination, and indicate in it the time and place where the report may be studied. A report shall be made to evidence that the expert’s report has been studied.

Investigation Measures 431 15. Infiltration Covert activities of the officers of a pre-trial investigation institution shall be authorised by an order of the pre-trial judge and on condition that there is sufficient information about criminal activities of the person who is subject to a pre-trial investigation. These officers may use a mode of conduct simulating a criminal act. Under Lithuanian criminal procedure this measure may be applied when there is reasonable data of pre-trial investigation that a person has committed a criminal act.63 Such measures may be applied when investigating: 1) serious and very serious crimes; 2) less-serious crimes provided in CC, c XXVIII ‘Crimes and misdemeanours against property, property rights and interests’ and c XXXVII ‘Crimes and misdemeanours against financial system’; 3) crimes provided in CC, Articles 225, 226, 227 and 228 (bribery, trading influence, abuse of office). Officers of a pre-trial investigation institution when conducting actions without disclosing their identity shall be prohibited from inciting or inducing a person to commit a criminal act,64 nor may they resort to procedural coercive measures where a separate decision or an order relating to that has not been made, save in the cases of utmost urgency provided for by the CCP. This measure is executed by the officer of the pre-trial investigation institution. In special cases when there are no other possibilities to detect the persons committing crimes, investigation may be also be conducted by persons who are not officers of a pre-trial investigation. Prosecutor must apply for the authorisation of this measure. The pre-trial judge order authorising officers of a pre-trial investigation institution to perform actions without disclosing their identity must be written and reasoned and must indicate the following: 1) the persons who will perform the undercover actions; 2) the person against whom undercover actions must be performed; 3) information about a criminal act of the person; 4) the authorised actions; 5) the result sought; 6) duration of undercover actions. A record shall be made and must be added to the case-file. Activity of the officers of a pre-trial investigation institution without disclosing their identity (infiltration) is a secret pre-trial investigative action. 16. Controlled Deliveries Controlled delivery directly is provided for in the Law on Operational Activities and may be applied in operational investigation. Controlled delivery in Lithuanian criminal procedure may be covered by more general coercive measures, including covert surveillance (CCP, Article 160) and/or simulation of a criminal act (CCP, Article 159). A prosecutor, upon receiving information from a person about a plan to commit a crime or to participate in such a crime, may file with a pre-trial judge an application to authorise the person to commit actions simulating a criminal act in order to detect the persons who commit crimes. This measure may be applied only for the crimes65 provided in the CC.

63

Goda (n 18) 400. Eg rulings of the Supreme Court of Lithuania in criminal cases no 2K-7-52/2001; No 2K-313/2010; etc. 65 According to CC, Art 10, ‘a crime shall be a dangerous act (act or omission) forbidden under CC and punishable with a custodial sentence’. 64

432

Lithuania

When performing actions simulating a criminal act it shall be prohibited to incite a person to commit a criminal act.66 It must be noted that the case law of the ECtHR,67 as well as that of the Supreme Court of Lithuania,68 contains examples of the improper implementation of this requirement in Lithuania. The main procedural mistakes which have been made by courts when authorising and controlling the actions simulating a criminal act have been documented.69 This measure is executed by the officer of the pre-trial investigation institution. In special cases, when there are no other possibilities of detecting the persons committing crimes, investigation may be also be conducted by persons who are not officers of a pretrial investigation. When authorising actions simulating a criminal act, the pre-trial judge must make an order specifying the following: 1) the person authorised to commit actions simulating a criminal act; 2) the person against whom such actions are to be performed; 3) information about a criminal act of that person; 4) the authorised actions; 5) the result sought. The record of the actions simulating a criminal act shall be made and must be added to the case file. Simulation of a criminal act (controlled delivery) is a secret pre-trial investigative action.

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution CCP, Article 169 provides: [I]f the prosecutor receives a complaint, an application or communication about a criminal act or where the prosecutor himself establishes elements of a criminal act he shall start the pre-trial investigation at the earliest opportunity.

In order to begin the pre-trial investigation there should be at least some initial information to confirm reasonably that the criminal act is likely to have been committed. When it is impossible to ascertain from the complaint, application or report received that the criminal act has been committed, it is first of all sought to identify during pre-trial investigation whether there are elements of a criminal act.70 After the start of the pre-trial investigation the prosecutor either performs the actions of the pre-trial investigation himself, or directs a pre-trial investigation institution to perform them. A decision to commence pre-trial investigation shall be made by the prosecutor, head of a pre-trial investigation institution, or the person authorised by the latter, by writing a direction on the application, report or complaint regarding the criminal act. The person

66 Rulings of the Supreme Court of Lithuania in criminal cases nos 2K-201/2006, 2K-305/2007 and 2K251/2007. 67 Ramanauskas v Lithuania App no 74420/2001 (ECtHR, 5 February 2008). 68 Ruling of the Supreme Court of Lithuania in criminal case no 2A-P-6/2008. 69 G Goda, ‘Nusikalstamos veikos imitacijos modelio kaip teise˙to tyrimo veiksmo atskyrimas nuo draudžiamo provokavimo daryti nusikalstamu˛ veiku˛‘ [2009] Teise˙, no 73, 7-23. 70 Goda (n 18) 425.

Prosecution Measures 433 who has filed a complaint, application or report shall be notified about the pre-trial investigation which has been commenced. When conducting a pre-trial investigation, the pre-trial investigator may adopt any of the measures provided for in the CCP, with the exception of those which may be performed solely by prosecutor or a pre-trial judge. The pre-trial investigator shall: 1) comply with all the instructions of the prosecutor; 2) report on the course of pre-trial investigation to the prosecutor at the time set by the latter. In private indictment cases (11 criminal acts) the proceedings may be instituted only upon an application filed by the victim or his legal representative. There is no pre-trial investigation in such cases. In case of a refusal to commence a pre-trial investigation, the prosecutor or pre-trial investigator shall draw up a reasoned resolution. A copy of the resolution to refuse commencement of a pre-trial investigation shall be sent to the person who has filed the complaint, application or report. The pre-trial investigator shall, within 24 hours, send a copy of the resolution to the prosecutor. The resolution of the pre-trial investigator not to commence the pre-trial investigation may be appealed against to the prosecutor, and the prosecutor’s resolution may be appealed to the pre-trial judge. The pre-trial judge cannot start the pre-trial investigation, but may rescind an unlawful or unfounded resolution not to commence a pre-trial investigation.71 CCP, Article 3 provides that the criminal procedure may not be instituted, and, if instituted, must be terminated in the following cases: 1) where there are no elements of a crime or misdemeanour in the act; 2) where the period of limitation for criminal liability has expired; 3) where a criminal act is committed by a person who, under international law, has immunity from criminal jurisdiction, or where there is no authorisation by a competent body for prosecuting the person when, under law, such an authorisation is obligatory; 4) where a person, at the moment of commission of a criminal act, has not yet reached the age of criminal responsibility; 5) where reconciliation takes place between the victim and the person against whom charges for committing a criminal act have been brought; 6) in the absence of a victim’s complaint or an application of his lawful representative, or a prosecutor’s order to institute the proceeding; 7) where the accused is dead, with the exception of cases when the proceeding is necessary for the rehabilitation of the dead person or for the reopening of a case involving other persons, when new circumstances are discovered; 8) where a court judgment against a person for the same charge or a court order, or a prosecutor’s decision to terminate the procedure for the same reason have become effective; 9) where there is a circumstance removing criminal liability (eg self-defence, necessity, etc).72 If during the hearing the referred circumstances are discovered, the court shall hear the case until the end and shall hand down an acquittal. According to the complaints of participants in criminal proceedings, or on his own initiative, the prosecutor may renew a pre-trial investigation if there is a basis for doing so. The pre-trial investigation, which was suspended according to the resolution of the prosecutor and that suspension was confirmed by the pre-trial judge, can be renewed

71

Goda, Kazlauskas, Kuconis (n 1) 311. The Criminal Chamber of the Supreme Court of Lithuania has issued methodological review on court jurisprudence of these aspects: ‘Baudžiamojo proceso kodekso normu˛, nustatancˇiu˛ aplinkybes, de˙l kuriu˛ baudžiamasis procesas negalimas, teismu˛ praktikoje apžvalga’, Lietuvos Aukšcˇiausiasis Teismas, Teismu˛ praktika, 2010, Nr 33, 403-48. 72

434

Lithuania

when the pre-trial judge confirms the decision of the prosecutor to renew the pre-trial investigation. On the renewal of the pre-trial investigation the suspect, his representative, defence counsel, victims and civil claimant and their representatives have to be reported. These individuals have the right to appeal the ruling to renew the pre-trial investigation. If the superior prosecutor dismisses the complaint, his decision may be appealed against with the pre-trial judge. The decision on the appeal of the pre-trial judge can be appealed against with the superior court. The decision of the superior court is final and not the subject to appeal. The pre-trial judge may only annul a decision of the prosecutor to renew (or not renew) the commencement of pre-trial investigation by pointing out in his/her procedural decision the infringements made by the pre-trial investigator or the prosecutor, and suggesting they be eliminated. CCP, Article 212 states that the pre-trial investigation shall be terminated: 1) where it transpires during the pre-trial investigation that there are circumstances provided for in CCP, Article 3; 2) where insufficient information is gathered during the pre-trial investigation to prove the suspect’s culpability in committing a criminal act; 3) where it is established pursuant to CC, Article 36 that the person or the act committed by him has ceased to be dangerous, owing to a change of circumstances; 4) where it is established that under CC, Article 37 the criminal activity is not dangerous owing to its insignificance; 5) where under CC, Article 38 there is a reconciliation between the suspect and the victim; 6) where under CC, Article 40 bail was imposed; 7) where under CC, Article 39(1) the suspect helped detect the activities of a criminal association; 8) where, under the CC, there are circumstances negating criminal liability; 9) where several criminal acts are committed;73 10) where the duration of the pre-trial investigation is too long. The pre-trial investigation shall be terminated by the prosecutor’s decision (paras 1 and 2); in other cases, by the prosecutor’s decision, which must be confirmed by the pre-trial judge. Termination of the pre-trial investigation shall be communicated by sending the copies of the decision to the suspect, his representative, defence counsel, victim and other parties to the proceeding. CCP, Article 214 prescribes that where the pre-trial investigation is terminated by the prosecutor’s decision, this decision may be appealed by the suspect, his representative, defence counsel, victim and other parties to the proceedings to a higher prosecutor, then to a pre-trial judge and, eventually, to a higher court. If the prosecutor’s decision to terminate the pre-trial investigation has been approved by the pre-trial judge, the decision of the pretrial judge to approve the prosecutor’s decision may be directly appealed to a higher court. The decision of the higher court is final in all cases. Complaints regarding the prosecutor’s decision may be filed within 14 days of the decision or order. Persons having the right to lodge a complaint, who for valid reasons miss the appeal deadline, can request the prosecutor or the pre-trial judge to renew the missed deadline. The request for renewal of that term cannot be filed more than six months after the adoption of the contested decision.

73 Article 213 of the CCP provide that ‘where the suspect is suspected of having committed several criminal acts one or several of which are misdemeanours or minor crimes while the other act or acts are grave or very grave crimes, the prosecutor may terminate the pre-trial investigation of misdemeanours or minor crimes’.

Prosecution Measures 435 2. Multilateral Disposal of the Case (Including Diversion and Remedy Against it) CC, Chapter VI ‘Release from criminal responsibility’ (Articles 37-40) provides six diversionary measures in Lithuania: 1) release from criminal liability when a person or criminal act loses its dangerousness; 2) release from criminal liability due to minor relevance of a crime, 3) release from criminal liability upon reconciliation between the offender and the victim, 4) release from criminal liability on the basis of mitigating circumstances, 5) release from criminal liability when a person has actively assisted in detecting criminal acts committed by members of an organised group or a criminal association, 6) release from criminal liability on bail. According to court statistics74 the most common release from criminal liability is upon reconciliation between the offender and the victim. Release from criminal liability upon reconciliation between the offender and the victim may be applied for a misdemeanour, a negligent crime or a minor or less serious premeditated crime. The conditions are that the offender: 1) has confessed to commission of the criminal act, 2) has voluntarily compensated for or eliminated the damage incurred to a natural or legal person, or agreed on the compensation for or elimination of this damage, 3) reconciles with the victim or a representative of a state or legal person. In addition there must be a basis for believing that he will commit no further criminal acts. A repeat offender, a dangerous repeat offender, also a person who has on a separate occasion less than four years previously been released from criminal liability on the basis of reconciliation with the victim, cannot be released from criminal liability. The legal situation concerning diversionary measures for legal persons is still unclear under the CC, as there is no direct possibility to apply the diversionary measures for legal persons. However, the Constitutional Court has pointed out: ‘the fact that it is not the criteria according to which the punishment is selected (including diversionary measure) for the legal person, does not mean that the court, having regard to other provisions CC (eg the aim of the punishment, sentencing rules, etc), cannot impose a justified punishment (including diversionary measure) upon the legal person.75 The pre-trial judge or the court authorises a diversionary measure. The authorisation must be written and reasoned. Documentation of the diversionary measures depends on the phase of the criminal procedure at which the diversionary measure is applied: in the pre-trial investigation phase it is by the resolution of the pre-trial judge; in the court trial phase it is by the court judgment. A transcript of the judgment shall be served on the accused immediately after pronouncement of the judgment, or sent to the accused within five days from the pronouncement of the judgment (if the accused did not participate during pronouncement of the judgment). The CCP does not require that the victim must be notified of the pre-trial judge resolution or court judgment on application of a diversionary measure. Over the last few years the courts have done so on their own motion or at the request of the victim (or his representative).

74 5,186 persons were released from criminal responsibility upon reconciliation between the offender and the victim in 2004 (91% of all persons released from criminal responsibility): A Baranskaite˙, ‘Humanizmo principas atleidimo nuo baudžiamosios atsakomybe˙s instituto istorine˙s raidos kontekste‘ (2009) Socialiniu˛ mokslu˛ studijos, Nr 4(4), 189. 75 Konstitucinio Teismo 2009 m birželio 9 d nutarimas, ‘De˙l Baudžiamojo kodekso 20 ir 43 straipsniu˛ atitikties Konstitucijai’, Valstybe˙s žinios, 2009, Nr 69-2798.

436

Lithuania

The complaint against the pre-trial judge resolution or appeal complaint against the court judgment may be lodged by the accused (sentenced person) and/or his defence counsel, or by the victim and/or his representative, or by the prosecutor.

3. Committing to Trial and Presenting the Case in Court Where the prosecutor is satisfied that sufficient evidence has been gathered during the pre-trial investigation as to the culpability of the suspect for committing a criminal act, he shall notify the suspect, his defence counsel, the victim, the plaintiff and the accused in the civil action and their representatives that the pre-trial investigation is finished and they have a right to examine the case file and make motions for additional pre-trial investigation actions. The prosecutor must pass a reasoned decision on any motions for additional pre-trial investigation actions. Where the pre-trial investigation or the majority of its actions was conducted by a pretrial investigation institution, the prosecutor may order that the pre-trial investigation institution submit a short written report about the pre-trial investigation it carried out.76 Afterwards the prosecutor shall draft the indictment. The indictment shall state: 1) the name of the court which will hear the criminal case; 2) the name, surname, date of birth, marital status, profession, workplace of the suspect, and, at the prosecutor’s discretion, any other personal information; 3) a brief description of the criminal act: the place, time, forms, motives, consequences and other important circumstances; information about the victim; extenuating or aggravating circumstances for the suspect; 4) the basic information on which the prosecution is based; 5) the article (paragraph and subparagraph) of the CC creating liability for the committed act; 6) the name and surname of the defence counsel of the suspect if he had a counsel during the pre-trial investigation; 7) the account of the suspect, if he rejects the accusation.77 The prosecutor shall also give or forward to the accused a copy of the indictment. The prosecutor shall transfer the indictment together with the case file to the court having jurisdiction over the case. The prosecutor shall only transfer to the court the material which, in his opinion, will be necessary for the hearing. The prosecutor shall have no right to transfer to the court material which was gathered at the request of the suspect, his defence counsel or the victim. The chairman of the court, the deputy chairman or the chairman of the criminal division shall, within two days of the court receiving the case, appoint the judges who will prepare the case for the hearing, and after its referral for trial, will hear the case. Upon examining the case, the judge may enter an order: a) to submit the case for trial; b) to refer the case according to jurisdiction, to separate or to defer the case; c) to discontinue the case; d) to refer the case back to the prosecutor; e) to postpone the trial; f) to instruct the pre-trial judge or prosecutor to perform pre-trial investigation action or to organise the performance of such action; g) to terminate the case.

76 The Prosecutor General has adopted methodological recommendation on this issue: Generalinio prokuroro ˛i sakymas ‘De˙l Rekomendacijos de˙l ataskaitos, pateikiamos baigus ikiteismini˛ tyrima˛ (Baudžiamojo proceso kodekso 218 straipsnis), surašymo’, Valstybe˙s žinios, 2003, Nr 39-1805. 77 The Prosecutor General has adopted methodological recommendation on this issue: Generalinio prokuroro ˛i sakymas ‘De˙l Rekomendacijos de˙l kaltinamojo akto surašymo’, Valstybe˙s žinios, 2003, Nr 39-1805.

Evidence 437 The issue of the referral of the case for trial must be determined by the judge within 15 days from the date of receipt of the case by the court where the accused is in pre-trial detention, and within one month where the accused is free. When referring the case for trial the judge shall formulate, in his order, the decision to refer the case for trial, indicate the name and surname of the accused, the criminal law under which his criminal act has been qualified, the date and place of the trial, and decide the issue of the persons who are to be summonsed to the trial as the accused, his legal representative, the victim, the plaintiff and the accused in a civil action and their representatives, the witnesses and experts, etc. The hearing shall take place with the participation of the prosecutor, the victim and his agent, the accused, his legal representative and defence counsel, the plaintiff and the accused in a civil action and their agents. During the hearing several prosecutors may be present, and the accused may be defended by several defence counsels. In the event of non-appearance of the prosecutor or defence counsel, and where there is no possibility to replace them during the hearing, the court shall adjourn or the hearing of the case shall be deferred. The hearing shall involve only those accused and only those criminal acts on the grounds of which the case is committed for trial. Only the prosecutor may present the criminal case in court in Lithuania. In private indictment cases (11 criminal acts) the proceedings may be instituted only after an application has been filed by the victim or his legal representative. In private indictment cases the application shall be filed and the charge shall be supported in the court by the victim as the private prosecutor.

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence CCP, Article 20 provides that: [E]vidence in criminal proceedings shall be the material obtained in the manner prescribed by law. Admissibility of the material obtained shall be determined in every case by the court or judge who is seized of the case.

The Supreme Court of Lithuania has noted that ‘the admission of the data collected during pre-trial investigation as evidence is an exclusive competence of the court’.78 Only material which proves or disproves at least one circumstance relevant for a fair disposition of the case may be regarded as evidence. ‘Only material which is obtained by lawful means and may be validated by the procedural actions laid down in the CCP may be considered as evidence’.79 CCP, Article 301 states that: [T]he judgment of conviction may not be based only on the testimony given by classified victims and witnesses. The judgment of conviction may be based on the testimony of the above persons only in case such testimony is corroborated by other evidence.80

78 79 80

Ruling of the Supreme Court of Lithuania in criminal case no 2K-251/2010. Ruling of the Supreme Court of Lithuania in criminal case no 2K-239/2010. Ruling of the Supreme Court of Lithuania in criminal case no 2K-386/2010.

438

Lithuania

In addition, the Supreme Court of Lithuania has stressed that ‘no evidence is given any priority in accordance with the provisions of the CCP’.81 According to the review of the Criminal Cases Division of the Supreme Court of Lithuania regarding the application of the rules on evidence, ‘data can be recognised as evidence, if it has been obtained in accordance with the CCP, other laws (eg the Law on Police Activities, the Law on the Bar, etc) or legal acts implementing the laws’.82 Following the jurisprudence of the Supreme Court of Lithuania, when deciding whether to accept data as evidence, the court should determine whether the means by which the data has been obtained are in conformity with the requirements of law and check whether they have been verified by procedural actions provided for in the CCP.83 If the relevant data has been provided by private parties (eg the suspect, defence counsel, the victim or his/her representative, or any other natural or legal person), the court should ascertain whether the means to obtain the data are not prohibited by law. Information provided by private individuals shall not be recognised as evidence only when it has been received in a manner directly prohibited by law. In cases where the relevant data has been collected by public authorities or pre-trial investigator, prosecutor, pre-trial judge or the court, it is necessary to determine whether it has been obtained in the manner prescribed by law without any breach of the procedure for obtaining data established by law.84 Data collected by public authorities or officials by other means than are provided for in law shall not be recognised as evidence, no matter how persuasive it may be determining the circumstances relevant for the case. A breach of the data collection procedure per se does not mean that such data may no longer be recognised as evidence. In this case it is necessary to assess: 1) whether the violation affected the reliability of the data; and 2) whether the violation deprived or restricted the rights of the accused. The data received in breach of the procedure for their collection, which raises doubts as to their reliability and such doubts cannot be eliminated by performing other actions envisaged in the CCP, shall not be recognised as evidence. The court may recognise as evidence data received in breach of procedural violations, if it does not affect the reliability of the data and does not deprive the accused of his/her rights or constrain such rights substantially.85 If data collection irregularities deny the accused his/her rights, or limit them substantially, such data shall not be recognised as evidence, regardless that there is no doubt as to its reliability. Although the CCP does not formulate expressis verbis, the data collected contrary to the legal rules of evidence shall nevertheless be considered as inadmissible evidence. The court cannot rely on such data in conviction. The CCP does not specify any general procedure as to what should be done with the data recognised as inadmissible evidence. However, in some cases, the CCP lays down special rules, eg in the case of unauthorised seizure of articles or documents, they shall be returned to the person from whom they came, and cannot be relied on in conviction (eg CCP, Article 145).

81

Ruling of the Supreme Court of Lithuania in criminal case no 2K-218/2010. Lietuvos Aukšcˇiausiojo Teismo Baudžiamu˛ju˛ bylu˛ skyriaus Baudžiamojo proceso kodekso normu˛, reglamentuojancˇiu˛ ˛irodine˙jima˛ taikymo Teismu˛ praktikoje apžvalga, Teismu˛ praktika, Nr 27, Vilnius, 2007, 322, 325. 83 Ibid 328. 84 Ibid 329. 85 Ibid 330-31. 82

Evidence 439 2. Admissibility of Written Reports CCP, Article 242 provides for the principle of orality in Lithuanian criminal proceedings. This principle means that: [T]he court first instance shall directly examine evidence in criminal case: question defendants, victims, witnesses, listen to specialist and expert findings and explanations, inspect material evidence, read out records and any other documents. Persons questioned during pre-trial investigation in a trial hearing shall give their testimony and explanations orally.

Accordingly, ‘the court shall be obliged to obtain factual information “first-hand”’.86 The principle of orality also means that the persons who gave testimony during the pretrial investigation should be called to give testimony at a court hearing. Testimony given earlier by the defendant, victim or witness to a pre-trial judge or at a court hearing may be read out at the trial hearing, and audio and video recordings of such inquiries may be played if this defendant, victim or witness: 1) is dead, or absent from the trial hearing due to important reasons; 2) refuses to give or avoids giving evidence, or submits that he/she does not remember some circumstances that were previously testified; 3) at the hearing, gives evidence, which is substantially different from that given during the pre-trial investigation or earlier at the hearing. The Supreme Court of Lithuania has noted that ‘the testimony that is read aloud is not an independent source of evidence—it can help verifying other evidence of the case’.87 In addition, the testimony of a person questioned in court after the postponement or adjournment of the case hearing, as well as the testimony given during pre-trial investigation to the pre-trial judge by a witness not called by a court ruling to the trial hearing by reason of anonymity or because he/she has not attained the age of 18 years, may be read out in the trial hearing. Before playing an audio or video recording, the testimony of the defendant, victim or witness contained in the relevant record of examination conducted by the pre-trial judge or in the trial hearing shall first be read out. In order to examine evidence in criminal proceedings, the testimony given by the defendant, victim and witness to a pre-trial judge or prosecutor may be read out. When the earlier judgment or court order (ruling) is quashed, or when proceedings are again pending before the court, the victims and witnesses earlier questioned in the court hearing may not be invited for repeated questioning and their testimony given at the earlier hearing may be read out, if participants in the proceedings consent and do not wish to reinterview these witnesses and victims.

3. Status of Evidence Obtained in Another Member States The CCP does not classify evidence according the place where it has been obtained, therefore the use of all evidence (whether obtained abroad or in Lithuania) is the same in Lithuanian courts. Lithuanian criminal procedure88 and jurisprudence require that the evidence be

86 87 88

Goda, Kazlauskas, Kuconis (n 1) 389. Ruling of the Supreme Court of Lithuania in criminal case no 2K-179/2010. Goda, Kazlauskas, Kuconis (n 1) 171.

440

Lithuania

gathered lawfully, pursuant to the rules applicable in the country where it is taken. Thus, if evidence was obtained in conformity with the rules applicable in the country where it was taken, the evidence would be admissible in Lithuania. This rule would possibly apply also if the evidence was lawfully obtained abroad pursuant to the local rules, while contradicting the laws of Lithuania (except for violations of the Constitution or essential standards of the criminal procedure of Lithuania). It is noteworthy that the conventions on mutual assistance in criminal matters as well as Lithuanian bilateral treaties on mutual assistance in criminal matters envisage the possibility of requesting the state, in which the evidence has to be taken, to comply with appropriate procedures for the taking of this evidence. In the event that the evidence was obtained in breach of the rules applicable in the country where the evidence has been obtained, the court jurisprudence would presumably follow the same rules as on the evidence obtained in Lithuania, in breach of the rules relating thereto.

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence Article 31 of the Constitution states that: [E]very person shall be presumed innocent until proven guilty according to the procedure established by law and until declared guilty by an effective court sentence.89

A similar rule is contained in CCP, Article 44: [E]veryone charged with a criminal act shall be presumed innocent until proven guilty in accordance with the procedure prescribed by this Code and established by an effective court sentence.

In addition, CCP, Article 2 prescribes that: [E]very time when elements of a criminal act are discovered, the prosecutor and the institutions of pre-trial investigation shall, within the limits of their competence, take all measures provided for by the law to conduct a pre-trial investigation and ascertain that the criminal act has been committed.

The theory of Lithuanian criminal procedure states that ‘the burden of proof … lies with state officials. The suspect (accused) or his/her defence counsel may not be forced to prove innocence (eg to provide evidence of innocence)’.90 Following the provisions of the CCP and the case law, the fundamental principle that emerges is that the defendant will always receive the benefit of the doubt.91 The Senate of the Supreme Court of Lithuania has noted that ‘any doubts are treated in favour of the defendant, if the court, having exhausted all possibilities cannot remove them’.92 These rules are strictly observed in court jurisprudence, and the Supreme Court of Lithuania has stated that ‘conviction cannot be 89 The ECtHR found a violation of the presumption of innocence in the case A Butkevicˇius v Lithuania App no 42095/98, due to the fact that ‘high level state officials pronounced that the person is criminal before the court judgment’. 90 Goda, Kazlauskas, Kuconis (n 1) 174. 91 Ibid 175. 92 Lietuvos Aukšcˇiausiojo Teismo Teise˙ju˛ Senato nutarimas Nr 40 ‘De˙l teismu˛ praktikos taikant Baudžiamojo proceso kodekso normas, reglamentuojancˇias nuosprendžio surašyma˛’, Teismu˛ praktika, Nr 19, 202-39.

The Rights of the Suspect/Defendant During Investigation and Prosecution 441 based on conjecture or assumptions. It can be based on the evidence which is sufficient to indisputable conclusions about the guilt. All the doubts that cannot be removed during court hearings are treated in favour of the defendant’.93 The jurisprudence of courts and the theory of Lithuanian criminal procedure state that ‘when investigating the case, neither the court, nor the pre-trial investigator or prosecutor shall have the right to cast the burden of proof upon the suspect or the accused’.94 General requirements for judgments are laid down in the CCP, Article 301 of which states that ‘[T]he judgment shall be substantiated by the evidence examined at the trial hearing’. CCP, Article 305 requires the court to state in its judgment: 1) the circumstances of the criminal act found to be proven ...; 2) the evidence upon which the court conclusions are based and the grounds on which the court ruled other evidence irrelevant or objected to its admissibility.

The Senate of the Supreme Court of Lithuania has pointed out that ‘judgment shall be lawful and reasonable. The judgment is reasonable, when the court makes it findings as to the criminal act, the defendant’s guilt or innocence, penalty, etc based on the fully and impartially investigated and properly assessed evidence’. The judgment shall be based solely on the evidence which has been tested and verified at trial.95 The court should state in its judgment that the evidence is sufficient with which to ascertain accurately any matter falling within the context of burden of proof. Convictions cannot be based on assumptions, eg the Supreme Court of Lithuania has noted that ‘judgment should be quashed, because it derived from conclusions of the examination, which was partly based on assumptions’.96 The court’s opinion in assessing the evidence should be well-founded. The Senate of the Supreme Court of Lithuania has noted that ‘the court’s judgment may not be based solely on a confession of the accused or on the testimony of classified victims or witnesses, if they have not been validated by other evidence’.97

2. The Right of the Defence to Undertake Investigative Measures/Acts in Their Own Right CCP, Article 48 stipulates that the defence counsel has the right [T]o gather independently the data necessary for the defence which may be obtained by the counsel without procedural coercive measures: to obtain from enterprises, institutions, organisations and individuals documents and objects necessary for the defence, to talk with individuals about the circumstances of the incident known to them, to inspect and take photos of the scene of the

93

Ruling of the Supreme Court of Lithuania in criminal case no 2K-374/2010. For more, see PJ Cullen, Enlarging the fight against fraud in the European Union: penal and administrative sanctions, settlement, whistle-blowing and Corpus Juris in the Candidate Countries (Cologne, Bundesanzeiger, 2003) 215–35; Goda (n 18) 91–93; etc. 95 Ruling of the Supreme Court of Lithuania in criminal case no 2K-393/2010. 96 Ruling of the Supreme Court of Lithuania in criminal case no 2K-218/2010. 97 Lietuvos Aukšcˇiausiojo Teismo Teise˙ju˛ Senato nutarimas Nr 40 ‘De˙l teismu˛ praktikos taikant Baudžiamojo proceso kodekso normas, reglamentuojancˇias nuosprendžio surašyma˛’, Teismu˛ praktika, Nr 19, 202-239. 94

442

Lithuania

criminal act or means of transport, or record in any other way the information necessary for the defence.

It is noted in interpretation of this right, in the theory of the Lithuanian criminal procedure, that the defence counsel may collect, capture and submit such data acquitting the defendant and mitigating his/her criminal responsibility, which has been lawfully obtained without recourse to procedural coercive measures.98 The defence counsel has the right to receive documents or other information from state institutions, municipalities, private or legal persons, etc,99 as well as the right to talk, eg with witnesses, experts, victims and other parties to the criminal case, irrespective of whether they have been questioned by any pretrial investigator, prosecutor or pre-trial judge.100 Case law corroborates the above-mentioned theoretical provisions, eg the Supreme Court of Lithuania has stated that ‘privately made sound recording, which confirms the circumstances relevant to the case, may be recognised as evidence’.101

3. The Right to Legal Assistance The suspect or the accused have a full right to a defence counsel. CCP, Article 44 states that: [E]veryone may defend himself/herself in person or through legal assistance of his/her own choosing or, if he/she has no sufficient means to pay for legal assistance, to be given it free in accordance with the procedure provided for by the law regulating the provision of legal aid guaranteed by the State.

The suspect himself expresses his own wish to have or not to have the defence counsel in the record. Notwithstanding this, a defence counsel shall be obligatory: 1) in cases where the suspect is a minor; 2) in cases involving blind, deaf, mute and other persons who because of physical or mental disabilities are not able to exercise their right to defence counsel; 3) in cases involving persons who do not know the language of the proceedings; 4) when there is a conflict of interests between the defence of the suspects where at least one of the suspects has a defence counsel; 5) in cases involving crimes punishable by life imprisonment; 6) during the court hearing when the accused person is in absentia; 7) in cases where the accused is in pre-trial detention; 8) in case of extradition or EAW; 9) during the court hearing in expedited procedure. The pre-trial investigator, the prosecutor or the court shall have the right to determine that the participation of defence counsel is obligatory where, in their opinion, the rights of the suspect or the accused will not be adequately defended without legal assistance. The suspect or the accused shall be entitled to waive the right to defence counsel, or by reasoned request to ask to replace the appointed defence counsel at any stage of the proceedings, with the exception of cases where the court hearing is in absentia. Waiver of the right to defence counsel shall be permitted only on the initiative of the suspect or the accused. Waiver of this right shall be entered in the record.

98 99 100 101

Goda (n 18) 119–20. Advokatu¯ros ˛i statymas, Valstybe˙s Žinios, 2004, Nr 50-1632. Goda, Kazlauskas, Kuconis (n 1) 107. Ruling of the Supreme Court of Lithuania in criminal case no 2K-12/2010.

The Rights of the Suspect/Defendant During Investigation and Prosecution 443 A declaration waiving the right to defence counsel made by a minor or a person who, because of physical and mental disabilities, is unable to exercise his/her right to defence, or by a person who does not know the language in which the proceedings are conducted, or by a person who is charged for the commission of a serious or very serious crime, need not be binding on the pre-trial investigation officer, the prosecutor or the court. A refusal to have defence counsel shall not deprive the suspect, the accused or the convicted person of the right to have defence counsel again at any stage of the proceedings. The CCP states that defence counsel shall have the right: 1) to examine the record of the arrest of the suspect; 2) to be present during questioning of the suspect; 3) to meet, from the very first questioning of the suspect, with the arrested or detained suspect without the presence of any other person, without any limitations on the number or duration of meetings; 4) to take part in gathering evidence during the procedural actions involving the suspect as well as during the procedural actions conducted on the motion of the suspect or his defence counsel; 5) by leave of the pre-trial investigator, the prosecutor or the judge, to take part in any other actions of gathering evidence; etc. According to the CCP, a defence counsel need not participate in pre-trial investigation actions involving the suspect apart from those cases when it is obligatory (eg imposition of pre-trial detention, questioning a juvenile suspect, confrontation with juvenile suspect, etc). In all other instances the defence counsel has the right to participate in pre-trial investigation actions involving the suspect.

4. The Right to have Another Person Informed About One’s Arrest The prosecutor should notify a relative indicated by the arrested person. If the arrested person does not specify a particular person, the prosecutor should notify any relative on his/ her own initiative, unless the arrested person explicitly states that such notification might endanger his/her relatives. The arrested person should also be afforded an opportunity to inform his/her relatives himself/herself. When pre-trial detention is ordered, the prosecutor should notify the relative indicated by the detainee or, if the detainee has not specified a specific person, should notify any relative on his/her own initiative, unless the detainee explicitly states that such notification might endanger his/her relatives. The detainee should also have an opportunity to inform his/her relatives himself/herself. The Committee for the Prevention of Torture stated in its Report of 2004 that ‘the right of notification of custody often was not fully in practice’.102 The CCP does not lay down any rules as to when and how the suspect (the accused) should be informed of this right, or as to how relatives should be notified of the arrest or pre-trial detention. Lithuanian criminal procedure is that the obligation to notify the relative about the arrest or pre-trial detention may be fulfilled, eg by a telephone call, and this should be done as soon as possible.103

102 Committee for the Prevention of Torture (2008): Report to the Lithuanian Government on the visit to Lithuania carried out by the Committee for the Prevention of Torture from 17 to 24 February 2004, para 25. 103 Goda (n 18) 330, 356.

444

Lithuania

5. The Right to Ask for a Special Act of Investigation CCP, Article 20 provides that the suspect shall have the right ‘to make motions’. The right to make motions inter alia includes a request to carry out the investigative action. CCP, Article 178 CCP stipulates that the suspect and/or his/her defence counsel shall have the right to request the prosecutor in writing to carry out the investigative actions provided for in the CCP. Upon receipt of such a request, the prosecutor may: 1) perform such actions himself/herself; 2) instruct the pre-trial investigation institution to perform the requested actions; 3) decline to perform the requested actions. If declining to perform the requested actions, the prosecutor should document it in the form of a decision. The person who submitted a request shall have the right, within seven days from receiving it, to lodge a complaint against the decision to the pre-trial judge. The pre-trial judge should examine the complaint within three days. The decision of the judge shall be final. If the judge decides that the actions requested by the suspect (or defence counsel) should be performed, the prosecutor should perform the actions without any delay or direct the pre-trial investigation institution to perform them.

6. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement CCP, Article 188 states that ‘the record of the suspect’s examination shall be made following the requirements laid down in Article 179 CCP. The testimony of the suspect shall be entered in the record in the first person singular and be as much verbatim as possible. Where necessary, the questions put to the suspect and his/her replies shall be noted’. The suspect should read the record after his/her interview and sign each page of the record. The accuracy and fairness of the whole record should be confirmed by the suspect by signing and writing at the end of the record: ‘I have read the record, my statements appear on the record correctly’. CCP, Article 179 provides that: [R]ecords shall indicate … statements of the persons who participated in the performance of the investigative actions.

If the suspect testimony was not recorded fully and accurately, the suspect or his/her defence counsel should indicate this in the same record under the paragraph ‘submissions’. The suspect has the right to write personally which of his/her explanations have been recorded incompletely or inaccurately. The suspect has the right to write additional accurate, complete and correct explanations in the record himself/herself. Such write-up by the suspect is an integral part of the record and, therefore, part of the testimony of the suspect.

7. The Right to Refer to Documents or to Consult Relevant Legal Acts During Interview The CCP provisions (governing the questioning of a suspect during pre-trial investigation or trial hearing) do not provide expressis verbis the suspect’s right to refer to documents or to consult relevant legal acts during the interview. It is true that the CCP does not prohibit

The Rights of the Suspect/Defendant During Investigation and Prosecution 445 this. It should be noted that CCP, Article 281 provides that when giving testimony in the court hearing, the witness may refer to his/her records where the testimony relates to any numerical or other data difficult to memorise. At the request of the presiding judge or other parties, such records shall be presented for their inspection. The witness shall be allowed to read the documents in his/her possession, if they concern the given testimony. The documents shall be presented to the presiding judge and the parties to the proceedings and may be attached to the case file by a court order. It is assumed that the same rule would be applicable to the testimony given by the suspect (accused) during a court hearing.

8. The Right to be Informed About the Place of Detention The Law on Pre-Trial Detention104 stipulates that detained persons shall have the right (upon arrival at the pre-trial detention centre) to receive written information about the welfare procedures and confinement conditions in the pre-trial detention establishment, about the rights, obligations and restrictions that apply to them. This information shall be communicated in Lithuanian or in the mother tongue or other language that the detainee can understand. In addition, the administration of a remand prison should ensure that the information defined by laws and regulations of Lithuania regarding detainees’ rights, obligations, prohibitions and agenda should be available in each cell. Employees of the remand prison visiting the cells of the arrested should clarify the procedures and conditions, rights, obligations and restrictions that apply to the detainees, if necessary.

9. The Right to be Informed of the Charges CCP, Article 187 sets forth that before the start of the first questioning, the suspect shall receive a suspicion notice.105 Once the pre-trial investigation is finished, the prosecutor shall draft an indictment.106 The prosecutor shall also hand in or forward to the accused a copy of the indictment. It is highly likely that a failure to respect the right of the suspect to be informed about charges during any action of pre-trial investigation (eg questioning of the suspect, etc) would be considered a breach of the data collection procedure resulting in the denial or substantial constraint of the rights of the suspect (or the accused). In such a case, the data collected by means of such investigative action would not be recognised as evidence. For example, the Supreme Court of Lithuania has quashed a judgment on the grounds that ‘serving the indictment on the accused in Russian only during the second court hearing while the testimony of the witness, on the grounds of which the judgment of conviction has been made, was examined during the first court hearing, has infringed the requirement of the CCP to notify the accused “promptly and thoroughly of the type and grounds of the charges” in the language he/she understands’.107 104 105 106 107

Sue˙mimo vykdymo ˛i statymas, Valstybe˙s Žinios, 2008, Nr 81-3172. On the content of the suspicion notice, see section B.2. On the content of the indictment, see section C.3. Ruling of the Supreme Court of Lithuania in criminal case no 2K-562/2004.

446

Lithuania

In addition, the Supreme Court of Lithuania has pointed out that ‘in case the indictment does not state or incorrectly states all relevant factual circumstances, which shall be consistent with all the elements of the criminal act (the place, time, methods, consequences of the act, etc) leading to the interference with the right of the accused to defence, it should be considered that the indictment does not conform to the requirements of the CCP’.108

10. Access to the File During Pre-Trial Proceedings The ‘file’ (case file) in Lithuanian criminal procedure means the full documentation (material) of the pre-trial investigation. The CCP provides for the right to have access to the file during pre-trial investigation for the suspect, defence counsel and victim. The case file may be accessed by the prosecutor, legal representatives of the accused and victim, the plaintiff and the accused in a civil action, and by the legal representatives of the plaintiff and accused in a civil action. At any moment during pre-trial investigation, the suspect and his/her defence counsel shall have the right to examine the material of the pre-trial investigation, as well as make copies of or relevant extracts from the material of the pre-trial investigation. Where the suspect is in custody, only his/her defence counsel shall have the right of access to the material of the pre-trial investigation. The suspect or his/her defence counsel shall submit an application to grant access (make copies or relevant extracts) to the material of the pre-trial investigation to the prosecutor. The prosecutor shall allow access to all the material of the pre-trial investigation as well as allowing the making of copies of (relevant extracts from) the material of the pre-trial investigation when the pre-trial investigation is finished and an indictment is under preparation. When the case file has been received at the court, the prosecutor, the accused, his/her legal representative, the defence counsel as well as the victim, the plaintiff and the accused in a civil action and their representatives shall have the right of access to all the materials of the case-file and shall be allowed to make copies of the material, or appropriate extracts, from the pre-trial investigation. If the accused is in detention, his/her defence counsel shall have the right to examine the case and make copies or appropriate extracts. If the accused has no defence counsel, the accused shall exercise the above-mentioned right. If the accused has refused to have a defence counsel, he/she shall have the right of access to the case file as well as the right to make copies of or extracts from the material of the case file. A defence counsel to the accused who has none shall be appointed by the court. The defence counsel shall inform the accused and notify the court after he/she accesses the case file. It is possible to postpone access to the case-file during the pre-trial investigation. The prosecutor shall have the right to deny the suspect or his/her defence counsel access to all or part of the material of the pre-trial investigation during the pre-trial investigation, if such an examination is likely to undermine the favourable outcome of the pre-trial investigation. To refuse access to the whole or part of the material of the pre-trial investigation, the prosecutor shall pass a decision which may, within seven days, be appealed by the suspect or his/her defence counsel with the pre-trial judge. The pre-trial judge shall examine such an appeal within three days and adopt the decision (ruling), which shall be final.

108

Ruling of the Supreme Court of Lithuania in criminal case no 2K-393/2010.

The Rights of the Suspect/Defendant During Investigation and Prosecution 447 The Prosecutor General Recommendations109 prescribe that a request for access may be dismissed due to likely damage to the pre-trial success, if there are contradictions between the testimony of the parties; if the pre-trial data have not been formalised yet; if the application relates to access to data on juvenile victims and suspects; if the application relates to access to data on the use of coercive measures (secret pre-trial investigative actions); if the application relates to access to the data and locations of witnesses, victims, experts, specialists and others, etc. Copies or extracts of the material of the pre-trial investigation can be made and transmitted to the suspect (accused). The copies of the material of the pre-trial investigation made during pre-trial investigation and after it (but before the criminal case is transmitted to the court) are free of charge. The costs of copies when the criminal case is in the court are borne by the suspect (accused) or his/her defence counsel. It should be noted that CCP, Article 172 provides that: [I]nformation about the pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s leave and only to such an extent as is determined as permissible. It is prohibited to make public information about juvenile suspects and victims. When necessary, a prosecutor or a pre-trial judge shall warn the parties to the proceedings or other persons who were witnesses to the procedural actions of the pre-trial proceedings that it is not permissible, without his/her authorisation, to make the information about the pre-trial investigation public. In such cases a person shall be warned and shall attest it by his/her signature about his/her liability under Art 247 of the CC.

11. The Right to Translator Assistance for the Suspect During the Pre-Trial Procedure The Constitution, the Law on the State Language110 and the CCP lay down safeguards for suspects or other parties who do not know the Lithuanian language. The Law on the State Language states that participants in the legal proceedings, who do not know the state language (ie, Lithuanian), shall be provided with the services of an interpreter free of charge. The Constitution and the CCP guarantee them a right to make statements and explanations, lodge requests and appeals, as well as speak in their native language or the language they know. When consulting the case file, they shall have the right to the services of an interpreter free of charge. All case file documents served on the suspect, accused or third party must be translated into his/her native language or into the language they know. The costs of interpretation (translation) shall be paid by the State. All case file documents served on the suspect, accused or third party (if they do not know the state (ie Lithuanian) language) have to be translated into their native language or into the language they know. The Supreme Court of Lithuania has acknowledged that ‘the rights of the accused have been violated because she was unable to present arguments in the Russian language during the trial; besides, she has not received the court’s decision on the appeal in the Russian language’.111 109 Generalinio prokuroro ˛ i sakymas, ‘De˙l Rekomendacijos de˙l proceso dalyviu˛ teise˙s susipažinti su bylos medžiaga ikiteisminio tyrimo metu’, Valstybe˙s Žinios, 2003, Nr 39-1807. 110 Valstybine˙s kalbos ˛ i statymas,Valstybe˙s Žinios, 1995, Nr 15-344. 111 Rulings of the Supreme Court of Lithuania in criminal cases nos 2K-562/2004 and 2K-620/2006.

448

Lithuania

CCP, Article 43 provides that: [A] translator (interpreter) shall be a person who knows the languages needed for interpreting or able to understand the deaf-and-mute language signs, invited by the pre-trial investigator, the pretrial judge or the court to be present during the proceedings.

The theory of the Lithuanian criminal procedure states that the ‘interpreter may be the person who knows foreign language well enough. [An] Unqualified interpreter shall be disqualified from participation in the proceeding’.112

12. The Right to Silence During the Pre-Trial Procedure The CCP does not directly (expressis verbis) provide for the right to silence of the suspect during the pre-trial procedure. Following the theory of Lithuanian criminal procedure, the right to silence (eg right to refuse answering questions and producing documents) stems from the understanding of the suspect’s right to present his/her statements with respect to charges brought against him/her and to give evidence, according to which the right to present statements, to give evidence or produce documents is in the full and absolute disposition of the suspect.113 Neither the law, nor judicial jurisprudence lay down any liability or sanctions in case the suspect gives no evidence, refuses to answer questions or to produce documents. The suspect has the right to maintain an absolute passivity in these procedural actions, which require the will of the suspect, eg the suspect has the right to refuse to provide voice or handwriting samples. However the Supreme Court of Lithuania justifies the legal practice, when the voice samples of the suspect are obtained by an indirect method, as provided in CCP, Article 144, eg the sample of the suspect’s voice is obtained from videos of the suspect’s examination. The suspect must obey provisional or other procedural coercive measures, which are applicable for him, and may not illegally influence the progress or result of the procedure (eg he cannot destroy or conceal evidence of criminal acts, or influence witnesses).

13. Rights of Legal Persons in Criminal Proceedings The Lithuanian legal system provides for criminal responsibility of legal persons. Legal persons liable to criminal prosecution enjoy all the rights and duties of the suspect or accused. These rights and duties of the legal person devolve upon the representative of a legal person. According to CCP, Article 388: An officer or employee of the legal person, also a lawyer authorised by the legal person to represent it at the proceedings may be a representative of the legal person liable to criminal prosecution. … The representative of a legal person shall exercise in the course of the criminal proceedings all the rights granted under the CCP to suspected and accused persons and shall also perform the duties of the above parties to the criminal proceedings.

112 113

Goda (n 18) 83. Eg Goda, Kazlauskas, Kuconis (n 1) 81; Merkevicˇius (n 23) 470–527; etc.

12 Luxembourg MARTIN PETSCHKO, MARC SCHILTZ, STANISLAW TOSZA1

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

S

AVE FOR SPECIFIC types of procedure, the standard preliminary criminal procedure under Luxembourgish law can be subdivided into two distinct phases—the first being directed and guided by the public prosecutor, and the second starting upon the case’s referral to the investigative judge. In practical terms, both are usually implemented by the criminal police. The referral to the investigative judge constitutes an important watershed from a structural point of view. Further, it is only after the referral that the CCP gives rise to most defence rights.2 Even though this structural and procedural distinction exists, the prevailing view is that a clear-cut separation of investigation and prosecution measures is not possible.3 A description of a standard preliminary criminal procedure under Luxembourgish law, shall as a first step explain its different stages and exemplify the abstract principles set out above. Two ways of instigating proceedings can generally be distinguished. In the first category, it is the criminal police that detect a criminal offence (constat de faits) and consequently open an inquiry on their own initiative. They would then ultimately inform the public prosecutor of the results obtained, by transmitting a statement (procès-verbal, CCP, Articles 46 and 48). The second category involves facts of which the public prosecutor was aware independently and before the criminal police. He/she would then instigate investigations and commission the police to undertake the necessary steps. In either case, it is within the public prosecutor’s sole discretion whether to drop the case, to request the police to conduct further investigations or refer the case to the investigative judge (réquisitoire). The overall procedure up to this point is called enquête préliminaire.4

1 The Authors would like to express their gratitude to Jeannot Nies, Premier Avocat Général at the Parquet Général du Grand-Duché de Luxembourg, Stéphane Maas, Juge d’Instruction at the Tribunal d’Arrondissement de Luxembourg and Nicky Stoffel, avocat à la Cour for all the information and comments they kindly agreed to share with us in the course of preparing this article. 2 See section F. 3 For increased clarity and even though no material or qualitative distinction exists, for the purposes of this article, the phase preceding a case’s referral to the investigative judge will be termed investigation and the subsequent phase prosecution. 4 Also see section A3(a) below.

450 Luxembourg After having received the public prosecutor’s request, the investigative judge assesses the facts and evidence having been put forward to him/her, and decides on the further measures. Should he/she consider that further investigation measures are necessary, the criminal police will implement such. Once the investigative judge has gathered enough material to get a clear picture of the case, he/she will hand it back to the public prosecutor, who will in turn refer the case to the Chambre du conseil of the district court (Court d’arrondissement).5 The latter will then either drop the case (non-lieu) or bring it to trial.

2. Sources of Criminal Procedural Law Historically, the CCP goes back to the French Code of Criminal Procedure of 1808. Over the course of time the CCP was amended on several occasions in order to meet the local Luxembourgish needs and circumstances. Nevertheless, given the persistent parallels between the CCP and the French Code of Criminal Procedure, it is not surprising that both Luxembourgish jurisprudence and doctrine regularly make reference to French sources. Among the laws that have amended the CCP, some merit particular attention, given the current context: (i) the law of 6 March 2006, amending certain aspects of the preliminary procedure,6 (ii) the law of 12 November 2004 on money laundering and terrorism financing, transposing Directive 2001/97/EC,7 (iii) the law of 12 August 2003 on terrorism financing,8 and (iv) the Law of 27 October 2010 on money laundering and terrorism financing, implementing respective Security Council resolutions,9 to name but some of the most recent few. Further to the European Convention on Human Rights, to which Luxembourgish courts frequently make reference, important safeguards of fundamental rights can be found in the Constitution. In addition to these sources of statutory law, Luxembourgish courts and tribunals take the jurisprudence of the ECtHR into due account.

5

For a more detailed outline on the role of the Chambre du conseil, see section B. Loi du 6 mars 2006 portant 1. introduction notamment de l’instruction simplifiée, du contrôle judiciaire et réglementant les nullités de la procédure d’enquête, 2. modification de différents articles du Code d’instruction criminelle et 3. abrogation de différentes lois spéciales. 7 Loi du 12 novembre 2004 relative à la lutte contre le blanchiment et contre le financement du terrorisme portant transposition de la directive 2001/97/CE du Parlement européen et du Conseil du 4 décembre 2001 modifiant la directive 91/308/CEE du Conseil relative à la prévention de l’utilisation du système financier aux fins du blanchiment de capitaux. 8 Loi du 12 août 2003 portant 1) répression du terrorisme et de son financement 2) approbation de la Convention internationale pour la répression du financement du terrorisme, ouverte à la signature à New York en date du 10 janvier 2000. 9 Loi du 27 octobre 2010 portant renforcement du cadre légal en matière de lutte contre le blanchiment et contre le financement du terrorisme; portant organisation des contrôles du transport physique de l’argent liquide entrant au, transitant par ou sortant du Grand-Duché de Luxembourg; relative à la mise en oeuvre de résolutions du Conseil de Sécurité des Nations Unies et d’actes adoptés par l’Union européenne comportant des interdictions et mesures restrictives en matière financière à l’encontre de certaines personnes, entités et groupes dans le cadre de la lutte contre le financement du terrorisme. 6

General Aspects of the Procedure 451 3. Bodies Carrying Out Investigation and Prosecution (a) Police CCP, Article 9-2 describes the role of the criminal police (Police judiciaire) in law enforcement. The margin of appreciation the criminal police enjoy largely depends on whether the case has been passed on to the investigative judge and prosecution (information) was instigated. Before such measure has been taken, the police’s tasks comprise the detection of criminal offences, the gathering of evidence and the identification of perpetrators. They perform those tasks either independently or under the public prosecutor’s orders. As soon as the case is referred to the investigative judge, they only carry out the latter’s orders and are more restricted in their scope of action. The only coercive measures the criminal police may take on their own motion, are such relating to a perpetrator being caught red-handed. Generally speaking, the competences enjoyed by the criminal police are the same as the investigative judge’s.10 According to CCP, Article 24 the public prosecutor takes every necessary investigation measure. Even though he/she may in principle conduct these himself, this is very rarely done in practice. It is therefore the criminal police that implement the overwhelming majority of the practical investigation tasks. From a purely hierarchical point of view the criminal police are placed under the supervision of the public prosecution service. (b) Public Prosecution Service The public prosecution service (ministère public, or parquet) undertakes all necessary measures or sees that such measures are undertaken in order to investigate offences punishable under Luxembourgish criminal law. In doing so, the public prosecution service guides and directs the criminal police in their investigation measures. As Luxembourg applies the opportunity principle, the public prosecutor, however, enjoys a very wide margin of discretion, when deciding which investigation measures to take (if any at all) with respect to a specific case.11 The public prosecution service’s tasks further comprise the representation of public interest during the preliminary procedure as well as before the courts. It follows from this mission that the prosecution service is entitled to instigate review procedures regarding specific procedural steps and decisions undertaken in the framework of the preliminary procedure. For jurisdictional purposes the territory of Luxembourg is divided into two parts, corresponding to the court circuits of the district courts (tribunaux d’arrondissement) of Luxembourg City and Diekirch. The public prosecution service is represented at both these courts by a parquet, which comprises the prosecutor (procureur d’Etat) and his staff.12 At

10

G Vogel, Lexique de Procedure Pénale (Brussels, Larcier, 2009) 152. For a more detailed outline see section A.4. 12 This hierarchical structure as set out above does however only affect the written submissions of the public prosecutors. When appearing before court they are in principle free to take a position as they please (‘La plume est serve, la parole est libre’). 11

452 Luxembourg the Higher Court of Justice (Cour supérieure de justice) the public prosecution service is represented by the general prosecutor (Procureur général d’Etat) and his staff. Both the prosecutor as well as the general prosecutor exercise the right to order with respect to their staff. (c) Investigative Judge The investigative judge plays a central role in the Luxembourgish preliminary criminal procedure. The CCP follows the principle that no investigation measure can be launched by an investigative judge without prior request by the public prosecutor (réquisitoire). However a private party concerned (partie civile) may force such a réquisitoire.13 As soon as the investigative judge is seised by the public prosecutor, the former has the exclusive authority to decide whether and how to investigate the case (appréciation souveraine).14 When investigating a case that is submitted to him/her by the public prosecutor he/she is bound by the facts put forward to him/her (saisi in rem). The consequences drawn from this principle are twofold. First, the investigative judge may conduct prosecution measures targeting natural or legal persons even though they had not appeared in the public prosecutor’s request. Second, facts that are discovered by the investigative judge in the course of his/her investigations and that had not been referred to by the public prosecutor’s request cannot be subject of the investigative judge’s prosecution measures. Such have to be reported back to the public prosecutor (CCP, Article 50, para 4). Measures taken by the investigative judge must not bear an inquisitorial character, ie have as their sole purpose the detection of an offence in regard to which no precise proofs or indications exist.15 (d) Specialised Agencies The main specialised agency which is of interest in the given context is the Financial Intelligence Unit (Cellule de renseignement financier—FIU), which organisationally forms part of the public prosecution service of Luxembourg City. Its main task is combating money laundering and terrorism financing. To this end, the FIU may instigate investigations on her own initiative. Among the specific investigation measures the FIU may apply is the monitoring of bank accounts as well as the freezing of funds.16

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle In this respect the same principles apply to the instigation of investigations as well as of prosecution. For investigation measures undertaken or ordered by the criminal police or the public prosecutor, simple suspicion will suffice. All measures ordered by an investigative judge have to be founded upon reasonable grounds that an offence has been committed. In 13 14 15 16

CCP, Art 28 in conjunction with Arts 50 and 57. G Vogel (n 11) 101, 103. Court of Appeal (Cour d’Appel), Chambre du Conseil, 10 February 1999, n 42/99. For a more detailed description of the FIU’s procedural prerogatives, see section C.1.

Investigation Measures 453 practice, the assessment of these factors is undertaken very much on a case-by-case basis, and it appears that no abstract rules for delimitation have yet emerged. Luxembourg applies the opportunity principle (CCP, Article 23). It is therefore solely up to the public prosecutor to decide whether and how to investigate given facts. The exercise of this discretion is guided by several criteria, such as the social harm and the immediate damage inflicted by the perpetrator or the latter’s motives.17 Furthermore, the decision to drop a case (décision de classement) is generally regarded as an administrative decision.18 Hence, no judicial review is available with respect to it. However, the public prosecutor’s decision to drop a case does not touch upon the procedural rights of a private party concerned, which essentially consist either of an application for review which is lodged with the procureur général, a citation directe of the trial court or a partie civile with the investigative judge. 5. The Status of the Accused/Defendant The moment upon which most of the accused rights arise is the case’s referral to the investigative judge (réquisitoire). These include amongst others the right to a legal counsel, the right to be informed about the charges, access to the file, etc. The accused also enjoys the right to be informed about the factual background of the accusation and the legal conclusions that are drawn from it.19 6. Specialised Procedure for Financial Criminal Investigations For the purposes of criminal procedure, Luxembourgish law does not provide for a particular set of rules that would only apply to financial criminal investigations. Therefore, the general rules apply. Reference is however made to the special prerogatives the FIU enjoys and which are regularly applied in such cases.20

B. INVESTIGATION MEASURES

With regard to judicial review of investigation measures, clearly the orders (ordonnances) issued by the investigative judge merit interest. The set of legal remedies available to review them primarily depends on a fundamental distinction which separates investigative orders on the one hand and judicial orders on the other hand. There is however no statutory rule clearly defining the applicable criteria of distinction. One has therefore to rely on jurisprudence and doctrine that have developed the following approach. Jurisdictional orders are therefore such as to determine how the investigative judge decides between different options. These options may either be foreseen by the law itself or alternatively derive from applications by the parties. A jurisdictional order therefore decides a question of law or a claim by the parties. This abstract rule may be exemplified by the following orders that are generally considered of a jurisdictional nature: (i) the order stating 17 18 19 20

French Criminal Procedure Code (Code de procédure pénale), Art 75. See G Vogel (n 11) 133. For a more detailed outline see section E. See section A.3.

454 Luxembourg that a given private party concerned has no standing before the court, (ii) the order to refuse the appointment of an expert even though a party had applied for it, and (iii) in general any order refusing to conduct a measure of investigation that a party had applied for.21 Investigative orders in turn are defined as orders that do not follow upon an application or a claim. In other words, this category comprises all orders that have been issued, when the judge could alternatively have taken a passive attitude and not taken any step at all. Orders for house searches, for example, fall into this category.22 The importance of this distinction derives from the instruments of legal review that can be brought before the court in their respect. Whereas generally jurisdictional orders are subject to review (appel) by the Chambre du conseil of the High Court of Justice (Chambre du conseil de la Cour d’Appel), such review does not exist with regard to investigative orders whose validity may however be question with the Chambre du conseil of the district court. In the context of judicial review it is necessary to refer to the Chambres du conseil of the district courts (Tribunal d’arrondissement), examining bodies that decide on a series of claims for judicial review in the preliminary procedure. In this respect the most important competences are decisions on (i) applications for release during pre-trial custodial detention (demandes en obtention d’une liberté provisoire pendant la détention préventive), (ii) application for restitution of seized objects, assets and documents (demandes en mainlevée/ restitution d’objets, fonds et documents saisis), and generally (iii) applications for nullity of prosecution measures (requêtes en nullité contre des actes d’instruction). Further, the Chambre du conseil exercises the final control on the results achieved by the investigative judge. After the investigative judge has considered the material, he/she submits the respective results to the prosecutor who refers the case to the Chambre du conseil, which can either drop the respective case or bring it to justice.23

1. Formal Designation as a Suspect Literally speaking, formal designation as a suspect is unknown to Luxembourgish law. Generally, investigation is either instigated by the criminal police on their own motion, or by order from the public prosecutor.24 From a procedural point of view however, the public prosecutor’s decision to refer a case to the investigative judge by réquisitoire constitutes a watershed, as from that point onwards the suspect’s defence rights are largely increased.25

2. Questioning the Suspect Pre-Trial Here again, the fundamental distinction is to be made according to the procedural stage during which questioning is performed. Different rules apply to questionings before the réquisitoire, as opposed to after such measure being taken.

21

G Vogel (n 11) 133. Court of Appeal (Cour d’appel), Chambre du conseil, 7 December 1993, n 219/93. 23 For further details see section C. 24 See section A.1. 25 See section F; as to the public prosecutor’s right to directly refer a case to the Chambre du Conseil without involvement of the investigative judge, see section C.5. 22

Investigation Measures 455 In the investigation stage preceding the réquisitoire, the questioning of a suspect is not safeguarded by a high level of defence rights nor must the circumstances meet a given threshold of suspicion or gravity of offence. Luxembourgish law does not require any specific level of suspicion for a mere questioning of a suspect. However, the police do not dispose of any coercive power to make a suspect appear before them.26 Further, in this procedural stage, no suspect is under an obligation to cooperate with the police force. The public prosecutor, while in principle entitled to conduct questionings him-/herself, this task is usually performed by the criminal police, who set up a statement of offence and transmit it to the public prosecutor. Even though there is no specific review procedure for questionings, the suspect may retract his/her testimony at any time. Once the case has been referred to the investigative judge, the situation is different. For example the investigative judge does possess the coercive power to make a suspect appear before her/him. The accused does however enjoy the right of silence (droit de se taire) should the making of a statement e.g. amount to self-incrimination. Once a suspect has been formally accused by the investigative judge the police forces are no longer entitled to question him/her as to the facts covered by the réquisitoire. 3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) The same rules apply to interrogations of witnesses as to questionings of suspects before a réquisitoire is issued.27 Reference is therefore made to the previous section. Persons covered by professional secrecy can rely on such and refuse to make a statement. See also section B10. 4. Arresting the Suspect and Detention for Questioning As the rules that apply to arresting the suspect and detention for questioning are identical to those that apply to pre-trial custody, these will be dealt with together under the following section. See also section B10. 5. Pre-Trial Custodial Detention If a perpetrator is caught by the police red-handed, they can order that nobody leave the crime scene until the procedure is closed. In such cases the public prosecutor may issue an order arresting the perpetrator. The perpetrator has then to be shown to the investigative judge within 24 hours, who will decide if the arrest will be maintained. As regards the requirements that have to be met before a formal warrant of pre-trial custodial detention (mandat de dépôt) may be issued by the investigative judge, CCP, Article 94 distinguishes between such suspects accused (inculpés) that are residents on the one hand and 26 Luxembourgish law does however provide for an exception in cases when the perpetrator is caught redhanded. 27 G Vogel (n 11) 61.

456 Luxembourg non-residents on the other. For residents the following criteria apply: (i) strong indications that the suspect accused has committed a criminal offence, and (ii) that the presumed facts would give rise to at least two years of imprisonment. Further to this at least one of the following prerequisites must be met: (i) danger of flight, (ii) danger of suppressing evidence (obscurcissement des preuves), or (iii) danger of commission of further offences. For warrants of pre-trial custodial detention (détention préventive) concerning nonresidents to be issued, the following criteria suffice: (i) strong indications that the accused has committed a criminal offence and (ii) the presumed facts would give rise to criminal punishment (peine criminelle or peine d’emprisonnement correctionnel). Warrants of pre-trial custodial detention have to be reasoned in a detailed manner, specifying the precise factual background that leads to the conclusion that all preconditions are met by assessing, inter alia, the gravity of the offence as well as the soundness of the submitted proofs.28 Warrants of pre-trial custodial detention are considered administrative acts (actes d’instruction) and as such subject to reduced judicial review only. Whereas jurisdictional acts (décision juridictionnelle) constitute an object of review under CCP, Article 133 (recours), warrants of pre-trial custodial detention may only be reviewed by a procedure of annulment (procedure en annulation). Appeals are not admissible.29 The competent court (ie the Chambre du conseil of either the Tribunal d’arrondissement or of the Cour d’Appel) not having decided on the charges within two months after the first questioning (premier interrogatoire), the investigative judge can prolong the pre-trial detention after having informed the public prosecutor (CCP, Article 94-3). The investigative judge can lift the pre-trial custodial detention after having heard the public prosecutor (mainlevée).

6. Interception of Postal Communications (Letters) The CCP employs the general term ‘special surveillance measures’ (mesures spéciales de surveillance). These cover the interception of postal communications as well as the monitoring of telecommunication traffic data and the interception of the contents of telecommunications. The applicable preconditions, procedures, possibilities of legal review and further rules are identical or at least very close. Therefore, these categories of measures will be dealt together. CCP, Article 88-1 sets out the prerequisites for special surveillance measures. Those are (i) that the measure aims to investigate a particularly grave criminal offence, punishable with at least two years of imprisonment, (ii) existing evidence as to the fact that the suspect has committed such offence, and (iii) that conventional investigation methods seem ineffective given the nature of the facts and its special circumstances. Special surveillance measures can only be conducted upon order (ordonnance) by the investigative judge which has to be duly justified relying on the specific factual background of the respective case. Orders authorising special surveillance measures are valid for one 28 A Spielmann, ‘La détention préventive au Grand-Duché—Son contrôle par la chambre des mises en sccusation’ in Spielmann/Weitel/Eissu, La Convention Européenne des droits de l’homme et le droit luxembourgeois (Brussels, Editions Nemesis, 1991) 159. 29 G Vogel (n 11) 55.

Investigation Measures 457 month upon the date of the order and can be prolonged by another month, overall not extending the measure for more than one year. Each prolongation has to be approved by the President of the Chambre du conseil of the Court of Appeal (CCP, Article 88-1). Orders for special surveillance measures are subject to judicial review by way of appeal (recours). Both the public prosecutor as well as the person targeted by the measure and who has been informed about it, can bring an appeal before the President of the Chambre du conseil of the Court of Appeal. Special surveillance measures are considered to bare an exceptional nature and must therefore only be applied within strict limits. The CCP therefore excludes them for the time period following the investigative judge’s first interrogation with the accused (interrogatoire). Persons to which specific rules of professional secrecy apply (eg attorneys) are generally exempted from special surveillance measures, unless being themselves suspected to have committed a criminal offence. Persons who have been the object of special surveillance measures have to be informed about them at the latest 12 months after they have ceased to be applied (CCP, Article 88-2, para 6). Further, such measures have to be lifted as soon as the underlying prerequisites are no longer fulfilled.

7. Monitoring of Telecommunication Traffic Data and Interception of the Contents of Telecommunications (Content Data) The rules contained in the CCP and applicable on the interception of postal communications as well as the monitoring of telecommunication traffic data and the interception of the contents of telecommunications are extremely close. Therefore, for the purposes of this section, reference is made to the previous one.

8. Surveillance in Public and Private Sphere (Acoustic and Visual) Acoustic and visual surveillance measures can be instigated upon an order by the investigative judge or the public prosecutor, in case (i) they are necessary for the conduct of the investigation and (ii) conventional investigation methods seem ineffective given the nature of the facts and its special circumstances (CCP, Article 48-13). The CCP distinguishes such ordinary surveillance measures from those which are undertaken using technical devices on the one hand and such that are undertaken using technical devices in order to achieve insight into an individual’s home or a corporation’s seat (vue intérieure d’un domicile, ou d’une dépendance propre). For such qualified surveillance a higher level of prerequisites is required. CCP, Article 88-1, para 3 defines technical devices as equipment that detects signals, transmits or saves them, excluding eg those that are envisaged by CCP, Article 88-1 to 88-4 (special surveillance measures). Surveillance measures undertaken using technical devices in the meaning of CCP, Article 48-12, para 3 can only be performed if, further to the conditions described in CCP, Article 48-13, evidence exists that the suspect has committed an offence punishable by at least one year of imprisonment. They are ordered by the public prosecutor or the investigative judge (CCP, Article 48-13, para 2).

458 Luxembourg In case of surveillance measures undertaken using technical devices in order to achieve insight into an individual’s home in the meaning of CCP, Article 48-13, para 3, the same conditions apply, except that the suspected offence has to be punishable by at least four years of imprisonment. They can only be ordered by the investigative judge (CCP, Article 48-13, para 3). Surveillance measures are to be distinguished from house searches, the former not allowing the police forces, who generally carry them out, to actually enter into the respective premises without prior agreement of the inhabitant.

9. Monitoring of Bank Transactions As Luxembourgish criminal law stands today, it provides two authorities with the power to monitor bank transactions: the Financial Intelligence Unit—FIU (Cellule de renseignement financier) on the one hand, and the investigative judge on the other. (a) FIU Financial service operators as well as some non financial professionals (eg: accountants) are supposed to alert the FIU to any suspicious circumstances of which they have knowledge. Upon simple suspicion of money laundering or financing of terrorism, the FIU can proceed to monitor bank transactions. Such measures are neither subject to prior authorisation by the investigative judge, nor can they be reviewed. In addition, the applicable statutory rules do not envisage any need to notify such monitoring. (b) Investigative Judge Since October 2010, not only is the FIU entitled to monitor bank transactions, but such measures can also be undertaken upon the order (ordonnance) of the investigative judge.30 CCP, Article 66-3 requires that (i) such monitoring is necessary for the conduct of the investigation (instruction préparatoire) and (ii) conventional investigation methods are ineffective given the nature of the facts and its special circumstances. The offences enunciated by this article are of special severity, such as offences against state security, trafficking in human beings, money laundering, corruption or counterfeiting, to name but a few. The maximum duration of such monitoring is three months (CCP, Article 66-3, para 2).

10. Tracking and Tracing of Objects and Persons The Luxembourgish CCP lacks detailed rules on tracking and tracing of objects. Regarding tracking and tracing of persons, the only institutions that may be of use are those aiming at 30 Conf Law of 27 October 2010, published on 3 November 2010 (Loi du 27 octobre 2010 portant renforcement du cadre légal en matière de lutte contre le blanchiment et contre le financement du terrorisme; portant organisation des contrôles du transport physique de l’argent liquide entrant au, transitant par ou sortant du Grand-Duché de Luxembourg; relative à la mise en oeuvre de résolutions du Conseil de Sécurité des Nations Unies et d’actes adoptés par l’Union européenne comportant des interdictions et mesures restrictives en matière financière à l’encontre de certaines personnes, entités et groupes dans le cadre de la lutte contre le financement du terrorisme).

Investigation Measures 459 finding persons and bringing them to the authorities, possibly resulting also in the person being arrested or detained pre-trial. They include (i) the mandat d’amener, (ii) the mandat d’arrêt and (iii) the mandat de comparution. All three categories share certain features. They are considered legal acts applying the statutory rule that the permanent or temporary presence of a person is required, to an individual case. Each of these acts must be based on an order from the investigative judge. If need be, coercive measures may be based on them. Judicial review is only possible within relatively strict limits, upon which the underlying order may be annulled. (a) Mandat d’Amener CCP, Article 91 stipulates that the investigative judge may only issue a summons (mandat d’amener) if there is a risk of (i) the accused (inculpé) fleeing, (ii) suppression of evidence (obscurcissement des preuves), or (iii) the whereabouts of the accused are not known. Apart from the accused, a summons may also be issued to a witness, who previously had refused to present himself. Persons having been detained on the basis of a summons have to be heard within 24 hours following their arrival at the detention centre (maison de détention). A summons is in general implemented by the police, who may exercise coercive power in order to accompany the affected person to the detention centre. (b) Mandat d’Arrêt CCP, Article 94 stipulates that the investigative judge may only issue an arrest warrant (mandat d’arrêt) if (i) the accused is fugitive or not a resident of Luxembourg, or (ii) the offence he/she is suspected to have committed is punishable by imprisonment. An arrest warrant has to be duly reasoned taking into consideration the individual factual background of the case. As is the case for a summons, persons having been detained on the basis of an arrest warrant have to be heard within 24 hours following their arrival at the detention centre (maison de détention). A mandat d’arrêt may only be issued after the public prosecutor has been consulted. (c) Mandat de Comparution The investigative judge may issue a subpoena (mandat de comparution) and the person targeted is to be identified as clearly as circumstances permit. The respective person has to be questioned immediately.

11. Data Mining and Profiling Luxembourgish criminal law does not contain any provisions specifically targeting data mining or profiling. CCP, Article 48-24 does however name the data to which the public prosecutor has access, which include inter alia the central register (registre général des personnes physiques et morales), the register of driving licence holders (fichier des titulaires et demandeurs de permis de conduire) and the register of motor vehicles (fichier des véhicules routiers et de leurs propriétaires et détenteurs).

460 Luxembourg 12. Access to Relevant Premises (‘Crime Scene’) Access to crime scenes that are located on public premises is generally not problematic and can be achieved by the law enforcement authorities without prior authorisation. Access to crime scenes located in private premises is regulated, and generally the rules on searches apply (see section B13).

13. Search and Seizure (a) Search Under Luxembourgish criminal procedure a search of premises (perquisition) is defined as penetration of enclosed spaces that are to be regarded as a seat or home by natural or legal persons respectively, in order either to actively search for evidence that establish that a criminal offence has been committed, or to apprehend the respective perpetrators. Searches generally can only be implemented upon the order of an investigative judge31 (ordonnance de perquisition) and throughout the entire preliminary procedure, ie even under certain conditions (Article 24-1) before the case is passed on to the investigative judge. Only in cases in which the perpetrator has been caught in the act (flagrant délit), searches may exceptionally be conducted without such order. On the basis that the privacy of the home is protected by the Constitution itself (Article 15), Luxembourgish jurisprudence and doctrine have concluded that searches have to remain exceptions from this constitutional rule. As such they have to be justified by a precise criminal offence, which is not only suspected to have been committed, but rather that can be deemed certain to have taken place.32 It follows from the above that searches must not be undertaken as mere inquisitorial measure, ie in order to discover a possible criminal offence, but require pre-existing indications of proof as to a precise offence.33 Further, searches have to fulfil the requirements of necessity and proportionality. Case law regularly establishes that these two requirements are met by assessing the link between the respective person and the file (necessity) and by the extent of the searches (proportionality).34 The applicable procedure is briefly set out by the CCP (Article 65 in conjunction with Articles 33–38), according to which the investigative judge informs the public prosecutor of searches beforehand. In addition, searches require the presence of the person whose home is searched, or alternatively two witnesses (CCP, Article 34) and may in principle only be carried out between 6 am and 8 pm35 and entail the police’s obligation to issue a protocol. The order to conduct a search is considered to be of investigative nature, the investigative judge is not under an obligation to motivate it.36 31

Except for cases in which the perpetrator is apprehended red-handed. Trib Arr Luxembourg, 12 February 1992, no 35/92 and 36/92); G Vogel (n 11) 142. G Vogel (n 11) 142. 34 Cass Fr Crim 27 January 1987, Bull Crim, no 41. 35 Save for exceptions like cases in which the perpetrator is apprehended red-handed. 36 R Merle, A Vitu, Traité de droit criminal, Procedure Pénale (Paris, Cujas, 2000), Vol 2, 362; J Petry, Droit pénal—Procedure Pénale (Luxembourg, Pasicrisie luxembourgeoise, 2000), 149. 32 33

Investigation Measures 461 It further follows that they are subject to reduced judicial review only. Whereas jurisdictional acts can be reviewed under CCP, Article 133, investigative acts may only be annulled (demande en nullité37). Such annulment does not render the whole underlying procedure void, but rather excludes the use of the information obtained by a search.38 The same rules apply to searches of persons (fouilles corporelles) and of wallets and luggage (fouilles de portefeuilles et bagages à main) as to searches of premises.39 (b) Seizure The investigative judge may order a seizure (saisie) with regard to objects that (i) seem useful to him/her in order to establish the truth or (ii) whose use might impede the procedure (CCP, Article 66) or (iii) are subject to confiscation. The investigative judge’s order has to be reasoned, taking into account the individual factual background of the case. The judicial review of seizure orders is limited, appeals (appel) not being permissible. The affected person may however launch an application to lift the seizure (demande de mainlevée with the Chambre du conseil of the district court (Tribunal d’arrondissement). Independently, the investigative judge may lift the seizure at any time. In addition, any person claiming to exercise rights with respect to a seized object may request that it is returned (CCP, Article 68).

14. On-line Search of Computers Mere on-line search of computers is not foreseen as an investigation measure under Luxembourgish law. At present there is neither pertinent case law nor doctrine. On-line searches are however not applied and generally considered illegal by the law enforcement authorities. Already existing data can however be made available to the law enforcement authorities by way of a house search.

15. Freezing Luxembourgish criminal law does not distinguish between seizure and the freezing of funds. Hence the same conditions and rules apply as described under section B13.40

16. Production Orders (in Particular for Banks, Public Authorities) The legal basis providing for the issuing of production orders was only created recently by the entry into force of the law of 27 October 2010.41 Article 66-4, newly inserted into the

37 38 39 40 41

CCP, Art 126. CA, 4 January 1956, no 16436. Cass Crim, 21 Juillet 1982, Bull crim, no 96; Cass Crim, 15 October 1984, Bull crim, no 298. For an outline on the FIU, which plays an important role in this field, see section A3. Law of 27 October 2010, published on 3 November 2010 (n 8).

462 Luxembourg CCP, requires that production orders, addressed to a banking institution be useful for the discovery of truth. The investigative judge issuing the order (ordonnance) has to indicate the specific accounts targeted as well as the respective time period.

17. Invoking the Assistance of Experts to Examine Evidence etc. According to CCP, Article 87 if experts are appointed by the investigative judge by way of order (ordonnance), the accused is informed of such order without undue delay. The accused has the right to demand that an expert be appointed. He can further appoint an expert of his confidence who is entitled to assist in the entire procedure of drawing up the expert report as well as direct inquiries towards the expert and to submit his observations. Experts are sworn in upon their appointment.

18. Infiltration (Undercover Investigations) and Fictitious Purchases Infiltration is governed by CCP, Article 48-17 et seq. and has been used by Luxembourgish police forces as an investigation measure, notably with respect to trafficking in drugs, and is accepted by the courts. Further, according to jurisprudence, fictitious purchases of illicit substances is in principle tolerated as long as the buyer maintains a passive attitude.42 In this respect it has been held that any such investigation measure must not (i) exercise any moral or material pressure in order to make someone commit an offence, or (ii) interfere in the overall design and planning of the offence.43 In this respect jurisprudence has also clearly stated that the use of an agent provocateur constitutes a violation of Luxembourgish law. As opposed to the fictitious purchaser, who remains strictly passive, the agent provocateur instigates a third person to commit a criminal offence.44

19. Controlled Deliveries Luxembourgish criminal law does not contain any rules specifically targeting controlled deliveries, which are not generally considered to be a violation of the law. As Luxembourg is however regularly faced with illicit trafficking activities, due to its central geographical location, its law enforcement authorities cooperate with the respective authorities of the involved countries and share the available information. It is in this context that the decision is taken as to which concrete measures to take.

42 43 44

Trib corr Luxembourg, 19 November 2003, n 2672/2003. G Vogel (n 11) 159. Ibid.

Prosecution Measures 463 C. PROSECUTION MEASURES

1. Opening an Investigation and Prosecution The criminal procedure starts with an assessment of facts (constat de faits) by the police. Having gathered information and evidence (enquête), the police inform the public prosecutor of the results of their inquiry, in a statement of offence (procès-verbal, CCP, Articles 46 and 48). Luxembourg follows the opportunity principle. Therefore, having received the statement of offence, the public prosecutor takes a decision as to whether the case shall be prosecuted and if there is a need of investigation (CCP, Article 23-1). In the event that the public prosecutor considers that the police should make further inquiries before deciding upon the continuation of the case, he/she shall send the case back to the police (CCP, Articles 46 and 46-1). If there is no interest in a prosecution, the public prosecutor shall close the case (décision de classement). If the public prosecutor decides to prosecute the case, two scenarios are possible. First, if an investigation is necessary, the public prosecutor shall send the case to an investigative judge in order to proceed with an investigation (CCP, Articles 23 and 49). Upon receiving this formal decision (réquisitoire introductif), he/she will open an investigation (CCP, Article 50). The investigative judge is bound by the scope of facts described in the decision. Therefore, if new information indicates a necessity to broaden the scope of the facts being under investigation (eg the offence has been committed under other circumstances), an additional decision of the public prosecutor is necessary (réquisitoire ampliatoire). In case of a serious offence (crime) investigation is obligatory,45 except if the case is clear and there exist a possibility to request a lower level punishment (peine délictuelle). In this case a second scenario is possible, in which the public prosecutor is allowed to send the case directly to the chambre du conseil. For less serious offences (délit) investigation is optional depending on the need to proceed by coercive measures. If the public prosecutor considers that no such measures are required he/she may send it directly to the trial court (citation directe, CCP, Articles 132 and 132-1). An exceptional situation may occur in cases of money laundering and terrorism. The Financial Investigation Unit (FIU), which is responsible for surveillance of transfers of money in order to combat the above-mentioned crime, comprises also public prosecutors who act with ‘two hats’. If they discover an offence as officers of FIU they can, using their other hat, prosecute the case. In this situation no police inquiry is necessary and very often the case will be submitted directly to the Trial Court without an investigation being opened. Nevertheless a recent practice has been to separate the two functions such that the FIU officer, despite being a public prosecutor, would elaborate a report of transition (rapport de transition) and send it to the public prosecution office and not prosecute the case on its own. The public prosecutor is also entitled to ask the investigative judge to perform certain acts without formally opening an investigation (mini-instruction). This procedure is generally used for cases which appear to be clear and may be sent directly to the chambre du conseil or the Court (for lower level crimes (délits)) without a formal investigation being

45

See CP, Arts 1 and 7 for the definition of a serious offence.

464 Luxembourg open, but the public prosecutor needs a piece of evidence that only the investigative judge may obtain (eg the video recording from a CCTV camera). He/she may then ask the investigative judge to obtain this piece of evidence (CCP, Article 24-1(1)). However, if the investigative judge finds it necessary, he/she may decide to open a full investigation. In this event he/she shall ask the public prosecutor to produce a decision requiring the investigative judge to open an investigation, without which the investigative judge may not act (CCP, Article 24-1(2)). If the public prosecutor refuses to prosecute the case, or closes it before sending to the investigative judge, the victim has several possibilities to seek justice. First of all he/she may address the General Prosecutor (CCP, Article 23(5)). The latter may order the public prosecutor to prosecute the case. The victim may also seize directly the Trial Court, if he/ she considers that the case is clear enough and possess necessary evidence. If the evidence is not sufficient, the victim may address the investigative judge requesting him/her to open investigation in the case. The investigative judge shall immediately ask the public prosecutor to issue a decision requesting the investigative judge to open investigation (réquisitoire). The public prosecutor may refuse to issue it only if the facts invoked by the alleged victim do not constitute any offence or if legal prosecution is not possible, eg time-barred. (CCP, Article 57). There is no remedy against the decision of the public prosecutor to continue the case or to transfer it to the investigative judge, nor against the decision of the investigative judge to open or close investigation. No remedy is provided for in the Luxembourgish criminal procedure, if the case is under unreasonably long investigation. Nevertheless, in practice the court shall take this fact into account while deciding on the sentence, if the suspect is found guilty. Moreover, it is possible to invoke civil responsibility of public authorities, if they do not observe a reasonable delay.46

2. Unilateral Disposal of the Case (Including Remedy Against It) The public prosecutor may exercise his competence to close the case based on the opportunity principle until the moment that the case is sent to the investigative judge. From the moment he/she issues a decision transferring the case to the investigative judge, the latter is seised of the case until the chambre du conseil takes a decision (see section C5). In this phase neither the investigative judge nor the public prosecutor can close the case on opportunity grounds. The case must be sent to the chambre du conseil who will take a decision whether it shall be tried or not. Nevertheless, after having received the results of the investigation from the investigative judge, the public prosecutor may decide to recommend to the chambre du conseil not to send it for trial (CCP, Article 127(2)). In practice it is also possible to ‘kill off ’ a case if the public prosecutor after having received it from the investigative judge does not transfer it to the chambre du conseil. Although this way of proceeding is not very elegant, none of the parties have a legal possibility to force the public prosecutor to transfer the case, but the civil party and the accused may refer the case to the chambre du conseil on their own.

46 D Spielmann, ‘Les mouvements de reforme˛ de la procedure penale et la protection des droits de l’homme (Rapport Luxembourgeois)’ (1992 or 1993) Revue International du Droit Penal 993.

Prosecution Measures 465 The public prosecutor is obliged to close the case, if the suspect is dead or the offence is time-barred (CCP, Article 2). In this case he/she will ask the court render a decision noting the extinction of the public action. If the public prosecutor closes the case, the victim has three possibilities to continue the case, outlined above in section C1. 3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against It) The Luxembourgish law on criminal procedure does not provide for any form of negotiated justice.47 There are, however, two types of informal agreement, albeit outside the realm of economic or financial crimes. Due to the opportunity principle, the public prosecutor has in practice the possibility to enter into an informal agreement with the suspect. Public prosecutors tend to use it only for a limited number of offences, mostly traffic and drug offences. In these cases the suspect would have to undergo a course of training or treatment and the public prosecutor in exchange would close the case. However, such an agreement, being purely informal, gives no right to the suspect to challenge the public prosecutor’s decision to reopen the case. Moreover, the victim may always seise the investigative judge or the trial judge, regardless of any agreement between the suspect and the public prosecutor. CCP, Article 24(5) introduced also a possibility that before the public prosecutor decides whether to prosecute the case, he/she may send the case for mediation, if it seems suitable (this is expressly excluded if the suspect lives with the victim). Though the law is silent on the obligation of the public prosecutor to respect the results of mediation, it can be presumed that he/she will do so. These types of agreements—as mentioned above—are never applied for economic or financial crime cases. 4. Reopening of the Case Closed on Different Grounds According to Luxembourgish criminal procedure, two scenarios are possible. In the first, the decision to close the case has been taken by the public prosecutor (décision de classement) in execution of the powers vested in him according to CCP, Article 23(1). The public prosecutor may always reopen the case, if he/she considers that it became worth prosecuting. It may be due eg to the fact that, although the public prosecutor decided not to prosecute the case and only warned the suspect, the latter committed another offence. It is also possible, that the public prosecution office changes policy and decides to combat certain type of crime. Obviously the offence must not be time-barred according to the rules on limitations (CCP, Article 635ff). Moreover, a general rule requires that if there is risk that the suspect would not have a fair trial within reasonable time, the case should not be reopened. In view of the fact that the victim is never bound by the decision of the public prosecutor to prosecute the case or to abstain from it, he/she may pursue the case according to the above-described rules (see section C1) at any moment until the offence is time-barred. The second scenario presumes that the case has been already sent to the investigative judge. Then the chambre du conseil has to decide whether to close the case (ordonnance 47

Ibid 996.

466 Luxembourg de non-lieu) or to send it to the trial judge (décision de renvoi). If the chambre du conseil closes the case, the public prosecutor can no longer open it in exercise of his/her own powers. Nevertheless the chambre may reopen it at the request of the public prosecutor at the condition that new facts (charges nouvelles) occur. CCP, Article 135-1 defines the new facts as witness statements, documents and records which could not be submitted for consideration of the chambre when it closed the case and are likely to support the accusation or to shed new light on the already known facts. While taking the decision, the chambre shall also take into account whether by reopening the case, it can guarantee that the suspect will have a fair trial in reasonable time. If the case has been closed by the chambre, the victim has no right to ask for it to be reopened.48 There is no remedy against the decision of the public prosecutor to reopen the case. If the public prosecutor does not reopen the case, though the victim asked him/her to do so, the latter has always the option to address the General public prosecutor. The decision of the chambre du conseil may be appealed to the chambre du conseil of the higher court, whose decision is final. 5. Committing to Trial and Presenting the Case in Court If, after having received the results of the police inquiry, the public prosecutor considers that there is enough proof to try the case, he/she shall send it directly to the chambre du conseil, who will decide how to proceed with the case (CCP, Articles 132f), except for less serious offences (délits), if the investigative judge was not involved. If the case has been investigated by the investigative judge, when he/she considers that the case has been sufficiently clarified and all necessary measures have been applied, the investigative judge shall issue a decision closing the investigation (ordonnance de clôture) and send the case to the public prosecutor (CCP, Article 127(1)). The latter shall then file the case to the chambre du conseil, asking it to issue a decision closing the case (décision de non-lieu) or to send it for trial (renvoi devant le juge du fond). If the chambre finds that the act committed is not an offence, the suspect has not been discovered or there is not sufficient evidence, the chambre will close the case (CCP, Article 128(1)). Otherwise it will send it to the appropriate court (according to CCP, Articles 129–131-1). The parties (public prosecutor, victim, suspect) may appeal against this decision to the chambre du conseil of the higher court. The case is presented in court by the public prosecutor, unless only the victim pursues the charges though even in this case the public prosecutor will always be heard for conclusions.

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence Illegally or improperly obtained evidence cannot be used at trial or before the chambre du conseil. Nevertheless in order to be excluded, evidence must be examined according to the 48

Cour 17 février 1971, 21, 440.

The Right of the Suspect/Defendant During Investigation and Prosecution 467 rules provided in the CCP. If this is not respected, illegally or improperly obtained evidence become valid (purge de nullité). In a police inquiry, the public prosecutor and any person concerned by an act of inquiry may question it in front of the chambre du conseil. The public prosecutor must do so within five days from being informed about the act. The suspect has five days from the moment that the charges have been presented to him/her by the investigative judge, or in case of citation directe, he/she must question the act at the beginning of the trial before invoking any other defence, except questioning of the competence of the court. In any other case, the delay is of two months from the execution of the act (CCP, Article 48-2(1)–(3)). All the parties in the course of investigation have similar rights. The delay is of five days from the moment the person concerned was informed of the act (CCP, Article 126) if the act is related to the prosecution (instruction). 2. Admissibility of Written Reports Written reports are generally admissible in the Luxembourgish criminal procedure. They can have two different statuses, depending by whom they have been produced. If the report has been produced by an officier de Police judiciaire,49 the facts contained in the report are presumed true, until it is proven that the officer in question falsified the report (inscription de faux, CCP, Article 154). Reports of other agents are also admissible as proofs, but in order to deny the content of these reports it is enough to prove that facts stated in the report are not true (preuve du fait contraire). 3. Status of Evidence Obtained in Another Member State Evidence legally obtained in another Member State is admissible in Luxembourg, if Luxembourgish criminal procedure accepts this type of evidence. The rules concerning the status of evidence similar to those described in section D2 cannot affect the status of evidence according to the Luxembourgish CCP. This means that, even if according to the rules of another Member State a written report is presumed true until proven false, it will have normal value (so preuve du fait contraire would be sufficient), unless it has been elaborated by an officer of judicial police. E. THE RIGHT OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence The presumption of innocence constitutes a basic principle of Luxembourgish criminal procedure, though it has been expressed neither in the CCP nor CC, nor in any other act. It is only through Article 6(2) ECHR that this rule is formally present in the Luxembourgish legal system.50 49 50

For the definition of officier de Police judiciaire, see CCP, Arts 10ff. J Vogel, Lexique de Procedure Penal (Brussels, Larcier, 2001) 68f.

468 Luxembourg This principle has several implications for the criminal procedure. First of all the suspect has to be regarded as innocent until he is pronounced guilty by a final judgement. Secondly it is the prosecution who has to prove the guilt and the suspect does not have, if he/she does not wish so, to contribute to his/her own defence. If the suspect invokes a fact to his/ her defence, which does not seem a priori unrealistic, it is the public prosecutor who has to prove the fact untrue.51 Moreover, the CCP obliges the investigative judge or to look for evidence both in favour and against the suspect (à charge et à décharge, CCP, Article 51).52 The presumption of innocence requires also that the communication to media does not address the suspect, as if he/she has been already convicted.

2. The Right of the Defence to Undertake Investigative Measures/Acts in their Own Right and the Right to ask for a Special Act of Investigation It is a general rule that the defence may undertake acts that can contribute to the defendant being found not guilty. Nevertheless the defence can never execute an act that would require any type of coercion. There is a difference between the situation when the case is being investigated by an investigative judge. In this phase the suspect should request the investigative judge to undertake certain measure. This way the suspect can also ask undertaking of an act that requires coercion. If the investigative judge refuses, the suspect may appeal this decision. If an investigative judge is not seized, there is no possibility for the suspect to require undertaking of an act requiring coercion. In any case, the suspect may provide the authorities with anything that has been obtained legally (eg a medical expertise). Special attention shall be paid to witness statement. Due to the risk of an accusation of influencing witness which is a criminal offence, the defence will abstain from contacting witnesses before trial.

3. The Right to Legal Assistance The right to legal assistance is guaranteed at any stage of Luxembourgish criminal procedure. It is particularly guaranteed when the suspect is being questioned at the police station and by the investigative judge. According to CCP, Article 39(7) the police shall inform the suspect that he/she has a right to be assisted by a lawyer. If he/she expresses such a wish, he/she shall not be questioned until the lawyer arrives. If the suspect is unable to choose a lawyer, he/she will be appointed for him/her. He/she is nevertheless free to choose who he/ she wants to assist him/her so he/she may refuse the person chosen by the police and ask for somebody else. If the suspect cannot afford the lawyer, the costs of legal assistance will be borne by the state. If the suspect is less than 18 years old, he/she must have a lawyer during criminal procedure (CCP, Article 81(4)). The same rules apply when the suspect is being interviewed by an investigative judge. The investigative judge must inform the suspect about his/her right to have a lawyer after

51 52

Cour de cassation, 27 October 1977, Pasicrisie 24, p 7. Spielmann (n 47) 993.

The Right of the Suspect/Defendant During Investigation and Prosecution 469 he/she informed his/her of the offence he/she is suspected of having committed and about the measures than have been taken in the case (CCP, Article 81(1) and (2)). The investigative judge will not proceed with the hearing of the suspect until the lawyer is present, unless the suspect expressly renounces his/her right to have the lawyer present (CCP, Article 81(8)). In case of breach of one of these rules (when the suspect is not informed about his/her right to have the lawyer present or when the suspect is being questioned without the lawyer, when he/she expressed his/her wish to have one), the measure is void as well as all other measure taken in result of this measure (CCP, Articles 48-2(7), 126(1)).

4. The Right to Have Another Person Informed about One’s Arrest Unless it is materially impossible or against the necessities of the proceeding, the arrested person has a right to inform a person about his/her arrest. He/she must be informed about this right immediately after he/she is arrested and a telephone placed at his/her disposal (CCP, Article 39(3)). Citizens of foreign states have the right to contact their diplomatic representation. If this right has been violated, the chambre du conseil might declare the arrest void.

5. The Right to Submit Written Statements Luxembourgish criminal procedure does not foresee written statements, though it does not forbid them. In case the suspect delivers a written statement to a public prosecutor or investigative judge, it will be included into the file and the judges of the chambre du conseil or trial judges will appreciate its value in the light of other evidence. It is also theoretically possible that the suspect refuses to answer questions of the investigative judge, but submits a written statement instead. Though it might not be highly appreciated by the authorities, such a strategy is not forbidden and the statement will be taken into account.

6. The Right to be Informed that his/her Statement may be Used as Evidence Luxembourgish criminal procedure does not foresee this right. Therefore the suspect will not be informed about the fact that his/her statement might become a proof of his guilt. It is considered that it is the role of the lawyer to warn his/her client about this risk. Hence, the hearing of the suspect by the police or by an investigative judge will always be preceded by notification that the suspect may have a lawyer, and will not start until the lawyer is present, if the suspect decides to take advantage of this right (CCP, Article 81(8)). In case a person is being heard as a witness and if the testimony suggest he/she may be the author of an offence, the police or an investigative judge shall stop the hearing and inform the person that it might be necessary to have a lawyer present and if necessary wait for the lawyer to arrive before he proceeds with the questioning, for it is expressly forbidden to disrespect defence rights by interviewing the suspect in the capacity of a witness (CCP, Article 73).

470 Luxembourg 7. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement The right to a precise or full and accurate wording of the suspect’s statement is not foreseen in the Luxembourgish criminal procedure. In practice the hearing of the suspect will be noted in the minutes in a condensed form, and only if the interviewing person the judge or the prosecutor if he/she is present deem it necessary, will the suspect’s words be noted verbatim. At the end of the hearing, the suspect shall read the minutes and sign the protocol. If he/she does not find it to be accurate, he/she may refuse to sign it. This fact has to be mentioned in the protocol (CCP, Articles 86-1 and 74). In certain cases, the Luxembourgish authorities use audio or video recording of the pretrial hearing of suspects (for example, when the person heard is a minor).

8. The Right to Refer to Documents During Interview and to Consult Relevant Legal Acts Any person being heard may refer to documents during interview (CCP, Article 38(4)). The documents must be in the possession of a person, which may impede the use of this right in case a person is arrested. The use of this right may not postpone the interview. The law does not impose an obligation to inform the suspect of this right. If this right is disregarded, the suspect may claim nullity of the hearing according to general rules. Luxembourgish criminal procedure does not foresee the right to consult relevant legal acts for two reasons: first because ignorance of law shall not be an excuse, and secondly because the law assures the presence of a lawyer (unless the suspect waives this right) and he/she shall assist the suspect in this respect. Nonetheless, a request of a suspect to be allowed to consult relevant legal acts shall be decided in view of the fair trial rule.

9. The Right to be Informed about Possibilities of Reconciliation with the Victim Luxembourgish criminal procedure does not foresee this right. As it was already mentioned (see section C3), reconciliation with the victim does not, in general, foreclose criminal procedure. However, CCP, Article 24(5) provides for a possibility to send the case for mediation before the public prosecutor decides to prosecute the suspect. Since this possibility is at the sole discretion of the public prosecutor, the suspect will be informed about it only if the public prosecutor decides to make use of the procedure.

10. The Right to be Informed about the Place of Detention The CCP does not provide for any rule in this regard. Nonetheless lack of information is unlikely to be detrimental to the suspect’s rights, since Luxembourg has only one prison, serving also as a pre-trial detention centre.

The Right of the Suspect/Defendant During Investigation and Prosecution 471 11. The Right to be Informed of the Charges This right is provided for only at the hearing. At the beginning of the first hearing by an investigative judge, the latter has to inform the suspect about all the offences that he/she is accused of (CCP, Article 81(1)). Since only the investigative judge is entitled to interview the suspect in this capacity, this is the sole case when the suspect is informed about the charges before the indictment is made known to him/her. Thus he/she will learn about the charges only from the indictment in the situation when the public prosecutor sends the case directly to the trial judge (citation directe). Nonetheless these provisions should be read in accordance with CCP, Article 73 which forbids abuse of defence rights of the suspect by hearing him/her in the capacity of a witness. If the suspect is heard without being informed of the charges, the hearing shall be declared void as well as all the other measures taken in consequences of the hearing according to general rules.

12. Access to the File During Pre-Trial Proceedings As a general rule, the pre-trial phase of criminal proceeding is secret (CCP, Article 8(1)). Nevertheless the suspect and his counsel have right to access the file at certain moments described in the law. If the case is dealt with only by the public prosecutor, the suspect has no right to be granted access to the file. However, at the request of a party, the public prosecutor may grant access to the file. The public prosecutor shall take his/her decision taking into accounts the interests of the requesting party and those of the proceeding, so that the fair trial rule is respected. When the case is being investigated by the investigative judge, the latter is obliged to grant access to the file after the first interrogation of the suspect (CCP, Article 85(1)). During the investigation the parties may request the investigative judge the access to the file. The investigative judge shall decide taking into account the interest of the proceeding, especially the risk of loss or deterioration of evidence and right to adequately assume one’s defence.53 Access to an expert’s report may never be denied (CCP, Article 85(2)). In any event, the access to the file is granted eight days before the chambre du conseil decides whether the case shall be sent to trial or closed (CCP, Article 127(6)). Only after the decision of the pre-trail chamber is the defence entitled to receive a copy of the file.

13. The Right to Interpreter Since three languages may be used in the course of the Luxembourgish criminal procedure (French, German, Luxembourgish), if the suspect speaks one of these languages, the procedure will be carried out in this language. A suspect who does not speak any of these languages has the right to be assisted by an interpreter in all phases of the criminal

53

Cour d’Appel, 13 mars 2007, Pasicrisie 34, 16.

472 Luxembourg procedure.54 The costs of the interpretation shall be borne by the state, if the suspect is acquitted, and by the suspect in the case of conviction. If the suspect is allowed to receive a copy of a document, he/she will obtain also its written translation.

14. The Right to Silence During the Pre-Trial Procedure The Luxembourgish criminal procedure recognises the right to silence during the pre-trial procedure. However, there is no obligation to inform the suspect of this right. Similarly to the information that a suspect’s statements may be used as evidence, it is for the lawyer to inform the suspect of his right to remain silent. Therefore no particular sanction can be applied (eg nullity of the hearing), if the suspect claims that he made his/her statement while ignorant of his/her right to silence.55 The fact that the suspect takes advantage of his/ her right to silence shall not, at least in theory, be detrimental to his/her situation in the criminal process.56 Though the suspect can never be forced to make any declarations or provide any proofs, he/she may be subject to taking of his/her fingerprints or DNA (CCP, Article 39(4)). Samples of blood can be taken only with the suspect’s consent. In case of traffic offences, refusal to submit oneself to a sobriety test is punishable with the same punishment, as foreseen for the most serious offence that could possibly be discovered if the suspect proved to be in a state of intoxication.

15. Rights of Legal Persons in Criminal Proceedings Luxembourg introduced criminal responsibility of legal persons only in 2010, thus no practice has been established so far to this regard. In general, legal persons have the same rights in criminal proceedings as physical persons, with necessary changes with regard to the nature of legal persons (eg detention and arrest cannot be applied, rules on interpretation apply to the representatives of legal persons).

54 55 56

Spielmann (n 47) 995. Ibid, 994. Ibid, 995.

13 Malta STEFANO FILLETTI AND JENNIFER SHAW

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of Criminal Procedure

T

HE MALTESE CRIMINAL Code (CC) makes a clear distinction between the investigation phase and the prosecution phase in criminal procedure. During the investigative phase, the executive police are vested with the authority at law to investigate, detect and prevent the commission of offences, and also have the innate obligation to bring offenders to justice. The latter is enunciated in section 346 CC, which establishes that: It is the duty of the Police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities.1

The police have several tools at their disposal in order to guarantee the fulfilment of their duties. They may use all investigative techniques, including interrogations and controlled deliveries, provided the latter are permissible by law.2 In cases of serious offences which are liable to punishment in excess of three years,3 or in cases of death in suspicious or violent circumstances, the law provides that an inquiring magistrate is to be appointed.4 The magistrate however is only appointed to collect and preserve evidence, and thus serves to collect and preserve the reperti, the corpus delicti, take the statements of witnesses, or photographs, or take samples of the scene of the crime. The magistrate may also appoint experts, whether medical or technical, to assist him in the process of collecting and preserving evidence.5 Nonetheless, it is paramount to note that the magistrate does not assume an investigative role, and the inquiring magistrate’s powers are thus complementary to the powers of the executive police. It follows therefore that it is the police who continue investigating, whereas the magistrate collects and preserves any evidence or traces discovered for future investigations or prosecutions.

1 The Criminal Code (CC), Cap 9 of the Laws of Malta. The rules pertaining to criminal procedure are included in the Criminal Code. 2 An example would include the Dangerous Drugs Ordinance, Cap 101 Laws of Malta. 3 As per CC, s 546. 4 CC, s 546. 5 CC, s 548.

474 Malta The prosecution of offenders in the Criminal Court is a power vested with the Republic of Malta, which is exercised either through the Attorney General, when the crime committed is deemed to be of higher jurisdiction, or the executive police when the offence is determined to be of lower jurisdiction.6 The CC in fact states that the Attorney General shall be the prosecutor before the Criminal Court, and shall indict in the name of the Republic of Malta.7 A prosecution occurs whenever an offender is arraigned in the Court of Magistrates (lower jurisdiction) or the Criminal Courts (higher jurisdiction). In either case, the accused is presented with the charges in the form of a charge sheet, in lower jurisdictions, or a bill of indictment, in the higher jurisdictions,8 clearly explaining the circumstances and facts giving rise to the offence, and the corresponding sections of the law which were allegedly contravened. In prosecutions, the accused will go through the whole trial until final judgment is pronounced, declaring the offender guilty or innocent. If the guilt of the offender is found to subsist, the court will pronounce itself on the punishment to be awarded. At the termination of the trial or prosecution therefore, judgment will be passed on the merits of the case.

2. Sources of Criminal Procedural Law Two fundamental cornerstones of Maltese criminal law are nullum crimen sine lege and nulla poena sine lege. These dicta effectively presuppose that unless there is a statutory offence and penalty, there can be no commission of an offence or prosecution on that matter. Furthermore, the strict application of these rules also dictates that a narrow and non-extensive interpretation of the law is given when applying or interpreting criminal law. As for procedural rights and remedies, once again, these can only be invoked if such right or remedy is clearly ascertained at law. Maltese law does not embrace the law of precedent, and consequently judgments of the Maltese courts, the ECtHR and the ECJ do not create a binding precedent upon the Maltese courts. With respect to the latter, judgments are not automatically binding upon the Maltese courts, although EU Regulations and Directives are automatically so. This is based on the fact that Maltese law does not espouse the law of precedent, and thus it is difficult to envisage a situation wherein a judge would automatically apply to the letter the principles established in a judgment delivered by the ECJ. Of course, if the judgment of the ECJ is given on the basis of EU Regulations, then such Regulations, as transposed into domestic law, will be binding upon the judge. This is not to say that the judge will not consider the principles set out in the judgment. The judge will merely not be automatically bound. The presiding judge or magistrate will however take such judgments into consideration when interpreting or applying the law.

6 7 8

CC, s 346. CC, s 430. CC, s 588ff.

General Aspects of the Procedure

475

3. Bodies Carrying out Investigation and Prosecution (a) The Police The members of the executive police are vested with the sole authority to conduct criminal investigations.9 In their organisational setup, there exist various branches, starting from the village office and culminating into far more specialised branches, which include those for economic crimes or drug-related crimes. In all cases, these offices are equally members of the executive police, and are duty-bound to exercise their powers according to law. As previously highlighted, the police have an obligation to detect and prevent offences. Equally, they are entrusted with the authority to investigate the commission of offences and to bring the perpetrators to justice, the latter being achieved by arraigning perpetrators in court. (b) Prosecution Service The Maltese CC highlights a two-tier system of jurisdiction with respect to the prosecution of offences, the Court of Magistrates (inferior jurisdiction) and the Criminal Court (superior jurisdiction). The prosecution of offences is a prerogative of the Republic of Malta, which is exercised through the police for offences of lesser gravity, such as contraventions, and the office of the Attorney General, for more serious crimes. (c) Investigative Judge Maltese law does not envisage an investigative judge within its procedural framework. There is however the figure of the inquiring magistrate. In cases of serious crime or suspicious or violent deaths, the magistrate is appointed to collect and preserve evidence of the crime, which may later be used in subsequent investigations or trials. This stage of procedure is referred to as the inquiry in genere. The inquiring magistrate may in turn appoint experts in performing his function, culminating in a document referred to as the procès-verbal.10 The role of the inquiring magistrate is particular to Maltese law, as the appointed magistrate does not act as a magistrate sitting in a court of criminal inquiry, and neither as a magistrate sitting in a court of criminal judicature, but as a magistrate ut sic. This essentially dictates that the inquiring magistrate is entrusted to investigate the offence and the facts that he has been so appointed to examine, to go to the scene of the crime and question witnesses, appoint experts, and finally to draw up a procès-verbal, which is deemed to be of probative value to subsequent proceedings. Nonetheless, the magistrate does not perform any of the responsibilities attributed to the executive police, nor those of the prosecution.11

9

Ibid. CC, ss 546–69. 11 The role of the inquiring magistrate is analysed exhaustively in the judgment Republic of Malta v Jason Calleja, Court of Criminal Appeal (Inferior), 3 July 1997. 10

476 Malta (d) Specialised Agencies In criminal trials or prosecutions there are no specialised agencies that can prosecute ex officio and hence on their own accord. There has been discussion in Malta to fashion the Attorney General’s office into a centralised criminal prosecution agency. However, this change has not yet been executed. Specialised agencies or authorities can only commence prosecution for administrative or fiscal offences, if authorisation is granted by the Attorney-General, and typically, this is conducted with the assistance of the police. Examples in this regard include prosecution carried out by the VAT department for VATrelated offences, the Labour Office for offences relating to employment legislation, and the Employment and Training Centre, for certain administrative labour law violations.

3. Threshold for Initiating Investigation and Prosecution An investigation relating to the commission of an offence can be triggered with any form of suspicion. Notice of an offence may be brought to the attention of the executive police in the form of a report, information (which may also be anonymous) or by complaint of the injured party.12 Such notice may also be verbal, and hence would evidently include tipoffs. The police will have to establish whether in fact an offence has been committed, and establish the identities of the suspects, and eventually, of the perpetrators of the offence. On this basis, the police may commence their investigation. There is no minimum legal requirement to initiate prosecution. The police investigate and interrogate persons whom they deem to be suspects. Evidence is collected by the executive police, or by experts engaged by the police or the inquiring magistrate, as the case may be. Once collected, a decision is taken, in certain circumstances with the aid of the Attorney General, as to whether to arraign a person. The court will ultimately decide whether evidence beyond reasonable doubt exists to convict the accused.

4. The Legality or Opportunity Principle Maltese law does not provide a specific reference to when the police are to commence prosecution. It is apparent however, that the policy adopted in Malta that in cases where the police suspect a person to be reasonably involved in an offence, and there is evidence, even if circumstantial, which tends towards the guilt of the offender, that person is arraigned. A literal reading of section 346 CC suggests that the police are duty-bound to detect and investigate offences, and to bring perpetrators to justice, thus suggesting the application of the legality or the mandatory rule.

5. The Status of the Accused or the Defendant A person who is ‘of interest’ during the investigative stage may be questioned by the executive police. In the event that the police are investigating an offence and require a

12

CC, ss 535–45.

General Aspects of the Procedure

477

person’s attendance, they may summon that person to the police station or headquarters for questioning. During this questioning, facts will either be cleared and/or established. A person questioned need not necessarily be a suspect, since the police would be conducting the questioning in order to establish whether an offence would have been committed, or whether that person was involved in the commission of the offence. A person summoned to the police station is not in a state of arrest, since that attendance is a voluntary one.13 The CC underlines the importance of declaring the fact of the arrest: When a person is arrested, the arrest is not lawful unless the person arrested is informed that he is under arrest, even though the arrest may be obvious.14

When summoned, failure to attend upon a request would result in that person being deemed guilty of a contravention, punishable with detention, and liable to be arrested immediately without warrant.15 A person becomes a suspect whenever a police officer, during the course of the investigation or questioning, reasonably believes that the person who has attended voluntarily at the police station or office is involved in the commission of an offence subject to imprisonment. The police officer may arrest such person without warrant, and inform him of this fact accordingly. Immediate notice of the arrest must be given to a magistrate, and the time of arrest is to be recorded instantaneously.16 It is pertinent to point out the difference between a suspect and an accused or defendant at this stage. A suspect is a person who is being investigated, but who has not yet been arraigned in court. An accused or defendant is a person who has been arraigned in court, charged with having committed an offence. 6. Specialised Procedure for Financial Criminal Investigations Financial criminal investigations can prompt the issuance of an investigation order, an attachment order, or a monitoring order. This specialised procedure is triggered when the Attorney General receives information which leads him to reasonably suspect that a person is guilty of an offence.17 The issuance of investigation orders and attachment orders are governed by the Prevention of Money Laundering Act, particularly section 4. An investigation order is one whereby the person named in the relevant order is compelled to produce or grant access to specific material indicated. An investigation order also gives the authority to certain persons mentioned in the order to enter any house, building or enclosure for the purpose of searching for such material.18 Attachment orders are also specified in section 4 and serve to attach in the hands of third parties, all moneys and other movable property due or pertaining or belonging to the

13 CC, s 355AD: (1) ‘where in the course of an investigation, a person attends voluntarily at, or accompanies a police officer to, a police station or office, that person shall be free to leave at any time, unless and until he is informed that he is under arrest’. 14 CC, s 355AC(1). 15 CC, s 355AD(5). 16 CC, s 355AD(2). 17 CC, s 435A. 18 Prevention of Money Laundering Act, s 4(1), Cap 373 Laws of Malta.

478 Malta accused, and prohibit the accused from transferring, pledging, hypothecating or otherwise disposing of any movable or immovable property.19 Monitoring orders are governed by section 4B of the same act. Such orders require a particular bank, specified in the order, to monitor for a certain period of time, the banking operations carried out by the suspect. The Attorney General may subsequently demand the bank to communicate to the person or authority indicated by the Attorney General, all the information resulting from the monitoring.20 The above-mentioned orders are made applicable to all offences by means of CC sections 435A21 and 435AA.22 The procedure of investigation and/or prosecution in the circumstance that any such order were to be issued, is identical to the procedure highlighted above. The difference is that in cases of financial investigations, the police are given additional investigative powers to assist them in monitoring transactions or obtaining evidence. Such orders are issued by the Criminal Court upon the request of the Attorney General, and are to be executed by a member of the executive police, not below the rank of Inspector.23

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect There is no threshold, or minimum legal requirement imposed for one to be considered a suspect. It is generally agreed, however, that the suspicion in all cases must be a reasonable one, thus meaning that a reasonable suspicion, coupled with evidence or circumstances supporting the suspicion, must exist. Maltese law does not prescribe any particular rules regarding persons who are suspects, however, the law does provide rules for persons who are suspects and who are also under arrest. The CC provides for the habeas corpus rules for persons in custody, including the right to legal advice prior to interrogation,24 the right not to be held incommunicado,25 the right to medical assistance,26 and the right not to be detained for a period in excess of 48 hours.27 Although the CC itself does not expressly declare that the executive police are to inform the suspect of his right to silence, the code of ethics prescribed for the police however

19

Prevention of Money Laundering Act, s 4(6). Prevention of Money Laundering Act, s 4B. 21 CC, s 435A(1): ‘The provisions of section 4 of the Act shall apply mutatis mutandis … to any investigation order or attachment order applied for or issued by virtue of this sub-section as if it were an investigation order or attachment order applied for or issued under the same section 4 of the Act’. 22 CC, s 435AA(1): ‘Where the Attorney General has reasonable cause to suspect that a person is guilty of a relevant offence (hereinafter referred to as “the suspect”) he may apply to the Criminal Court for an order (hereinafter referred to as a “monitoring order”) requiring a bank to monitor for a specified period the banking operations being carried out through one or more accounts of the suspect. The bank shall, on the demand of the Attorney General, communicate to the person or authority indicated by the Attorney General the information resulting from the monitoring.’ 23 Prevention of Money Laundering Act, ss 4 and 4B. 24 CC, s 355AT. 25 CC, s 355AS. 26 CC, s 355AS(5). 27 CC, s 355AJ(3). 20

Investigation Measures

479

establishes that a suspect is to be informed of his rights and a caution is to be given of the suspect’s right to remain silent, and that he is under no obligation to answer any questions. Despite the lack of regulation in the CC, several judgments serve to provide a measure of guidance in this regard, and include: —

— —

Police v Mifsud (1955—delivered by the Court of Criminal Appeal) wherein it was held that the caution should be given as though it was an obligation at law such as to avoid any doubts which may subsequently arise. Rex v Briffa (1930—delivered by the Court of Criminal Appeal) which held that declarations made by persons suspect are admissible, even though no caution was given. Police v Cassar (1978—delivered by the Court of Criminal Appeal) which established that although the caution eliminates any problems of voluntariness of declarations, if it is proved by the prosecution that declarations are voluntary, then they are admissible in all cases.

During the course of the interrogation, the police are to refrain from using any force and are to act in a proper manner. Statements are to be reduced to writing, and at the choice of the suspect, signed. A person may refuse to collaborate or answer questions. Nevertheless, in cases where the right to legal advice is availed of, silence in the face of interrogation can result in an inference being drawn during the criminal trial, if the accused then tries to rely on facts which he ought to have mentioned or was reasonably required to mention during the interrogation.28 With respect to legal persons, responsibility for financial crimes will lie with the directors of the company, the company secretary, or any other person having direct control of the company.29

2. Questioning the Suspect Pre-Trial Any person suspected of committing any offence may be subject to questioning. The person can be summoned for questioning even on a slight suspicion of involvement. Where the police reasonably suspect an individual to be involved in the commission of a crime, then that person is to be termed a suspect and the relative caution is to be given to the suspect, as prescribed in the Code of Ethics for the Police Force.30 An interpreter is to be provided, where necessary, and thus where the suspect is not able to understand or speak Maltese or English. If this eventuality were to arise, it is customary for additional officers to be present, to countersign any statements made. A person has the right to legal advice for one hour prior to interrogation, if termed to be a suspect.31 The fact that the police cautioned the suspect of his right to legal advice is to be recorded in a file, used for this purpose. Additionally to this right, the suspect has a

28

CC, s 355AU. CC, s 121D. 30 Vide in this regard CC, ss 355AD and 355AD(2) and the judgments relating to cautions as mentioned above. 31 CC, s 355AT. 29

480 Malta right to remain silent.32 Until 2002 this right was absolute, however, in 2002 amendments were introduced to the effect that where a person remains silent but subsequently in trial relies on facts which he might reasonably have been expected to mention in the interrogation, inferences from his silence may be drawn.33 It is also worth noting that in the event that a suspect decides not to exercise his right to legal advice, in order not to run the risk of having an inference drawn against him or her, then the law provides that with leave of the court, the prosecuting officer may make reference to the fact that the suspect remained silent purposefully during the interrogation. Information subject to legal privilege is protected and confidential information is to be protected, unless the law states otherwise. With respect to financial investigations, where a person or a financial institution is being requested to reveal confidential information, such person or institution is obliged to cooperate in cases where investigation, attachment or monitoring orders are made. The executive police execute this measure upon their own written application to the Criminal Court, which in turn will grant authorisation.

3. Interrogation of Witnesses in the Investigation Stage As previously stated, as soon as a person is reasonably suspected of being involved in an offence, such person shall be given the relevant caution, and the list of his rights. This reasonable suspicion is a subjective threshold interpreted as meaning situations when the officer in question believes such person to be involved in the commission of the crime. This measure is applied to all offences. In all cases, no questions covered by legal privilege, and thus, lawyer-client information, or information given to priests in loco confessionis, may be solicited. Interrogation can only be conducted during the day and cannot be conducted during the night-time.

4. Arresting the Suspect and Detention for Questioning Persons may be arrested without a warrant when caught in flagrante delicto or if they have just committed an offence.34 Otherwise, persons reasonably suspected of having committed an offence may only be arrested with a warrant.35 In such circumstances, the executive police are to inform the duty magistrate in person, of the person against whom an arrest warrant is requested, giving reasons for the arrest and all the circumstances and information available to enable the magistrate to decide on the request. If the magistrate is satisfied that there are adequate grounds, then he will go on to issue this warrant. In the case of urgency, the request for the issue of the warrant and the relative warrant so issued, may be communicated by facsimile.36

32 33 34 35 36

Constitution of Malta, s 39. CC, s 355AU. CC, s 355X. CC, s 355V. CC, s 355AH(1).

Investigation Measures

481

The magistrate must be satisfied that there are reasonable grounds for issuing the warrant, thus meaning that there must be reasons, ideally coupled with some material circumstances, confirming or supporting the reason of the arrest.37 This measure applies to all crimes. Persons under arrest are to be given the reasons for their arrest, in a language which they understand. These reasons must be given as soon as is practicable, and thus essentially, upon, or soon after the arrest.38 Persons arrested also have other habeas corpus rights such as the right the contact a family member or friend, the right to medical assistance, and the right not to be detained for a period in excess of 48 hours, as enunciated above. 5. Pre-Trial Custodial Detention Detention may be exercised following an arrest, and may be performed for the purposes of interrogation.39 This measure applies to all offences. Nevertheless, detention shall in no case exceed 48 hours. At the expiration of 48 hours, the person detained shall either be released or arraigned in court. In order to safeguard the detainee’s rights, the release must be effective and manifest before any rearrest can be performed.40 An interpretation of this measure was given following the landmark decree delivered by Justice JA Filletti in a decree following an application of Joseph Galea et (March 1981). Subsequent landmark judgments in this regard include: — The Application of John Hughes (1982), wherein 30 seconds’ release prior to rearrest was deemed contrary to law; — The Application of Albert Rizzo (1982), wherein three to seven minutes’ release prior to rearrest was deemed contrary to law; — The Application of Maria Bartolo (1982), wherein 15 minutes’ release prior to rearrest was deemed contrary to law. Where a person detained claims his arrest or detention is illegal, or in cases where detention is in excess of 48 hours, such person can file an application to the duty magistrate, requesting the appropriate remedy. This application is to be treated with urgency.41 6. Interception Interception is established in the Security Service Act, which sets out to define interception as obtaining possession of, disrupting, destroying, opening, interrupting, suppressing, stopping, seizing, eavesdropping on, surveilling, recording, copying, listening to and viewing of communications and the extraction of information from such communications.42

37

CC, s 355AGH. Constitution of Malta, s 34(2), and CC s 355AC. 39 CC, s 355AL ff. 40 CC, s 355AJ(3). 41 CC, s 137: ‘Any Magistrate, who in a matter within his powers fails to attend to a lawful complaint touching on an unlawful detention, and any officer of the executive police, who on a similar complaint made to him fails to prove that he reported the same to his superior authority within 24 hours, shall on conviction be liable to imprisonment for a term from 1-6 months.’ 42 Security Service Act, s 2, Cap 391 Laws of Malta. 38

482 Malta The Security Service Act governs the workings of the Security Service to ‘protect national security, particularly against threats from organised crime, espionage, terrorism, sabotage the activities of agents of foreign powers and against actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.’43 The Security Service Act also establishes provisions which cater for the issuance of warrants, should a person be involved in a serious offence. A serious offence would fall within the ambit of the Security Service Act if: (a) the offence involves the use of violence, results in substantial financial gain, or is executed by a large group of persons acting in pursuit of a common purpose; or (b) the offence or offences is one whereby a person who has attained the age of 18, and who has no previous convictions, would be liable to a term of imprisonment for a minimum of not less than three years; (c) the offence or offences, being a crime, is/are an offence which has been scheduled as such by the prime minister in the Government Gazette.44 The warrants that may be issued under the Security Service Act will allow interception (as defined above) by the Security Service. The major difference between the warrants issued under the Security Service Act, and general investigation orders issued under the CC lies in the very function of the Security Service, and thus, the aim of the interception must be geared towards the protection of national security. Therefore, the definition of serious crime within Act must be read in conjunction with the functions of the Security Service in that the offence must be one which is a threat to national security. Another difference also lies in the fact that whereas the judge orders the issuance of an order under the CC, authorisation for the issuance of a warrant under the Security Service Act must be given by the Minister of Justice. 7. Interception of Postal Communications For interception of postal communications to be authorised, a reasonable suspicion of having committed an offence or a serious crime within the ambit of the Security Service Act is required. The order must be of substantial value for the investigation and, in cases of the Security Service Act, of both substantial value and necessity. The CC and the Act do not establish criteria to indicate what ‘substantial value to the investigation’ encompasses. This would be established on a case-by-case basis, depending on the circumstances as they may arise. The requirement of ‘necessity’ is satisfied when the result that is sought may not be reasonably achieved by any other means.45 In cases of serious offences triggering the Security Service Act, postal communications can be intercepted and read. Investigation or monitoring orders may request persons, bodies corporate or institutions to send a copy of all correspondence regarding or sent or received by, or suspect to, the police.46 Any person served with such an investigation or monitoring order is duty-bound to cooperate and to refrain from informing the person being investigated.

43 44 45 46

Security Service Act, s 3. Security Service Act, s 2(3). Security Service Act, s 6(3). CC, s 435A renders applicable the remedies under the Prevention of Money Laundering Act.

Investigation Measures

483

With respect to financial investigations, investigation, attachment or monitoring orders may be issued. Security Service warrants may be issued for serious crimes. It is the police or the Security Services that execute this measure, depending on the case. However, this measure requires written authorisation by the Attorney General for investigation orders, and the Security Services for warrants issued under the Security Services Act. The Criminal Court issues investigation orders, whereas the Minister for Justice issues warrants under the Security Service Act. In all cases, information covered by legal privilege or state secrets are excluded, and may not be intercepted.

8. Interception of Telecommunications A reasonable suspicion of being involved in a crime may trigger the issuance of warrants in this regard. Should a serious offence in breach of the Security Service Act arise, this may result in telecommunications being permitted to be intercepted. The warrant must be of substantial value for the investigation, and in cases of the Security Service Act, of substantial value and necessity. This measure may be applied for crimes or for serious financial crimes. However, information subject to legal privilege or state secret is excluded. With respect to financial investigations, investigation, attachment or monitoring orders need to be issued. The police or the Security Services, depending on the case, execute this measure. Prior to execution, this measure requires written authorisation by the Attorney General for investigation orders, and the Security Services for warrants issued under the Security Services Act. The Criminal Court issues investigation orders, whereas the Minister for Justice issues warrants under the Security Service Act.

9. Monitoring of Telecommunication Traffic Data A reasonable suspicion of being involved in a crime may trigger the monitoring of telecommunications. Furthermore, cases of serious offences within the ambit of the Security Service Act, may also prompt the monitoring of telecommunications. The order must be of substantial value for the investigation and in cases of the Security Service Act, of substantial value and necessity. This measure may be applied for crimes or for serious financial crimes. As is the case above, information subject to legal privilege or state secret is excluded. With respect to financial investigations, investigation, attachment or monitoring orders need to be issued. The police or the Security Services, depending on the case, execute this measure. However, this measure requires written authorisation by the Attorney-General for investigation orders, and the Security Services for warrants issued under the Security Services Act. The Criminal Court issues investigation orders, whereas the Minister for Justice issues warrants under the Security Service Act.

10. Surveillance in the Public and Private Sphere (Acoustic and Visual) A reasonable suspicion of being involved in a crime may trigger the issuance of investigation orders, which would thus include surveillance. Investigation orders in this regard may also be issued with respect to the commission of a serious crime as defined by the Security

484 Malta Service Act. The warrant must be of substantial value for the investigation and in cases of the Security Service Act, of substantial value and necessity. This measure may be applied for both for crimes as well as for financial crimes. Information subject to legal privilege or state secret is excluded. The Security Service Act makes no outright distinction between surveillance in public and public places, nor a distinction between rules for acoustic and visual surveillance.

11. Monitoring of Bank Transactions Monitoring of bank transactions is governed by the CC. A reasonable suspicion of a person being involved in a relevant offence may generate the issuance of a monitoring order by the Attorney General. Such an order will oblige the bank in question to monitor the banking operations being carried out through one or more accounts of the person suspect for a specified period of time. The information that results from the monitoring will be communicated by the bank to the person or authority indicated by the Attorney General.47 In this respect, a relevant offence that would fall under this section would include any offence, not being one of an involuntary nature, which would be punishable with a term of imprisonment or detention for more than one year.48 Where the Attorney General has a reasonable suspicion of a person having committed a relevant offence, the Attorney General may apply to the Criminal Court for the issuance of the said monitoring order.49 With respect to serious financial crimes, and thus, those offences which fall within the ambit of the Prevention of Money Laundering Act, an investigation order may be issued. The relevant offence envisaged under this Act is that of money laundering, whether committed by a person or group of persons or by a body of persons, being either corporate or incorporate.50 In this respect, whereupon the Attorney General receives information that raises a reasonable suspicion that a person (including a body or association of persons, whether corporate or incorporate) has committed an offence, he may apply to the Criminal Court for the issuance of an investigation order. Such order would oblige the person or persons mentioned in the order who are in possession of material which is of substantial value to the investigation of the suspect, to produce or grant access to the material to persons indicated in that order. The persons indicated in the order, to which the material must be produced or granted access to, have the power to enter any house, building or enclosure in order to search for such material.51 With respect to the offence of money laundering, together with or separately from an investigation order, the Attorney General may apply to the Criminal Court for the issuance of an attachment order. An attachment order encompasses: (a) the attachment of all moneys and other movable property due, pertaining, or belonging to the suspect in the hands of persons mentioned in the order, and referred to as the ‘garnishees’; 47 48 49 50 51

CC, s 435AA(1). CC, s 435AA(3). CC, s 435BA(1). Prevention of Money Laundering Act, s 3(1), (2), Cap 373 Laws of Malta. Prevention of Money Laundering Act, s 4(1).

Investigation Measures

485

(b) the obligation of the garnishee to declare in writing to the Attorney General, within 24 hours from the time the order is served on him, the nature and the source of the money and other movable property subject to the order and pertaining to the suspect; (c) the prohibition of the suspect from transferring or otherwise disposing of any movable or immovable property.52 With respect to all the above-mentioned orders, information subject to legal privilege or state secret is excluded.

12. Tracking and Tracing of Objects and Persons Reasonable suspicion of being involved in a crime may give rise to the issuance of investigation orders for the purpose of tracking and tracing objects and persons. An investigation order may also be issued in cases of serious offences within the ambit of the Security Service Act. The order must be of substantial value for the investigation and in cases of the Security Service Act, of substantial value and necessity. This measure may be applied for crimes, as well as for serious financial crimes. As is the case with such orders, information subject to legal privilege or state secret is excluded. With respect to financial investigations, investigation, attachment or monitoring orders need to be issued, as analysed above. The police or the Security Services, depending on the case, execute this measure. This measure applies to all offences. However, this measure requires written authorisation by the Attorney General for investigation orders, and the Security Services for warrants issued under the Security Services Act. The Criminal Court issues investigation orders, whereas the Minister for Justice issues warrants under the Security Service Act.

13. Access to Relevant Premises (Crime Scene) The executive police may gain entry into any premises, house, building or enclosure without a warrant, for the purposes of carrying out a search therein, or: — — — — — —

to arrest any person who has committed, or is reasonably suspected of having committed, or of being about to commit, an offence; where a person is caught in flagrante delicto; where there is imminent danger that the person may escape; where the corpus delicti or the means of proving the offence will be suppressed; to prevent the commission of a crime; where the arrest is necessary as the person is unlawfully at large and has escaped from lawful arrest or detention.53

Otherwise, the police are to request the issuance of a warrant from the duty magistrate. They are to explain the circumstances and the reasons for the issuance of the warrant, and where the magistrate believes that there are reasonable grounds for the issuance of 52 53

Prevention of Money Laundering Act, s 4(6). CC, s 355K.

486 Malta the warrant, then such a warrant is issued. The police can then execute the warrant in the premises.54 This is applicable to all crimes. Barring cases of urgency, search and entry may only be executed during the day and within reasonable hours. Furthermore, the search has to be conducted in a proper manner. A landmark judgment in this regard is that of Lawrence sive Lorry Sant v Commissioner of Police.55 This case concerned a search that was carried out in the plaintiff’s home on a Sunday at 6 am. There was no valid or reasonable motivation as to why the search was carried out so early in the morning, thus this led to the plaintiff claiming a breach of his right to privacy. The Constitutional Court proceeded to declare that searches are to be conducted at a reasonable time. In fact, this was the rationale behind the incorporation of CC, section 355H, which dictates that: No warrant of entry and search may be executed after sunset unless the Magistrate has otherwise authorised the warrant, or unless the executing Police officer has reasonable cause to believe that the purpose of entry and search will be frustrated if the execution of the warrant is delayed.

It subsequently follows that where situations of urgency so arise, a search may be carried out without a warrant after sunset. When entering premises, the police shall refrain from using force. In fact, only the minimum force required to overcome any resistance is to be used, but it is deemed lawful for a police officer to open or break down any door or window, provided that after giving notice of his office, he cannot obtain entry to the premises, house, building or enclosure.56 In executing their power of entry, the police shall give a copy of the relevant warrant to any persons occupying and present at the place searched, or to any person whom the police officer believes to be in charge of the place, giving reasons for the entry and search. If no such person is present who appears to be in charge of the said premises, a copy of the warrant must be left at the premises in a place which is easily visible.57 The warrant of entry and search may extend to other offences, if evidence of other offences is discovered during the search.58 When access is ordered, access to the premises must be given. With respect to financial investigations, attachment orders may also be issued, together with investigation or monitoring orders. The police execute this measure. However, written authorisation is applied for by the Attorney General to the Criminal Court. Investigating orders or monitoring orders may be executed in a clandestine manner. Similarly, in investigations under the Security Service Act, the relative investigation can be performed in a clandestine manner, without notification.

14. Search and Seizure Persons arrested may immediately be subjected to a search. Otherwise, all other searches of premises can only be performed with a warrant issued by a magistrate, who must be satisfied of the existence of reasonable grounds for their issuance. 54

CC, s 355E. Lawrence sive Lorry Sant v Commissioner of Police et, Constitutional Court, 12 January 1994, vol 78 (1994), part 1 page 1. 56 CC, s 355F. 57 CC, s 355I. 58 CC, s 355G. 55

Investigation Measures

487

All persons and vehicles may be stopped and searched. A police officer may exercise such power in a public place if he has reasonable suspicion that the search will lead to the discovery of the possession of things which are prohibited, stolen or acquired as a result of any offence, which may be used or may have been used in the commission of an offence, or which may be of use to the investigation of an offence.59 The cooperation of the person being searched or the registered owner of a vehicle being searched is evidently paramount. The power of the executive police also extends to searches on unattended vehicles, which may be performed in the absence of the registered owner. The search may only be performed if the impossibility of obtaining the attendance of the owner subsists, and provided that the police officer obtains a search warrant from a superior officer, not below the rank of an inspector.60 With respect to searches of persons, an intimate search may only be performed with the authorisation of a magistrate. The police officer must request a magistrate to order an intimate search and must have a reasonable suspicion that the person arrested may have on his person an object liable to seizure.61 An intimate search may be forcibly executed, and the law does not specify that the consent of the person being searched is required. The magistrate is to appoint an expert to carry out the intimate search, which search must in turn be conducted in an appropriate environment. Unless the expert is a medical practitioner, and the person to be searched consents in writing, the expert shall not be of the opposite sex to the person being so searched. The expert is to compile a report, which is to be communicated to the magistrate.62 Non-intimate searches can be executed as of right, and do not require the consent of a magistrate. A non-intimate search may in fact be forced in two circumstances: upon arrest, and after the police have exercised their power to stop a person, as examined above. As is evident, the police execute the power of search and seizure. However, an exception arises in the case of intimate personal searches, which require a trained medical professional to carry out the search.

15. On-line Search of Computers A mere suspicion is sufficient to trigger a search in the ordinary course of police investigations. Where more specific investigation or monitoring orders are put into effect, there has to be a reasonable suspicion that the person is involved in an offence. In the case of an investigation under the Security Service Act, a warrant is issued in cases of suspicion in involvement in serious crime. The order must be of substantial value for the investigation, and in cases of the Security Service Act, of substantial value and necessity. This measure is applied to all offences. Material subject to legal privilege or information given to priests in loco confessionis are protected. Equally, offences classified as state secrets are protected. With respect to financial investigations, investigation orders or monitoring orders may be issued if there is a

59 60 61 62

CC, s 351. CC, s 352. CC, s 355AP. CC, s 355AQ.

488 Malta suspicion of an offence. A serious crime must be suspected in order to trigger the Security Service Act. The police or the Security Services, as the case may be, execute this measure. The Attorney General applies for authorisation for an investigation order to be issued, and the Security Services applies for authorisation for a warrant to be issued under the Security Services Act. The Criminal Court issues investigation orders, whereas the Minister for Justice issues warrants under the Security Service Act. No notification is required for online search of computers. In the case of investigation orders, all searches can, and are to be conducted in a clandestine fashion, to allow the proper monitoring of transactions.

16. Freezing Freezing orders may be issued only when a request is made by a foreign competent authority, in terms of section 435C CC and section 10(1) of the Prevention of Money Laundering Act.63 In cases of ordinary offences, an attachment order can be issued which has the effect of temporarily freezing all one’s assets in Malta, thus all one’s moneys or property, both movable and immovable. The effect is similar to a civil garnishee order. This measure is applicable to all offences, but is governed by section 4(6) of the Prevention of Money Laundering Act.64 The order can only be issued where this will add substantive value to the investigations. Wages and salaries up to an amount of 698.81 EUR, benefits or allowances in accordance with the Social Security Act, government pensions or allowances, court awarded maintenance or maintenance guaranteed under public deed are excluded. Attachment orders have a validity period of 30 days and a second attachment order cannot be issued unless it can be shown to the satisfaction of the court that there is substantial new evidence. Third parties whose property has been affected can file an application to the relevant court to release property, giving evidence of ownership. All persons served with this order must cooperate. The police execute freezing orders, upon the written application of the Attorney-General to the Criminal Court.

17. Production Orders Production orders may be issued when there is a reasonable suspicion of involvement in an offence. In such cases, an investigation or monitoring order can be issued and served on

63

Prevention of Money Laundering Act, Cap 373 Laws of Malta. Prevention of Money Laundering Act, s 4(6): ‘Together with or separately from an application for an investigation order, the Attorney General may, in the circumstances mentioned in sub-section (1), apply to the Criminal Court for an order (hereinafter referred to as “attachment order”): (a) attaching in the hands of such persons (hereinafter referred to as “the garnishees”) as are mentioned in the application all moneys and other movable property due or pertaining or belonging to the suspect; (b) requiring the garnishee to declare in writing to the Attorney General, not later than twenty-four hours from the time of service of the order, the nature and source of all money and other movable property so attached; and (c) prohibiting the suspect from transferring or otherwise disposing of any movable or immovable property.’ 64

Investigation Measures

489

any banks, service providers, institutions or authorities.65 Production orders may be issued with respect to all offences. Within the ambit of such orders, information subject to legal privilege and state secrets are always excluded. All persons requested to cooperate, and thus the banks, service providers and the like, are obliged to cooperate. However, the person under investigation is not obliged to cooperate. The police execute this measure, and if necessary, with the assistance of technical experts. The measure is not executed without authorisation however. The Attorney-General applies for authorisation in writing to the Criminal Court. No notification is required in any investigation following an investigation order and thus may be performed in a clandestine manner.

18. Invoking the Assistance of Experts Experts are to be used where a special skill or knowledge is required, such as with respect to searches with respect to data or in relation to an intimate search on a person. In order to guarantee neutrality, experts are to be independent from the police force. This is established in section 650(2) which ascertains that the experts shall be chosen by the court, and thus ex parte experts are not admissible.66 The police invoke the assistance of experts, by authorisation from the inquiring magistrate or the presiding judge or magistrate, as the case may be, by means of a written decree. An application for review or revocation of the appointment of a particular expert may only be submitted where the investigation is requested in the preliminary stages of trial. In pre-trial investigations, there is no judicial review. 19. Infiltration Infiltration may be authorised if there is a suspicion of involvement in a crime within the ambit of the Security Service Act. This measure is applied with respect to all crimes. An investigation order is issued in this regard for ordinary crimes, and a warrant in terms of the Security Service Act is issued for serious crimes. The persons served with such an order are duty-bound to cooperate. Infiltration will be executed by the police or the Security Services, depending on the case. However, it is the Attorney-General that is to apply for authorisation in writing to the Criminal Court for an investigation order, or the Minister of Justice in cases of warrants in terms of the Security Service Act, as the case may be. 20. Controlled Deliveries An exception to the power of the police to prevent crime is found in the Dangerous Drugs Ordinance, whereby the police will allow an offence to take place, in the form of a controlled

65 Vide Prevention of Money Laundering Act, s 4B with respect to monitoring orders. This is made applicable to all offences in virtue of CC, s 435A. 66 CC, s 650.

490 Malta delivery. This measure is applied with respect to certain crimes expressly provided for in the law, one such example being drug trafficking. For this measure to be applied, a person must be suspected of being involved in an offence.67 Section 30B of the Dangerous Drugs Ordinance establishes that the executive police, and where appropriate, the Customs authorities, may allow, with the consent of the Attorney General or of a magistrate, a controlled delivery to take place. The executive police, or a person under the supervision or direction of the executive police, with the consent of the Attorney General or of a magistrate, may acquire or procure a dangerous drug, or a suspect consignment of money, property or proceeds from any person or place with a view to identifying persons involved in the commission of an offence under the Dangerous Drugs Ordinance.68 C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution A person may be presented in court under arrest or by summons, depending on the gravity of the case. A person arraigned must be presented with a charge sheet, containing a description of the alleged conduct and circumstances of the arrest, and enough detail specified in order to enable the person arraigned to defend himself. In all cases, the Constitution enshrines the right of every person to be afforded a sufficient period of time to prepare his defence.69 Every person has a right to be assisted by a lawyer, and if the person does not have a lawyer, or cannot afford one, the State will provide the services of a lawyer. Prosecutions in Malta are based on an accusatorial system, with the prosecution adducing all relevant evidence against and even in favour of the person accused. This arises in light of the fundamental tenet of Maltese criminal law, that every person is presumed innocent until proven guilty.70 The executive police are the competent authority to investigate offences, and furthermore, the executive police have an additional competence to prosecute in the Inferior Courts. In offences falling within the competence of higher jurisdictions, the police are to liaise with the Attorney General, being the competent prosecuting authority. The Attorney General and the executive police, as the case may be, have an absolute monopoly of the prosecution. If proceedings were not to be opened, an opposition to a decision not to open proceedings can be made, and this by filing a challenge in the Court of Magistrates, against the Commissioner of Police. The Court of Magistrates will briefly examine the nature of the claim, and if necessary order the Commissioner of Police to initiate proceedings. Any aggrieved party (usually the injured party) can file an application to the Court of Magistrates requesting a criminal prosecution.

67 68 69 70

CC, s 453E. Dangerous Drugs Ordinance s 30B(3). Constitution of Malta, s 39. Ibid.

Prosecution Measures

491

The Court is to review the facts produced before it, and decide whether there are sufficient reasons to warrant a prosecution. This does not refer to the possibility of conviction, but rather, whether there is ground for criminal prosecution on a prima facie basis. If accepted, the Court will order the Commissioner of Police to institute criminal proceedings within a defined time period. There is no option to contest a decision to open proceedings on the other hand. 2. Unilateral Disposal of a Case Criminal cases may be terminated at law due to the death of the accused, time-bar, presidential pardon or where the criminal act ceases to be considered a criminal offence. Where the prosecution believes that there is insufficient evidence, it remains the prerogative of the prosecuting officer to withdraw the case. 3. Multilateral Disposal of the Case At present, there are no official or legal rules governing out-of-court settlements or any form of plea-bargaining. Nevertheless, there have been efforts to introduce these measures. Currently in place there is a limited form of sentence bargaining applicable between prosecution and defence. However, this is applicable only at trial, after a plea of guilt has been registered at trial. The CC specifies that: Before the accused pleads to the general issue [of guilty or not guilty] the accused and the Attorney General may request the court, in the eventuality of a plea of guilty, to apply a sanction or measure or, where provided for by law, a combination of sanctions or measures, of the kind and quantity agreed between them and to which the accused can be sentenced upon conviction for the offence or offences with which he is accused.71

4. Reopening of the Case Closed on Different Grounds With respect to the possibility of reopening a dropped case, the ne bis in idem rule is to be considered. This rule is interpreted as meaning that a person cannot be tried twice for the same fact, requiring therefore a court judgment acquitting or convicting a person suspect. The CC establishes in this regard that: [W]here in a trial, judgment is given acquitting the person charged or accused, it shall not be lawful to subject such person to another trial for the same fact72 [emphasis added].

In the event that a case is withdrawn, or where a person is otherwise discharged, the case can be reopened in court as this would not be tantamount to a res judicata, as no judgment would have been passed. Unless the refiling of the case constitutes a breach of the ne bis in idem rule, no remedy is given should a case be reopened.

71 72

CC, s 453A. CC, s 527.

492 Malta 5. Committing a Case to Trial Trial by jury before the Criminal Court can only commence after the case is presented by the police in the Court of Magistrates as a Court of Criminal Inquiry. The procedure in a criminal inquiry is as follows. The Court first hears the report of the police officer on oath, examines the accused without oath, and hears all evidence in support of the report, including testimonies of witnesses, and reports of experts appointed, if any. All evidence is subsequently reduced to writing.73 Subsequently, the Court is to proceed in one of the following ways: (i) pronounce itself as to whether there exist sufficient reasons for a person to be charged by bill of indictment. When the ruling is given, the records of the proceedings are sent to the Attorney General, for the bill of indictment to be drafted and filed in the Criminal Court, who will then set the trial for hearing; (ii) declare that there are not enough reasons for the accused to be proceeded against by bill of indictment and thus order his discharge; or (iii) if of the opinion that the offence does not fall within the jurisdiction of the Criminal Court, however, it falls within the competence of the Court of Magistrates as a Court of Criminal Judicature, and thus the Court of Criminal Inquiry will convert itself into a Court of Criminal Judicature and pronounce itself on the judgment.74 6. Presenting the Case in Court The police or the Attorney General, according to the gravity of the offence and the court in question, are to act as prosecutors.75 The prosecutors have to adduce all evidence in favour or against the accused. The defence have a right to examine any documents that are presented during the course of the proceedings and to cross-examine the witnesses of the prosecution. Once prosecution concludes its case, defence counsel commences to present their case. The defendant or the accused is not obliged to give evidence, however, if the accused chooses to give evidence he cannot refuse to answer questions related to that offence. Defence counsel may produce all relevant information and they may request the assistance of the police for the production of evidence or witnesses. The presumption of innocence is absolute. A case is presented in court by the police in the inferior courts by presenting a charge, and by the Attorney General in the Criminal Court by filing the bill of indictment. There are certain limited bodies such as the VAT department, which can present and prosecute cases themselves for certain administrative or fiscal offences. In all cases, the department must present authorisation to prosecute, given in writing by the Attorney General, and this in respect of each case filed.

73

CC, s 390. This procedure was outlined in the case of The Police v Lawrence sive Lorry Sant, Court of Magistrates, 14 August 1991. 75 The reference to the Attorney General under Maltese law should be understood as the Maltese prosecution service, and thus in practice, a lawyer from the office of the Attorney General would carry out the prosecution. 74

The Rights of the Suspect/Defendant During Investigation and Prosecution 493 D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence CC, section 349(2) prescribes that the lack of any formality or obligation by members of the police force will not constitute an automatic bar to the admissibility of evidence collected.76 It follows that in principle illegally or improperly obtained evidence is admissible (unless explicitly excluded by some other exclusionary rule). The theory of the fruit of the poisonous tree is not applicable in the Maltese legal systems.

2. Admissibility of Written Reports Written reports are only admissible if drawn up by court-appointed experts.

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence Maltese law recognises the presumption of innocence. This effectively means that during the course of the proceedings, every person is presumed to be innocent. This presumption is not considered evidence of the defendant’s innocence and does not require that a mandatory inference be drawn in favour of the defendant. In fact, as Maltese law embraces the accusatorial system, all charges that are brought against the accused must be proved during the proceedings beyond reasonable doubt. A person’s innocence will thus be presumed up until a decision of the court of first instance or of the Court of Appeal, as the case may be, declares otherwise. Recently inferences of fact have been introduced in our law. CC, section 355AU establishes that inferences may be drawn where in any proceedings against a person for an offence, evidence is given that the accused: (a)

at any time before he was charged with the offence, on being questioned by the police, failed to mention a fact relied upon in his defence in those proceedings; (b) on being charged with the offence or officially informed that he may be prosecuted for it, failed to mention any such fact. Such facts must exist at the time the accused could reasonably have been expected to mention when so questioned, charged or informed. In this regard, an inference may only be drawn if it is sown that the accused had received legal advice before being questioned, charged or informed. Inferences may also be drawn in the circumstance that a person refuses to give his consent to giving an intimate sample without good reason. The CC ascertains in this regard that: Where the appropriate consent to the taking of an intimate sample from a person was refused without a good cause, in any proceedings against the person for an offence, those who have to

76 s 349(2): ‘The omission of any precaution, formality or requirement prescribed under this Title shall be no bar to proving, at the trial, in any manner allowed by law, the facts to which such precaution, formality or requirement relates.’

494 Malta judge of the facts may draw such inferences from the refusal as appear proper, and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material.77

However inferences alone cannot lead to conviction and the inferences are only inferences of fact and do not shift guilt onto the accused.

2. The Right of the Defence to Undertake Investigative Measures or Acts in their Own Right The defence has no such right under Maltese law. The defence has no power to investigate, and in the event that an expert opinion is required, ex parte experts may not be appointed. In fact, only court-appointed experts are permissible.

3. The Right to Legal Assistance Any person who is arrested and who is held in police custody has the right to consult privately with a lawyer for one hour prior to interrogation, whether in person or by telephone, if he so requests.78 Prior to being questioned, as early as practicable, the person in custody is to be informed by the police of this right. The fact that the police informed the person in custody of this right must be duly recorded. This right may however be delayed in the following circumstances: (i) if it will lead to interference with or harm to evidence connected with the offence being investigated, or interference with or physical injury to other persons; or (ii) if it will lead to the alerting of other persons suspected of having committed such an offence, but who have not yet been arrested for it; or (iii) if it will hinder the recovery of any property obtained as a result of such an offence; or (iv) if it will hinder the recovery of the value of a person’s proceedings from an offence of drug trafficking, bribery or money laundering.79 At law, no consequences seem to follow from non-compliance with the right to legal advice. However, several recent decrees delivered by the Maltese courts suggest that certain specified circumstances, particularly where the statement is released in the absence of legal advice having been obtained, and is subsequently directly relied upon and improperly used, may lead to the inadmissibility of the statement. Two recent decisions by the Constitutional Court following specific references were delivered, in which the Court took the opportunity to interpret the consequences of non-compliance. The Police vs Alvin Privitera80 and The Police vs Mark Lombardi81 are con77 78 79 80 81

CC, s 355AZ. CC, s 355AT. CC, s 355AT(5). Constitutional Court, 11 April 2011. Constitutional Court, 12 April 2011.

The Rights of the Suspect/Defendant During Investigation and Prosecution 495 sidered landmark judgments, in that they established the rule that releasing statements in circumstances in which the suspect does not have the right to legal advice constitutes a violation of the right to a fair trial. This applies also in the case where the CC did not provide for the right of legal assistance or where the CC did provide for this right but was not yet in force. Therefore these statements, even though not tainted with any form of impropriety still are considered violating the right to fair trial. The consequences in this case meant that in The Police vs Alvin Privitiera the Court excluded the statement released,82 as was confirmed in The Police vs Mark Lombardi.83

4. The Right to Inform Another Person About One’s Arrest According to section 34 of the Constitution of Malta a person must be informed in a language in which he understands of the reasons for his arrest. Section 355AS CC also provides that it shall be the duty of the police to inform, without undue delay, the person arrested or detained, of his right to request that a relative or a friend be informed of his arrest and of his whereabouts. This right shall only subsist unless such relative or friend is reasonably suspected of being involved in the offence being investigated. If the person arrested avails himself of such a right, the relative or friend shall be informed accordingly without delay. A record of the manner in which the police discharged their duty shall be kept. This record shall be signed by the accused. In terms of the above-mentioned section 355AS CC, a delay may be authorised by a magistrate if there are reasonable grounds for suspecting that giving such information may be prejudicial to the investigation or to the recovery of things, or that it may alert other persons who are connected with the offence and who are not in police custody. However, such a delay may be not later than six hours from the time of the arrest. The suspect is to be informed about this right immediately upon arrest. The consequences for not respecting this right are none other than compensation for police impropriety.

5. The Right to be Informed that his/her Statements may be Used as Evidence The CC does not include this right. However, the Code of Police Ethics requests the caution to be given prior to the interrogation. Judgments by the Court of Criminal Appeal suggest that although the cautioning is not a legal requirement, it is nonetheless desirable. The police must inform the person in custody of this right prior to interrogation, when that person is considered to be a suspect.

6. The Right to Refer to Documents During Interrogation There is no specific right to this effect, although this may be allowed. 82 83

Decree given on 7 July 2011 by MM Farrugia. Decree given on 14 July 2011 by MG Grixti.

496 Malta 7. The Right to be Informed About the Place of Detention According to section 355AE(2), where there are grounds for the continuation of an arrest, the person arrested shall be taken to a designated police station as soon as practicable, and in no case later than six hours from the time of the arrest. There is only one designated police station in Malta, this being the General Headquarters. Illegal arrest will subsist if the suspect is not so transferred for no reasonable purpose. However, the consequences of such a declaration, with respect to this section, does not arise from the law. 8. The Right to be Informed About the Charges Upon arrest a person is to be informed of the reasons for arrest meaning that he is to be informed of the offence for which he is being arrested with relevant information (including details of time, place circumstance etc) to prepare for an adequate defence. 9. The Right to Assistance for the Suspect During the Pre-Trial Procedure A suspect may request medical assistance, legal advice and the assistance of an interpreter. These shall be considered in turn. The right to medical assistance is enshrined in section 355AS(5) and establishes that an arrested person shall, at his request, be allowed to consult a medical adviser of his choice, provided that a medical adviser is readily available. The right to legal advice has been discussed above with respect to this right being available for one hour prior to interrogation. However, with respect to the pre-trial procedure and thus subsequent to the interrogation, if the arrested person is not taken to court within 48 hours, he shall be released from custody. During the 48-hour detention period, arrested persons do not have a right to a defence lawyer. Pre-trial detainees will be granted access to a lawyer once charges have been filed. Maltese law provides for obligatory defence, and thus, where the suspect cannot afford a lawyer, or where the accused is arraigned under arrest and had no time to appoint a lawyer, the State will provide the suspect with a lawyer. The suspect may choose whether to be represented by the lawyer appointed, or to defend himself without a lawyer. Where the accused does not have the means to engage another lawyer, he cannot choose to appoint a lawyer of his choice. The right to assistance by an interpreter is found in section 355AC(2) and is available when the suspect cannot speak Maltese or English. The costs for the interpreter are borne by the State. The interpreter must be qualified and competent. The suspect however does not have a right to the written translation of the documents, or to an oral translation or written documents. Notwithstanding this, the suspect has the right to request that his statement be read out to him by the interpreter, before deciding whether to sign the said statement. 10. The Right to Silence During the Pre-Trial Procedure During the pre-trial stage, the suspect has the right to silence, and must be informed of this right orally by the executive police prior to interrogation, when cautioned.

The Rights of the Suspect/Defendant During Investigation and Prosecution 497 The executive police must also caution the suspect that inferences may be drawn during trial from silence subsequent to obtaining legal advice, if the suspect attempts to rely on facts which he ought to have mentioned or was reasonably required to mention during the interrogation.84 It is of paramount importance to note that such inference alone cannot lead to conviction, as the inference is only one of fact, and thus, as a consequence, would not shift guilt onto the accused. In the stage preceding trial, the suspect may continue to refuse to tender any relevant information or documentation to the executive police, a feature which further reinforces the absolute nature of the right to silence in the Maltese legal system. The unconditional features of the right to silence are also emphasised with respect to the fact that the suspect is not duty-bound to disclose his defence to the prosecution. However, during the course of the trial, the duty of disclosure does require a declaration of documents and witnesses to be called in trial. 11. Rights of Legal Persons in Criminal Proceedings Legal persons cannot be held criminally responsible, however, their legal representatives may be held so responsible. The above rights apply to the legal representatives of such legal persons.

84 CC, s 355AU. This section also provides a further inference, which establishes that an inference may also be drawn if at any time before he was charged with the offence, on being questioned by the police, the suspect failed to mention a fact relied upon in his defence in those proceedings.

14 Poland CELINA NOWAK AND SŁAWOMIR STEINBORN

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

T

HE POLISH CRIMINAL process is divided into three main phases: the preparatory proceedings (Poste˛powanie przygotowawcze), the proceedings before the court (Poste˛powanie Sa˛dowe), and the enforcement proceedings (Poste˛powanie wykonawcze). The Code of Criminal Procedure (CCP) regulates the first and the second stages, the Code of Execution of Criminal Sentences the third. The preparatory proceedings open when a decision on its initiation is issued, and ends with its discontinuation or bringing the indictment to the court. Its purpose is, first of all, to establish whether a prohibited act had been committed and whether it constitutes an offence; to identify and if necessary capture the perpetrator; to clarify the circumstances of the case; and to collect, secure and record evidence for the court, to the extent required (CCP, Article 297 § 1). The preparatory proceedings can be divided into two sub-stages: proceedings in rem and proceedings in personam. The borderline is the moment when the suspect is formally charged with committing the offence. Simplifying the matter a bit, it can be stated that during the first phase the actions of the prosecution agencies focus on establishing whether an offence has been committed, and on identifying its perpetrator. Actions undertaken during the second phase are meant to collect evidence and to prepare the indictment to be presented to the court. Only that evidence which has been collected under preparatory proceedings and pursuant to provisions of the CCP may be used in court. The only exceptions are certain operational intelligence activities conducted by the police (see preliminary remarks to section B). The powers of authorities conducting preparatory proceedings are in principle the same during both phases. However, not every agency authorised to conduct preparatory proceedings may bring the indictment to the court and support the accusation. The proceedings before the court are the phase during which the court examines the case within the limits drawn by the indictment. Its outcome is usually the judgment, which determines the responsibility of the accused for the offence with which he/she had been charged.

General Aspects of the Procedure 499 2. Sources of Criminal Procedural Law As a principle, criminal procedural rules require a statutory base. In regard of Article 176(2) of the Constitution of the Republic of Poland (PC)1 the organisational structure and jurisdiction as well as procedure of the courts shall be specified by statute (ustawa). Also PC, Article 31(3) requires that any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Other sources of criminal procedural law are ratified and promulgated international agreements (eg ECHR), as well as regulations (ordinances) issued on the basis of specific authorisation contained in statutes.

3. Bodies Carrying Out Investigation and Prosecution Powers of particular authorities to conduct preparatory proceedings need to be examined in light of the fact that such proceedings may be conducted in two distinct forms: investigation (s´ledztwo) and inquiry (dochodzenie). This is of great significance in the Polish criminal procedure. The type of proceedings determines, among other matters, which authorities are to carry them out, the scope of matters involved, permissible time scale and degree of formality of the proceedings. A public prosecutor (PP)2 is empowered to carry preparatory proceedings with respect to any matter. At this stage a PP plays a key role as a dominus litis of preparatory proceedings which he or she conducts and supervises. A PP, therefore, can initiate preparatory proceedings or take over the proceedings initiated and conducted by any other authority (CCP, Article 326 § 3 S 3). By virtue of CCP, Article 311 § 1 a PP must conduct an investigation personally with respect to the cases stated by CCP, Article 309 (eg in case of crimes and some more serious misdemeanours within the jurisdiction of the district court (sa˛d okre˛gowy) exercised in the first instance, when a person suspected is a judge, a PP or an officer of other prosecution agencies). In some of these cases the PP is obliged to conduct an investigation personally, ie she/he cannot transfer it to the police (CCP, Article 311 § 2). In other cases a PP following the initiation of an investigation can order the police to conduct it entirely or partly, and in reality this is a rule. The police3 conduct preparatory proceedings in cases where the law requires an inquiry, unless the proceedings are lead by a PP or any other authorised agency. According to CCP, Article 325b § 1, the inquiry is conducted with respect to (1) offences within the regional court’s (sa˛d rejonowy) jurisdiction which carry the penalty of deprivation of liberty not exceeding five years (with an exception of offences stated in CCP, Article 325b § 1) and

1 The Constitution of the Republic of Poland of 2 April 1997, Journal of Laws of the Republic of Poland 1997 No 78 Item 483. 2 See also E Weigend, A Sakowicz, ‘Strafrechtspflege in Polen’ in Überlegungen zu einer europäischen Strafrechtspflege: Ein rechtsvergleichendes Projekt des Max-Planck-Instituts für ausländisches und internationales Strafrecht (in manuscript) 38f. 3 Ibid 25f.

500 Poland (2) some other offences listed in CCP, Article 325b § 1 (eg burglary, fraud). However, with respect to offences against property, it applies only when the value of the object of offence (eg a stolen car) or actual or potential damage does not exceed 100,000 zloty. According to CCP, Article 325c CCP an inquiry is not carried out against the suspect who is deprived of his/her liberty (eg imprisoned, in pre-trial detention) and if the suspect is minor, deaf, mute, blind or when an expert witness in psychiatry called to testify in the case finds that the accused at the time of committing the alleged offence or during the proceedings was either insane or his sanity was significantly limited. In all of the above cases an investigation, rather than an inquiry, has to be conducted. Preparatory proceedings can be also conducted by other authorities. This competence, however, is always closely linked to the jurisdiction of these bodies, and limited to specified matters. There are for instance the Internal Security Agency (Agencja Bezpieczen´stwa Wewne˛trznego), the Central Anticorruption Bureau (Centralne Biuro Antykorupcyjne), the Border Guard (Straz˙ Graniczna), the Customs Service (Słuz˙ba Celna), the Military Gendarmerie (Z˙andarmeria Wojskowa), agencies of the Trade Inspection (Inspekcja Handlowa), guards of the Forrest Guard (Straz˙ Les´na), the Customs Office (urza˛d celny), Tax Office and fiscal control inspectors (urze˛dy skarbowe, inspektorzy kontroli skarbowej).

4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle According to CCP, Article 303, preparatory proceedings are initiated upon the reasonable suspicion of an offence having been committed. This arises when existing, objective information about an event, in a subjective conviction of investigative authorities, indicates the possibility of an act having been committed which establishes all elements of an offence. The suspicion of committing an offence does not have to be a certainty, as the purpose of preparatory proceedings is, among others, to establish whether a prohibited act was committed, and whether it meets the statutory criteria of an offence (CCP, Article 297 § 1 (1)). However, the authorised body’s sole suspicion of an offence having been committed is not sufficient. Initiation of preparatory proceedings does not depend, by virtue of the statutory provisions, on the existence of any specific facts which are supposed to justify that conviction. It is important, however, that information obtained is precise and justifies suspicion that an offence was committed. A source and a form of the obtained information are not relevant either. It may be facts established by prosecution authorities, confidential information, oral, telephone, email or written notices coming from private individuals, institutions, local organisations and state and private companies etc, self-incrimination (intentional or unintentional), information coming from the press, radio, TV and also anonymous information, if its content has been verified and confirmed by the prosecution authority.4 Polish criminal procedure is based on the legality principle. By provision of CCP, Article 10 § 1: the authority responsible for prosecuting offences is bound to initiate and conduct preparatory proceedings and a public accuser is also bound to bring charges and support them with respect to an offence prosecuted ex officio.

4 See J Grajewski, Przebieg procesu karnego, 5th edn (Warsaw, Beck, 2012) 20–21; T Grzegorczyk, Kodeks poste˛powania karnego: Komentarz, 5th edn (Warsaw, Lex Wolters Kluwer, 2008) 642–43.

General Aspects of the Procedure 501 This means that from the moment of becoming aware of the justified suspicion of an offence having been committed, the authorised body is required to initiate and conduct criminal proceedings, if the prosecution of the alleged offence prosecuted ex officio is legally permissible and in fact justified. That obligation applies to offences prosecuted ex officio. The principle of legality does not apply to offences prosecuted upon a motion of an injured person, unless the motion is filled, as well as offences prosecuted on private accusation. However Polish criminal procedure makes provisions for some exceptions in favour of opportunity, and therefore the possibility of waiving prosecution because of its futility:5 — —

failure to prosecute because of diplomatic immunity (CCP, Article 10 § 2); absorption discontinuance (umorzenie absorpcyjne) (CCP, Article 11)—this means abandonment of prosecution of the accused in case of misdemeanour punishable by imprisonment up to five years if the accused’s sentence would be manifestly impracticable because of the nature and amount of penalty imposed already for another offence; it comes with a clear disproportion between the punishment finally imposed and the penalty which would have been imposed in the proceedings subject to discontinuance; abandonment of prosecution is permissible under a condition that this does not prejudice the interests of the injured person (victim), — discontinuance of the proceedings against a suspect who is a crown witness ('swiadek koronny) and who has made an exhaustive testimony before the court incriminating persons involved in the offence committed in an organised group or organisation aimed at committing the offence (Law on Crown Witness, Article 9(2)6).

5. The Status of the Accused/Defendant To determine who is the subject of interest to prosecution authorities, and therefore a person who is actually suspected of committing an offence, Poland’s CCP uses the term ‘suspected person’ (osoba podejrzana), as opposed to ‘suspect’ (podejrzany), for the person to whom charges have been presented formally in the preparatory proceedings. A suspected person does not have the status of the party in the criminal proceedings, or its rights. Prosecution authorities may take against them only such action and impose only such obligations to which they are expressly permitted by statute. Such a person may be arrested (CCP, Article 244 § 1), may be subjected to interception of communication (CCP, Article 237 § 4), and may be obliged to submit to personal search and other forms of examination not linked to violation of the integrity of the body, eg taking fingerprints, photographing, taking blood (CCP, Article 74 § 3). The suspect is the person to whom a charging decision was issued or against whom, without issuing a charging decision a charge has been made in connection with the accession to the interrogation as a suspect (CCP, Article 71 § 1). The accused, however, is the person against whom the public accuser (oskarz˙yciel publiczny)7 brought an indictment

5 See J Grajewski, Prawo karne procesowe: Cze˛´ s´c ogólna, 3rd edn (Warsaw, Beck, 2011) 98–99; S Waltos´, Proces karny: Zarys systemu, 10th edn (Warsaw, Lexis Nexis, 2009) 298–300. 6 Law of 25 June 1997 on Crown Witness (ustawa z 25.6.1997 r o ´ s wiadku koronnym), Journal of Laws of the Republic of Poland (Dziennik Ustaw) 2007 No 36 Item 232. 7 Polish criminal process law makes distinction between public prosecutor (prokurator) and public accuser (oskarz˙yciel publiczny). The first is a body entitled to conduct preparatory proceedings, bring an indictment to

502 Poland to court, and also a person, for whom the public accuser made an application for a ‘conditional discontinuation of the proceedings’ (CCP, Article 71 § 2). In other words, the suspect has the status of a passive party in preparatory proceedings, while the accused is a passive party in the trial stage of criminal process. A suspected person becomes a suspect at the moment of presentation of charges (CCP, Article 313). This occurs in a case where the data existing at the time of initiating preparatory proceedings or gathered in the course of it, sufficiently justify the suspicion that an offence has been committed by a specific person. The provision of CCP, Article 313 § 1 indicates that the authority has to present charges in the event of a ‘sufficiency’ of evidence pointing to a specific person as the perpetrator of the crime. Premature presentation of charges, with a lack of the sufficient evidence base, as well as postponing the moment of their presentation, is a violation of CCP, Article 313 § 1. In the latter case, the failure to present charges prevents the person using the rights which are enjoyed by a suspect, including the right to defence and the assistance of defence counsel (CCP, Article 6), the right to remain silent (CCP, Article 175 § 1), or the right to participate in legal proceedings (CCP, Articles 315, 318). Judicature has emphasised, therefore, that it is not permissible to question as a witness a person for whom in the course of preparatory proceedings sufficient evidence as to justify presenting charges has been gathered, and such practice is treated as a flagrant violation of the rules of criminal procedure.8

6. Specialised Procedure for Financial Criminal Investigations In addition to the CCP governing proceedings in criminal cases, the Fiscal Criminal Code (FCC)9 containing the substantive and procedural rules relating to fiscal offences (przeste˛pstwa skarbowe) and fiscal contraventions (wykroczenia skarbowe) is in force in the Polish legal system. The FCC regulates rules on liability for tax offences and tax contraventions, types of these offences and contraventions (tax offences and contraventions and for grants and subsidies, customs, foreign exchange and against organisation of games of chance), rules of criminal proceedings in matters of fiscal offences and fiscal contraventions and rules for execution of the decisions in those matters. Principles on which fiscal criminal proceedings10 are based are the same as in ordinary criminal proceedings (the FCC contains only provisions regarding differences in relation to the ordinary procedure; in other respects CCP rules apply). Fiscal criminal proceedings are treated as a special procedure in relation to ordinary proceedings contained in the CCP.11 Fundamental differences in fiscal criminal procedure at the stage of preparatory proceedings are that the FCC empowers fiscal authorities to conduct preparatory proceedings and bring charges before courts, the introduction of specific rules regarding freezing of assets court and present the case during trial stage of process. The second is a process party entitled to present the case before court—this can be not only public prosecutor, but also another authority (see section C.5). 8 See judgment of the Supreme Court of 21 January 1982 II KR 338/81 OSNKW (Official Collection of Decisions of the Supreme Court—Criminal Chamber and Military Chamber) 1982, no 3 Item 14; decision of the Supreme Court of 26 April 2007 I KZP 4/07 OSNKW 2007 no 6 Item 45. 9 Fiscal Criminal Code of 10 September 1999 (ustawa z 10.9.1999 r—Kodeks karny skarbowy), Journal of Laws of the Republic of Poland 2007 No 111 Item 765. 10 See also Weigend, Sakowicz (n 2) 74–77. 11 See Waltos ´ (n 5) 46.

Investigation Measures

503

and the possibility of voluntary admission of liability by the offender who has committed a fiscal offence. As a rule, financial authorities of preparatory proceedings conduct them alone, in cases of fiscal offences and are subject to supervision by the superior bodies over them. Those bodies are not subject to the PP’s organisational supervision. The PP, however, shall exercise supervision over the activities at preparatory proceedings conducting in the form of an investigation by financial authorities and can take any case carried out by those authorities to conduct it personally.12 The PP by law supervises the preparatory proceedings only when it is necessary to give an opinion on the state of mental health of the accused, and the PP can invoke expert psychiatrists or when it is necessary to request pre-trial detention of the suspect (FCC, Article 122 § 2). Financial authorities of the preparatory proceedings enjoy most of the powers of the PP in the ordinary preparatory proceedings (FCC, Article 122 § 1) with an exception when the financial authorities have no competence to act independently, but must apply to the PP to conduct the certain activity eg to order to search premises and persons, to exempt person to be questioned from the obligation to maintain secrecy or confidentiality with respect to the profession or function, to issue a freezing property order (FCC, Article 122 § 2).

B. INVESTIGATION MEASURES

The CCP regulates the matter of evidence collected during criminal proceedings by the agencies conducting that proceedings. As a rule, only evidence collected on the basis of CCP provisions may be the factual basis for determination of the case. Aside from that, Polish law contains the category of operational intelligence activities (Czynnos´ci operacyjno-rozpoznawcze), which may be conducted by the police and by certain other agencies (eg the Internal Security Agency). Their purpose is to prevent and detect offences, identify their perpetrators, and in some cases also to obtain and preserve evidence of offence. They do not have the nature of formal acts of criminal proceedings, and their outcomes can only sometimes be used as evidence in criminal proceedings. The operational intelligence activities are usually conducted before the initiation of criminal proceedings, and provide material which serves as justification for preparatory proceedings. However, currently there are no legal obstacles to perform these activities after the commencement of preparatory proceedings.13 These activities are not subject to supervision by the PP, and the PP’s approval is not a general precondition. Such approval must be obtained only with reference to certain activities: the application of operational monitoring, controlled purchase and controlled delivery. The PP is entitled to become familiar with the results of operational intelligence activities for which his/her approval is required. Information collected in the course of operational intelligence activities, which had not been formally recorded, is not considered evidence in the course of criminal proceedings. The principle of legality means that the police, in the course of criminal proceedings, are obliged to use all materials acquired in the course of operational intelligence activities,

12

See L Wilk, J Zagrodnik, Prawo karne skarbowe (Warsaw, Beck, 2009) 506–07. A Taracha, Czynnos´ci operacyjno-rozpoznawcze: Aspekty kryminalistyczne i prawnodowodowe (Lublin, Wydawnictwo Uniwersytetu Marii Curie-Skłodowskiej, 2006) 215–16. 13

504 Poland which are significant for criminal proceedings.14 In cases where the preparatory proceedings are conducted by the PP, this means there is an obligation to pass these materials on to him/ her. These materials can justify the initiation of preparatory proceedings. The legislator has clearly regulated the manner in which evidence obtained as the result of operating surveillance, controlled purchase and controlled delivery may be used in criminal proceedings. In the case of obtaining evidence which allows to initiate criminal proceedings, or is relevant for an ongoing criminal proceedings, the National Police Commander (Komendant Główny Policji) or Regional Police Commander (komendant wojewódzki Policji) passes to the appropriate PP all materials collected in the course of applying the above described measures, if necessary, accompanied by a motion to initiate criminal proceedings. In the course of court proceedings (trial), the materials are read aloud, under CCP, Article 393 § 1.

1. Formal Designation as a Suspect A person suspected of having committed an offence, formally becomes a suspect with the issuing of a charging decision by the authorities of preparatory proceedings (CCP, Article 71 § 1). This occurs when data existing at the time of the initiation of preparatory proceedings or in the course of it justify reasonable suspicion that a specific person has committed an offence (CCP, Article 313 § 1). The factual basis for presenting charges has to be more complex than for the mere initiation of preparatory proceedings (see also section A6). Presenting charges is the responsibility of authorities conducting preparatory proceedings. In inquiry it is executed by the authority, which has instituted and carries the preparatory proceedings (ie the police) and does not require an authorisation of PP or judge. In the course of investigation a charging decision may be taken only by the PP (CCP, Article 311 § 3). The Polish legal system does not provide for judicial review of presenting charges. In order to present charges to the person suspected, the body authorised issues a formal charging decision (postanowienie o przedstawieniu zarzutów) and then immediately announces it to the suspect and interrogates him. A suspected person against whom charges are to be presented is required to appear for the authority conducting preparatory proceeding and participate in that activity, or may also be arrested and brought to the court in order to do so. The suspect may require to be provided with an oral basis of charges, and a statement of reasons in writing (CCP, Article 313 § 3). In accordance with CCP, Article 301 a suspect may request an interview with the participation of his appointed defence lawyer. Presenting charges involves interrogation of the suspect and therefore the participation of the defence lawyer may be due to the application of CCP, Article 301 (see also section B2). A special, simplified form of formal designation as a suspect can be held in inquiry. It does not involve a decision to present charges when a suspect is not under pre-trial detention. At the beginning of interrogation a suspected person is orally informed of the charges, which shall be entered in the interrogation record, and from that moment a suspected person shall be considered as a suspect (CCP, Article 325g). In an emergency or in urgent cases, particularly when there is a danger of losing evidence, an investigative authority may, within the so-called ‘necessary inquiry’, question a

14

Ibid 76.

Investigation Measures

505

person suspected of having committed an offence even before a charging decision has been made. However, charging decision requirements must be complied with, including a certain level of probability that the offence has been committed by a specific person. The condition is that the necessary requirements are met to draw up a charging order, especially the degree of prima facie evidence that the offence had been committed by that person (CCP, Article 308 § 2). The interview then begins with the suspect being informed of the content of the charge, and within five days from the date of the questioning a charging decision being made, or if there are no grounds for charging the suspect, the proceedings against the person questioned shall be terminated (CCP, Article 308 § 3).

2. Questioning the Suspect Pre-Trial A suspect shall be questioned in the course of presenting charges (CCP, Article 313 § 1). Interrogating a suspect should be carried out in the course of every preparatory proceedings in which charges are made. A suspect is obliged to participate in an interrogation, but it does not affect his right to remain silent (see also section E16). In accordance with CCP, Article 171 § 5, it is prohibited to influence testimony by duress or unlawful threat, or to use hypnosis or chemical or technical means affecting mental processes of the person questioned, or to seek to exploit unconscious body reactions in relation to questioning (eg by polygraph). According to CCP, Article 301 the suspect may request the presence of his appointed defence counsel when being interrogated.15 There is a prevailing view in the doctrine that the provision of that article means that an authority is obliged to enable a defence counsel to participate in questioning.16 However, if the defence counsel fails to appear or is otherwise absent, this does not hinder the interrogation. At the first questioning involving the presenting of charges, there is a practical difficulty in that only a person who has already become a suspect is entitled to appoint a defence lawyer, and such status is not acquired until the moment of presenting charges. Until that moment, such person does not usually know whether decision presenting charges has been issued, and therefore whether he has acquired the status of a suspect. Once a decision to present charges is announced to a suspect, the authority may commence to question the suspect and is not obliged to enable the suspect to instruct a defence lawyer and notify him of the date of the hearing. Practically, the authority must allow the lawyer to participate in the action only when the suspect appears at once with his lawyer, or when the suspect is presented with further charges and has already instructed a counsel. If the suspect, on the other hand, applies for a public defender, the authority is not obliged to delay the hearing. The above rules do not mean that an application for a new hearing date, which enables the suspect to bring a lawyer to the hearing, may not be considered. After instructing a counsel the suspect may request another hearing in the presence of his defence lawyer, as the statutory provision does not limit that right to the first questioning. The suspect’s

15 On legal assistance, see also D de Vocht, in E Cape, Z Namoradze, R Smith, T Spronken (eds), Effective Criminal Defence in Europe, vol 87 (Antwerp, Intersentia, 2010) 445–54. 16 Grajewski (n 4) 59; RA Stefan ´ ski, in J Bratoszewski, L Gardocki, Z Gostyn´ ski, SM Przyjemski, RA Stefan´ ski, S Zabłocki (eds), Kodeks poste˛powania karnego: Komentarz, vol 2, (Warsaw, Dom Wydawniczy ABC, 2004) 310; cf P Hofman´ ski, E Sadzik, K Zgryzek, Kodeks poste˛powania karnego: Komentarz, vol 2 (Warsaw, Beck, 2007) 22–23.

506 Poland request is binding.17 A defence lawyer must be notified of the place and date of an interrogation. In case of further questioning the authority must notify a defence lawyer of the date and place of the interview of the suspect, and carry out the interview in the presence of the defence lawyer, at the suspect’s request. However, there is a prevailing view in the doctrine that, because of the wording of CCP, Article 301, the right to request a hearing with the participation of defence lawyer is exhausted after a single hearing.18

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) It is admissible to question a witness from the very beginning of the preparatory proceedings. It depends only on whether he/she posses relevant and important information for these proceedings. In practice, anyone can be heard as a witness unless specific restrictions apply. Not only a court, PP or police can summon and interrogate a witness, but also other authorities conducting the preparatory proceedings. Witnesses in preparatory proceedings shall have the following obligations: (1) to appear (on pain of a fine of maximum 10,000 Polish zloty) as ordered by an authorised body (CCP, Article 177 § 1), (2) to give evidence unless a statutory exception applies (CCP, Article 177 § 2), (3) to tell the truth and not to conceal what she/he knows, otherwise she/ he is subject to criminal liability (CCP, Article 188 § 1, CC, Article 233), (4) to undergo visual inspection of the body and medical examination—this applies to an injured person (CCP, Article 192 § 4), and (5) to undergo questioning with the participation of expert physician or expert psychologist if there is doubt about the witness’s mental condition, mental capacity, perception capability or ability to recall observations (CCP, Article 192 § 2). This mode of interrogation has to be ordered by the PP or the court. It is not allowed to summon as a witness a counsel or a barrister who advised a person arrested by the police as to the facts he has learnt while advising or dealing with the case (CCP, Article 178 pkt 1) and a priest as to the facts he has learnt during a religious confession (CCP, Article 178 pkt 2). It is also not allowed to interrogate as a witness persons who are required to keep a state secret—as to the facts to which that obligation applies, unless the authorised superior body releases them from the obligation (CCP, Article 179), as well as public notaries (notariusze), attorneys (adwokaci), legal advisors (radcy prawni), tax advisors (doradcy podatkowi), physicians, journalists who are obligated to keep professional secrets as to facts to which that obligation applies unless the court, having concluded that their testimony is necessary for the administration of the justice and the relevant fact may not be determined by any other evidence, releases them from the obligation (CCP, Article 180 § 2). Releasing a journalist from an obligation must not cause the release of information that might lead to the identification of the source of a press report, a letter to the editor or other material of the same nature as well as the identification of persons providing information published or submitted for publication when these persons explicitly

17

Stefan´ ski (n 16) 54. J Grajewski, in J Grajewski, LK Paprzycki, S Steinborn (eds), Kodeks poste˛powania karnego. Komentarz, vol 1 (Warsaw, Wolters Kluwer Polska, 2010) 941; Grzegorczyk (n 4) 638; S Stachowiak, Przesłuchanie podejrzanego z udziałem obron´cy (Prokuratura i Prawo, 1997) no 12, 24; Stefan´ski (n 16) vol 2, 310; cf Hofman´ski, Sadzik, Zgryzek (n 16) vol 2, 22–23. 18

Investigation Measures

507

requested that the information be kept confidential unless the information relates to an offence for which there is an obligation of notification under criminal liability (CCP, Article 180 § 3 i 4). A witness may refuse to give evidence in the following situations: 1. if he is required to keep a professional or official secret, as to the facts relating to the substance of the secret; a PP may release them from that obligation (CCP, Article 180 § 1); the above provision applies to in-house lawyers who are not attorneys, legal advisors or tax advisors; 2. if he is related to the accused as a spouse, ascendant, descendant, sibling, related by marriage in the same line or degree, or a person in relationship of adoption and his cohabitant (CCP, Article 182 § 1); 3. if in a different pending case he is accused of complicity in an offence covered by the proceedings (CCP, Article 182 § 3); 4. if he is an entity (or its representative) who obtained material benefits from an offence committed by a perpetrator acting on its behalf or interest and the PP applied to require him to reimburse the State Treasury (CCP, Article 416 § 3). A witness may request to be released from giving testimony or answering questions if he remains in a close relationship with the accused (CCP, Article 185). A decision to release is made by the questioning body. Close relationship means a relationship different than relationship by blood or marriage, eg engagement, friendship. A witness may also refuse to answer a question if the answer could expose him or a person close to him to criminal liability for offences or fiscal offences (CCP, Article 183 § 1). In accordance with CCP, Article 171 § 5, it is prohibited to influence testimony by duress or unlawful threat or to use hypnosis or chemical or technical means affecting mental processes of the person questioned or to exploit the unconscious body reactions in relation to questioning (eg polygraph). The testimony of a witness that was obtained contrary to these prohibitions, or made eg under the influence of alcohol or drugs cannot be considered as evidence (CCP, Article 171 § 7). Provisions of the Polish CCP do not state a time of the day in which interrogations can be conducted, or the maximum length of time they may last for. However, the procedural body has to take into account that too lengthy, too frequent, or night-time interrogation of the witness might, in some cases, cause such severe fatigue that it will be justified to consider the testimony submitted in conditions excluding freedom of expression.19 The interrogation of a witness may be also conducted with the use of technical equipment making this action possible through remote transmission, eg as a video-conference or phone-conference (CCP, Article 177 § 1a). It is also possible to interrogate the witness eg at home, when he/she cannot comply with a summons by reason of illness, serious disability or any other insurmountable obstacle (CCP, Article 177 § 3). A child, who at the time of the interrogation is younger than 15 years and is a victim of an offence against sexual liberty and decency (c XXV of the CC), or an offence against family and custody (c XXVI of the CC), or is a witness in cases regarding offences committed with the use of violence or threat or offences against sexual liberty and decency (c XXV of the CC), should be questioned only once in the whole criminal process (CCP, Article 185a and 185b). This interrogation shall

19 See judgment of the Supreme Court of 26 May 1981 IV KR 100/81 OSNKW 1981 no 9 Item 52; judgment of the Supreme Court of 14 September 1981 II KR 229/81 Problemy Praworza˛dnos´ci 1984 no 4, 82.

508 Poland be conducted by the court in a session with the participation of an expert psychologist. The PP, defence counsel and attorney of the injured person shall have the right to participate in the interrogation. This interrogation is held in absence of the suspect. The interrogation of such a person can be repeated only when new essential circumstances are disclosed whose elucidation requires repeated examination or when it is demanded by the suspect who had no defence counsel at the first examination of the witness or injured party. To protect the witness, the PP can keep secret his/her place of residence (CCP, Article 191 § 3) or even the witness’s identity (so-called ‘anonymous witness’—CCP, Article 184). Pursuant to CCP, Article 316 § 3, if there is a danger that the witness cannot be heard at the hearing (eg because there is a danger of his death due to his age or serious illness), in preparatory proceedings witness can be heard by the court. For this interrogation can apply a party, PP or other authority conducting proceedings. An interrogation record (minutes) shall be drawn up of a witness’s questioning and signed by witness as well as by the examining person and recording clerk. The course of this action can also be consolidated by registering sound and/or video (CCP, Article 147 § 1). In preparatory proceedings, the suspect and his defence lawyer may take an active part in an interrogation of a witness in the following situations: 1. if the suspect or his defence lawyer have submitted a motion to carry out such an activity, in the event that this motion is accepted, it is unlawful to deny them a right to take part in the activity if they requested it in conjunction with the motion, or subsequently (CCP, Article 315 § 2); in such case they need to be notified in advance about the place and time of such activity;20 2. the suspect and his appointed defence lawyer need to be allowed to take part in the activity if it cannot be repeated during the court session (eg interrogation of the witness in conjunction with confrontation), unless there is a danger of losing or degrading evidence in the event of a delay (CCP, Article 316 § 1); in such a case it is necessary to notify the suspect and his appointed defence lawyer about the time and place of such activity, regardless the fact whether the parties demand it or not;21 the authority is relieved of this obligation if there is a danger of losing or degrading evidence in case of a delay, however parties and their representatives are to be allowed to take part in the activity, if they are present despite not being notified,22 3. the suspect and his appointed defence lawyer upon their request need to be allowed to take part in other activities of the investigation as the ones mentioned above (CCP, Article 317 § 1); permission to take part in such activities is conditional upon submitting such a request; if it is granted (which should be a rule) then the party requesting should be notified about a place and time of such activity;23 in exceptional circumstances the PP can deny a right to take part in such activity for the essential benefit of the investigation, or forbid bringing a suspect who is detained, if it might cause significant problems (CCP, Article 317 § 2). An interpreter participates in the questioning of a witness when it is necessary to question a deaf or dumb person and written communication with her/him is not satisfactory and also 20

See Grzegorczyk (n 4) 674. See Hofman´ ski, Sadzik, Zgryzek (n 16) vol 2, 110; Grajewski (n 18) vol 1, 982; Grzegorczyk (n 4) 676; Stefan´ ski (n 16) vol 2, 398. 22 See Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 2, 111; Grzegorczyk (n 4) 676; Stefan´ ski (n 16) vol 2, 391. 23 See Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 2, 113. 21

Investigation Measures

509

a person who does not speak Polish (CCP, Article 204 § 1). According to CCP, Article 87 § 2 a witness may appoint a representative (pełnomocnik) if his interests so require in the pending proceedings. However, a PP may refuse such representative to participate in preparatory proceedings after having concluded that protection of witness’s interest do not require it.

4. Arresting the Suspect and Detention for Questioning The Polish CCP provides for two basic types of arrest (zatrzymanie): 1. Pursuant to CCP, Article 244, the police shall be authorised to arrest a suspected person if there is good reason to suppose that he has committed an offence, and it is feared that such a person may go into hiding or destroy the evidence of his offence, or if his identity could not be established or there are grounds for conducting special, speedy proceedings against a suspected person; if there is good reason to suppose that a suspected person committed an offence with the use of violence against another person living in the same household, the police shall also be authorised to arrest the suspected person (when this offence is committed using a gun, knife or other dangerous object, the police are obliged to do so), when there is good reason to fear that the suspected person may commit a new offence with use of violence against this person, particularly if the suspected person has threatened to commit such an offence. 2. The so-called ‘arrest for bringing a person to a procedural organ’ (zatrzymanie i przymusowe doprowadzenie) measure has two main legal grounds: — if the suspect fails to appear without justification before the PP or other authority conducting preparatory proceedings (eg for questioning), he may be brought under duress (CCP, Article 75 § 2); in such a case the PP or mentioned authority may order his immediate arrest;24 — a PP may order that a suspected person be arrested and brought to him if 1) there is justified fear that such a person will not appear before that organ upon a summon or 2) if there is an immediate need to apply preventive measures against a suspected person (CCP, Article 247 § 1). Pursuant to CCP, Article 244 § 1, in order to arrest a suspected person, the police must have a justified supposition that he has committed an offence. Some authors argue that justified supposition is not enough, since directly applicable Article 5 ECHR requires ‘reasonable suspicion’ based on evidence as a condition for deprivation of liberty in the course of criminal proceedings.25 An arrested person may be kept in police custody for no longer than 48 hours. This rule has a constitutional background (see PC, Article 41(3)) and applies to both types of arrest. Before the expiry of this time-limit, he/she must be either released or (after presentation of charges—see section B1) placed at the disposal of the court together with the motion of the PP for application of pre-trial detention (CCP, Article 248 § 1). The court shall examine such motion no later than within further 24 hours. If no decision imposing detention is taken, a suspect must be released no later than before the expiry of the above-mentioned 24

See Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 426. See J Skorupka, ‘Zatrzymanie procesowe osoby podejrzanej’ (2007) 11 Prokuratura i Prawo 20–22; MG We˛glowski, ‘Zatrzymanie procesowe—uwagi polemiczne’ (2008) 9 Prokuratura i Prawo 36–37. 25

510 Poland 24 hours. In case of refusal to impose pre-trial detention, a suspect must be released immediately (CCP, Article 248 § 2). Pursuant to CCP, Article 244 § 2 the arrested person shall be informed immediately after apprehension about the reasons for his arrest and his rights, including the right to the assistance of the advocate. Explanations of the arrested person shall be heard and written down in the record of the arrest. The arrested person has the right to contact a lawyer by any means available, and to talk directly to him during the time of arrest. However, the person who made the arrest may reserve the right to be present during a conversation of the arrested person and a lawyer (CCP, Article 245 § 1). The lawyer may also participate in a questioning the arrested person as a suspect. The arrest is executed by the police or other competent authorities (eg Military Gendarmerie, Border Guard, the Internal Security Agency). Only arrest for bringing a person to a procedural organ requires the previous authorisation of a PP. The CCP also provides for judicial review of both types of arrest. Arrested person has the right to appeal against the arrest to a court (CCP, Article 246). In this appeal the arrested person may request an examination of the grounds and legality of his arrest, and the correctness thereof. The arrested person has no formal right to silence until a decision on presenting charges is issued and he gains the formal status of a suspect. For that reason there is no legal obligation to inform the arrested person of his right to silence. He/she may however give statements to the police which are written down in the record of arrest, but these statements do not have value as evidence in court. The record of arrest is included in the case file available to the court. Thus, it is clear that an arrested person who provides ‘an explanation’ in which a confession is made, might feel compelled to repeat this statement at the first formal interrogation. So, even though the first informal confession may not be used as evidence in court, it can affect the position of the arrested person and limit his possibilities to choose a defence strategy later on in the proceedings.26 It should be also stressed that the suspected person may not be interrogated as a witness. Even when the police or other authority make the record of this interrogation, it may not be used as evidence. Pursuant to CCP, Article 389 § 1 (argumentum a contrario), the witness testimony of a person subsequently charged with a criminal offence cannot be read out at the trial and cannot be used as evidence. When the suspected person is formally charged, the police or PP questions him/her as a suspect, who has the right to silence. Pursuant to CCP, Article 72 a defendant who does not have a sufficient understanding of Polish has a right to the assistance of an interpreter, the costs of which are borne by the State Treasury. This rule applies to the arrested person after he/she is formally charged. Until that stage, however, the arrested person has no right to an interpreter. This means that during all actions connected with the arrest, which are conducted in the presence of the arrested person (making of the record, giving explanations by the arrested person, medical examination etc), he/she has no right to an interpreter. It does not mean that the arrested person can be formally interrogated without interpreter. As stated above, the arrested person may not be interrogated as a witness and after the charges are presented to him/her, he/she is interrogated as a suspect (with the assistance of interpreter).

26

See de Vocht (n 15) 436–37.

Investigation Measures

511

5. Pre-Trial Custodial Detention Pre-trial detention (tymczasowe aresztowanie) may be applied by a court only if the evidence collected in the case indicates a high probability that a suspect has committed an offence (CCP, Article 249 § 1). Apart from this first general ground, at least one of certain further special grounds shall be established in order to apply pre-trial detention (CCP, Article 258): 1. there is good reason to fear that the accused may take flight or go into hiding, particularly if he has no permanent residence in Poland or when his identity cannot be established; or 2. there is good reason to fear that the accused might induce other persons to give false testimony or attempt to obstruct the criminal proceedings in some other manner; or 3. if the accused has been charged with a crime or with a misdemeanour carrying the statutory maximum penalty of deprivation of liberty of a minimum of eight years, or if the court of first instance sentenced him to a penalty of deprivation of liberty of no less than three years, the need to apply the preliminary detention in order to secure the proper conduct of proceedings may be justified by the severe penalty threatening the accused; or 4. in exceptional cases, when there is good reason to fear that the accused charged with a crime or an intentional misdemeanour would commit an offence against life, health or public safety, particularly if he threatened to commit such an offence. The special ground justifying detention of a suspect stipulated in CCP, Article 258 § 2 has no independent nature—it is closely related to those grounds provided in CCP, Article 258 § 1. The aim of these ground is also to secure the proper conduct of the proceedings (see CCP, Article 249 § 1). In fact, CCP, Article 258 § 2 is based on a presumption: when a suspect has been charged with a serious offence which carries a severe penalty, it is highly probable that he/she may take actions to avoid a criminal liability (eg take flight). When the conditions of CCP, Article 258 § 2 are fulfilled, the court applying pre-trial detention can justify its decision by the severe penalty threatening the suspect, and need not indicate other reasons why the suspect might obstruct the criminal proceedings. Pre-trial detention may be applied only with reference to persons charged with an offence and only then, when other preventive measures appeared to be insufficient in the circumstances of the case (CCP, Article 257 § 1). The CCP does not generally distinguish types of offences in which pre-trial detention may be applied. However, pre-trial detention shall not be applied when the facts of the case permit presumption that the court will sentence the accused to the penalty of deprivation of liberty with conditional suspension of its execution, or to a less severe penalty, or that the term of detention would exceed the expected sentence of deprivation of liberty without a conditional suspension (CCP, Article 259 § 2). Principally pre-trial detention cannot also be imposed if the offence carries the penalty of deprivation of liberty not exceeding one year, unless a suspect was caught in the act of committing an offence or directly after (CCP, Article 259 § 3). Both above-mentioned limitations in applying pre-trial detention shall not apply if a suspect has remained in hiding, persistently failed to appear when summoned, or when his identity cannot be established (CCP, Article 259 § 4). Pre-trial detention requires a previous authorisation by the court. The decision on imposing and prolonging the pre-trial detention should be written and contain reasoning (CCP,

512 Poland Article 251). Every court decision concerning pre-trial detention delivered by the court is included in the case files and should be also delivered to the suspect and his defence counsel. The district court applying pre-trial detention in the preparatory proceedings shall designate a period of this preventive measure not exceeding three months (CCP, Article 263 § 1). If in view of the special circumstances of the case the preparatory proceedings cannot be completed within the above-mentioned time-limit, detention may be prolonged for further period by the court competent to examine the case (district court or regional court) upon the motion of the PP. However, save for exceptional circumstances, the entire period of detention applied in the course of pre-trial stage of the proceedings shall not exceed 12 months (CCP, Article 263 § 2). The extension of pre-trial detention beyond the above-mentioned time-limit of 12 months is possible only in exceptional circumstances listed in CCP, Article 263 § 4, and only by the competent appeal court. The law does not impose any obligatory maximum time-limit for applying pre-trial detention in the circumstances described in CCP, Article 263 § 4, as well as any other absolute time-limits for detention of a suspect/ defendant. Prior to deciding on detention the court shall examine a suspect, unless this is not possible due to the latter being in hiding or abroad. Polish law does not provide for a requirement that a person whose pre-trial detention is being sought should be legally represented by a lawyer. Also the fact that a suspect has been detained in the course of the preparatory proceedings does not form a basis for the so-called mandatory defence (obrona obligatoryjna—cases in which a suspect must be represented by a defence counsel).27 The defence counsel appointed for a suspect should be admitted to be present during the sitting of the court if he has appeared. However, notifying the defence counsel of the date of examination is not obligatory, unless requested by a suspect provided that it does not render the action difficult (CCP, Article 249 § 3). Pursuant to CCP, Article 249 § 5 the suspect’s defence counsel shall be notified of the date of the court session regarding the extension of the preliminary detention and examining the interlocutory appeal against the application or extension of this preventive measure. A failure to appear by a defence counsel who has been properly notified of the date shall not prevent the examination of the case. Polish law provides for two different paths of judicial supervision of detention. First is the procedure initiated by the PP’s motions for prolongation of this measure. The second is proceedings initiated by a detained person through appeals to the higher court against every decision concerning pre-trial detention (the decision imposing this preventive measure and every subsequent decision prolonging it, decision changing it to a different preventive measure, eg bail). Suspect may also at any time request his release by bringing to the PP motion for his/her release (CCP, Article 254). From CCP, Article 257 and CCP, Article 253 it transpires that the court, and in the preparatory proceedings the PP also, shall supervise the detention ex officio and shall immediately release a suspect if the grounds for applying this preventive measure has ceased to exist or new circumstances arise which justify the release. The detention applied by the court may also, in the course of preparatory proceedings, be revoked or replaced by less severe preventive measure by the PP (CCP, Article 253 § 2).

27

See also de Vocht (n 15) 446.

Investigation Measures

513

6. Interception of Postal Communications (Letters) Pursuant to CCP, Article 218 § 1, the condition for interception of correspondence and delivery is their relevance for an ongoing criminal proceedings. Thus, the suspicion of an offence, enabling the initiation of preparatory proceedings, is sufficient. The doctrine points out that the above-described basis for interception of correspondence is defined in an extremely general manner, despite the fact that this is an interference in the area covered by right to privacy. It is therefore proposed that each decision taken on the basis of the indicated regulation should be always carefully examined.28 This measure may be applied for all types of offences. Provisions on interception of correspondence are applied accordingly to seizure of correspondence sent by electronic mail (CCP, Article 236a). On that basis, the PP may demand that businesses engaged in telecommunication surrender records of electronic mail messages, stored in IT systems. The seizure of correspondence is effected through a demand of the court or PP addressed to the government office, institution or enterprise engaged in postal services or transportation, which is obliged to surrender the requested correspondence or delivery (CCP, Article 218 § 1). Only the court or the PP has the right to inspect, or to order the inspection of, the correspondence or delivery (CCP, Article 218 § 1). If such order is issued by the PP, the correspondence or delivery may be inspected by the agency conducting preparatory proceedings (eg the police). The decision regarding surrender of correspondence or delivery may be appealed to the district court by persons whose rights have been violated (CCP, Article 236). If the correspondence or delivery is not surrendered voluntarily, it is possible to conduct a search, under rules presented in section B14 below. The decision containing demand for surrender of correspondence and delivery is handed to the addressees of such items. Delivery of the decision may be postponed for a specified period, necessary to promote the proper conduct of the case, but not for longer than until the valid conclusion of proceedings (CCP, Article 218 § 2). Under the operational intelligence activities, it is possible to conduct covert operational monitoring (kontrola operacyjna). It involves (1) monitoring of the contents of correspondence, (2) monitoring of the contents of deliveries and (3) usage of technical appliances enabling to obtain and preserve, in a covert manner, information and evidence, in particular the contents of telephone conversations and other information communicated by means of telecommunications networks. Operational monitoring may be conducted in order to prevent, detect, identify perpetrators, as well as to obtain and preserve the evidence for criminal offences committed intentionally, which are prosecuted ex officio, when other measures turned out to be unsuccessful or will be useless (Law on Police, Article 19(1)). Operational monitoring may be applied only with relation to serious offences listed in Law on Police, Article 19(1). An authorisation of the regional court competent due to the location of the requesting Police body is required to apply operational monitoring (Law on Police, Article 19(2)). A written request may be lodged by (1) the National Police Commander, after a written authorisation from the Attorney General has been obtained, or (2) on a written request of a Regional Police Commander, after a written authorisation from a territorially competent

28

Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 1011.

514 Poland regional prosecutor has been obtained (Law on Police, Article 19(1)). An appeal against a court decision can be submitted only by that police body which submitted the relevant request (Law on Police, Article 19(20)). Operational monitoring can be instituted for a period not exceeding three months. If the reasons for instituting operational monitoring have not ceased, it can be prolonged once, for a period of not longer than three subsequent months, by the regional court at the written request of the National Police Commander or Regional Police Commander, submitted after obtaining a written consent of the Attorney General or the territorially competent regional prosecutor (Law on Police, Article 19(8)). In justified cases, when during the application of operational monitoring new circumstances arise which are significant to prevent or detect the offence, or to identify its perpetrators and collect evidence, operational monitoring can be extended by the regional court for a prescribed time period also after the lapse of the above described time periods (Law on Police, Article 19(9)). In urgent cases, if there is a risk of the loss of information, or of obliteration or destruction of the evidence of an offence, the National Police Commander or Regional Police Commander may, after a written authorisation from the Attorney General or a territorially competent regional prosecutor, rule an operational monitoring, with a simultaneous request to a territorially competent regional court for issuing a relevant decision. If the court fails to issue permission within five days of the institution of operational monitoring, the managing organ shall discontinue the monitoring and shall effect the witnessed and recorded destruction of evidence collected in the course of the monitoring (Law on Police, Article 19(3)).

7. Interception of the Contents of Telecommunications (Content Data) Interception of the contents of telecommunications (eg telephone conversations, e-mails) may be ruled after the preparatory proceeding has been instituted, in order to detect and obtain evidence for the purpose of pending proceedings, or in order to prevent a new offence from being committed (CCP, Article 237 § 1), when the pending proceedings or justified concern regarding a new offence refer to the one of offences listed in CCP, Article 237 § 4. It is allowed with respect to the suspect, the accused and in relation to the injured party or any other person whom the accused may contact, or who may be linked to the perpetrator or the threatening offence (CCP, Article 237 § 4). Where, in the course of telephone tapping or other form of interception of the contents of telecommunications, ordered on a case regarding a specific offence, materials are obtained referring to another offence or even another person, such materials may be used as evidence if the given act falls within the above catalogue. As a rule, in such a case it is necessary for the PP—at the latest two months after interception was ended—to file a motion to the court for an authorisation of using this evidence in criminal proceedings (CCP, Article 237a).29 The law does not stipulate a clear ban on interception of contents of telecommunications with respect to persons covered by formal immunity (eg parliamentary deputies), and persons obliged to maintain official secret or professional confidentiality. The doctrine presents the position that the use of interception towards persons covered by formal immunity is possible

29

See also judgment of the Supreme Court of 3 December 2008 V KK 195/08 OSNKW 2009 no 2 Item 17.

Investigation Measures

515

only where this does not constitute prosecution of that person, ie when he/she is not suspected of committing the offence which is the subject of the proceedings, or is only the interlocutor of the person to whom the interception of contents of telecommunications applies.30 With relation to persons who due to their professions are obliged to keep certain information secret (eg doctors, journalists, attorneys), it is believed that there is no justification to introduce an absolute ban on interception of contents of telecommunications.31 The tapping of persons indicated in CCP, Article 180 § 2 is admissible on an exceptional basis, if the given facts cannot be established on the basis of other evidence. The ban on applying phone tapping is deduced from provisions of CCP, Article 178 § 1 with respect to the defence counsel.32 Pursuant to CCP, Article 238 § 1, the interception of contents of telecommunications can be applied for a period not exceeding three months, with the possibility, in particularly justified cases, of extending this period by not more than a further three months. Also, the interception should be ended immediately in the event that the reasons listed in CCP, Article 237 § 1–3 cease to apply, at the latest at the end of the period for which it had been instituted (CCP, Article 238 § 2). Upon completion of interception, the court orders the destruction of recordings if they have no relevance for the criminal proceedings. The motion for destruction of recordings can be lodged by the PP or person whom interception affects (CCP, Article 238 § 3–5). The interception of contents of telecommunications is ordered by the court on a motion of the PP (CCP, Articles 237 § 1 and 329 § 1). In emergency cases, it may be ordered by the PP, who is obliged to submit, within three days, a request to the court for ratification of his/her decision. The court issues a decision on the request within five days. If the court does not ratify the PP’s decision, the intercepted data must be destroyed (CCP, Article 237 § 2). It is assumed, under both case law33 and doctrine,34 that the PP is absolutely obliged to adhere to the abovementioned three-day deadline. Failure by the PP to submit a request for ratification of interception during that period has the same consequences as a refusal to ratify such a request—ie destruction of all records. The five-day deadline is of instructional nature. Thus, the decision made by the court on ratifying the PP’s decision after five days from the date of receipt of request by the court does not render the interception ordered by the PP under CCP, Article 237 § 2 ineffective. Data recorded during that interception may be used as valid evidence. CCP, Article 239 § 1 stipulates that communication of the decision on interception of the contents of telecommunications to the person to whom it applies may be postponed for a specified period, necessary to promote the proper conduct of the case. During preparatory proceedings the communication of this decision can be postponed for not longer than until the completion of preparatory proceedings (CCP, Article 239 § 2).35 There is no

30 K Dudka, Kontrola korespondencji i podsłuch w polskim procesie karnym (Lublin, Wydawnictwo Uniwersytetu Marii Curie-Skłodowskiej 1998) 26–27, 78. 31 Ibid 77–78; G Musialik ‘Dopuszczalnos´c´ stosowania podsłuchu telekomunikacyjnego w stosunku do osób zobowia˛zanych do zachowania tajemnicy zawodowej na gruncie Kodeksu poste˛powania karnego z 1997 roku’ (1998) 11–12 Palestra 89–91. 32 See Dudka (n 30) 78–79; Musialik (n 31) 91–94. 33 Judgment of the Supreme Court of 3 December 2008 V KK 195/08 OSNKW 2009 no 2 Item 17; decision of the Supreme Court of 25 March 2010 I KZP 2/10 OSNKW 2010 no 5 Item 42. 34 Grzegorczyk (n 4) 520; Dudka (n 30) 69; Stefan ´ ski (n 16) vol 1, 1019; W Grzeszczyk, Kodeks poste˛powania karnego: Komentarz (Warsaw, Lexis Nexis, 2008) 231; K Boratyn´ ska, in K Boratyn´ ska, A Górski, A Sakowicz, A Waz˙ ny, Kodeks poste˛powania karnego: komentarz, 4th edn (Warsaw, Beck, 2012) 526; cf Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 1061. 35 See also Stefan ´ ski (n 16) vol 1, 1026; K Ponikwia ‘Uwagi krytyczne do Art 239 k.p.k.’ (2002) 10 Prokuratura i Prawo 142.

516 Poland obligation to inform the persons whose transmissions of data (eg phone conversations) have been intercepted immediately after the end of interception.36 Therefore, it is possible to conduct interception of contents of telecommunications in a completely covert manner throughout the whole time this measure is applied. A court decision regarding interception of contents of telecommunications (not only on ordering such interception, but also on ratifying interception ordered by the PP, on extension of the interception period, or on refusal to apply interception) can be appealed to a court of higher instance by any person whom this decision affects (CCP, Article 240). The decision of the PP, ordering interception under emergency situation, may be also appealed to the court (CCP, Article 240). An appeal may be brought not only by the suspected person or the suspect against whom the preparatory proceedings are conducted, but also by all persons whom that decision affects (eg persons living in the same household with the suspect and using the tapped phone line37). Information transmitted over telecommunication networks can be intercepted also under operational monitoring conducted by the police as operational intelligence activities (see section B6).

8. Monitoring of Telecommunication Traffic Data The Polish CCP does not differentiate clearly between traffic data and content data. Provisions of c 26 CCP covering only the control and recording of telephone conversations, and especially CCP, Article 241, which extends the application of provisions on tapping telephone conversations, refer solely to the content of conversations and information transmissions other than telephone conversations. The differentiation between traffic data and content data is contained in the ordinance of the Minister of Justice of 24 June 2003, issued pursuant to CCP, Article 242.38 Pursuant to § 5 of that ordinance, entities involved in telecommunication business are obliged to collect various data tied to the controlled and recorded transmission of information. Next, that data should be added to the carrier which contains recorded transmissions of information. The above suggests clearly that under this regulation, traffic data is treated differently to content data. Meanwhile, PC, Article 49 stipulates that the secret of communication may be limited only in cases and in manner defined in the relevant act, and provisions of c 26 CCP completely leave out the issue of real-time interception of traffic data.39 In consequence, it should be deemed that interception of traffic data is inadmissible under the Polish CCP. Interception of telecommunication traffic data is admissible as part of operational monitoring conducted by the police under operational intelligence activities (see Article 19(6) of the Law on Police).

36 See Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 1, 1069; Grajewski (n 18) vol 1, 787; Waltos´ (n 5) 381; Grzegorczyk (n 4) 520. 37 See Dudka (n 30) 86. 38 See the Ordinance of the Minister of Justice of 24 June 2003 (rozporza˛dzenie Ministra Sprawiedliwos ´ci z 24.6.2003 r. w sprawie sposobu technicznego przygotowania sieci słuz˙a˛cych do przekazywania informacji, do kontroli przekazów informacji oraz sposobu dokonywania, rejestracji, przechowywania, odtwarzania i niszczenia zapisów z kontrolowanych przekazów), Journal of Laws of the Republic of Poland 2003 No 110 Item 1052. 39 See A Lach, Dowody elektroniczne w procesie karnym (Torun ´ , Dom Organizatora, 2004) 75–77.

Investigation Measures

517

9. Surveillance in Public and Private Spheres (Acoustic and Visual) According to CCP, Article 241, provisions of c 26 CCP on the tapping of telephone conversations are applied, mutatis mutandis, to the surveillance and recording with technical means of the contents of other conversations or information transmissions, ie also conversations held without the use of the telecommunication network. Tapping may therefore apply to all conversations, regardless of how and where they are held (eg at home, at the office, in the park).40 See also section B7 above. The CCP does not regulate visual surveillance. Images recorded in public places (eg by street monitoring) is treated as evidence.41 It can be used, under general rules, as evidence in criminal proceedings. There are no regulations regarding the recording of that image, or its later use in the course of proceedings. Preparatory proceedings agencies have no right to engage in visual surveillance of a specific person—both in a public place, and in the private life of that person. Pursuant to Article 15(1) of the Law on Police, the police are authorised to observe and to recoird the image of events occurring in public places, and in the case of operational intelligence activities undertaken on the basis of the law—also the sound associated with these events. The law does not introduce any further restrictions in that respect. The persons to whom these activities apply are entitled to file a complaint to the locally relevant PP against the manner in which such activities are conducted (Law on Police, Article 15(7)).

10. Monitoring of Bank Transactions Polish law does not allow the preparatory proceedings authorities to monitor bank transactions. The PP and police can obtain information that constitutes bank secret when production order is issued by the court (see section B17 below).

11. Tracking and Tracing of Objects and Persons The CCP contains no provisions or rules on tracking and tracing of objects and persons. Such actions may be carried by the police as operational intelligence activities, but there is no specific regulation of such cases.

12. Data Mining and Profiling Polish law has no general rules governing access of the PP, police or other authorities conducting preparatory proceedings to data collections. The CCP in particular contains no such rules, either in general or specifically in regard to data collections. Every law regulating specific data collections (eg vehicles and drivers records) sets out specific rules on rights to access that data collection, especially stipulating those entities which can gain such access. 40 41

115f.

Grzegorczyk (n 4) 527. See A Lach, ‘Wykorzystanie zapisów telewizji uz˙ ytkowej w procesie karnym’ (2002) 5 Prokuratura i Prawo

518 Poland It could be generally stated that the courts, PP and police have power to access to data collections without any special restrictions. The only exceptions are certain data collections containing information which is strictly protected, eg bank records (see section B17). It should be added that the authorities mentioned above as a rule have no competence to selfreliant access to data collections, but must ask the authority or institution which manages the data collection for specific, concrete data. General regulation with regard to the police is provided under Article 20(15) of the Law on Police. According to this norm, in order to prevent or detect crimes or identify persons, the police may obtain, store and process information, including personal data, from records kept by public authorities pursuant to separate provisions, in particular from the National Criminal Register and the Electronic System of Population Records. According to Article 20(16) of the Law on Police, public authorities that keep these registers may, by way of decision, consent to disclose the information stored in these registers by means of telecommunications devices for the benefit of police organisational units without the necessity to submit written requests, provided that inter alia it is justified owing to the specificity or scope of the tasks or activities carried out. The police force also has power to collect data on its own establishment as an operational intelligence activity. Pursuant to Article 20(2) of the Law on Police the police may collect, process and use for detection and information purposes information, including personal data of persons suspected of crimes prosecuted on indictment, of juvenile offenders who have committed crimes prohibited under the act as crimes prosecuted ex officio, of persons of unknown identity or persons who try to conceal their identity, and persons wanted, with or without their awareness and consent.

13. Access to Relevant Premises (‘Crime Scene’) The Polish CCP does not set clear rules regarding access to premises that are relevant for the proceedings being conducted, eg the crime scene. Only CCP, Article 207 § 1 stipulates that if such a necessity arises, a view of a place or an object is conducted. The doctrine assumes that searches of closed premises infringe the home privacy and right to privacy in the same manner—therefore, in order to obtain access to premises in order to secure evidence of crime, the same rules should be applied as to a search42 (see also section B17). On the other hand, a view of open locations is not subject to any special rules, and the issue of access to such locations is practically not regulated. The provisions of CCP, Article 209 § 1 may also have some significance. According to this norm, if there is a suspicion of death being caused by criminal means, an examination and an autopsy of a corpse is carried out (the so-called post mortem). The examination of corpse is performed at the location where it had been found. Until the arrival of the expert and the PP or the judge, the corpse may be moved only in necessary cases. The above suggests that those who are engaged in the proceedings may access the location where the corpse had been found, since the corpse is to be examined at the very location.

42

See Waltos´ (n 5) 397; Stefan´ ski (n 16) vol 1, 952.

Investigation Measures

519

14. Search and Seizure According to CCP, Article 219 § 1 a search of premises and other places (eg means of transportation, open places), as well as of a person, his/her clothes and personal objects can be conducted in order to recover objects that might serve as evidence in the case, or that are liable to sequestration in criminal proceedings. A search of a person, his/her clothes and personal objects may also be conducted in order to detect or detain, or to ensure the compulsory appearance of a suspected person—if there exist justified grounds to assume that the suspected persons or mentioned objects are located there. Search and seizure may be applied for all types of offences. Pursuant to CCP, Article 221, searches of occupied premises (eg houses, apartments) shall be conducted at night (between 9 pm and 6 am) only in an emergency. A search commenced by day, however, may be continued into the night. A night search may be conducted on premises that are at the time open to the public, or used for the storage of goods. Searches of a person and his/her clothes are to be conducted, as far as possible, by a person of the same sex as the person searched (CCP, Article 223). Searching or seizing objects shall be conducted in accordance with the aim of the action, with moderation and respect for the dignity of the persons to whom the action relates, and without unnecessary damage or inconvenience (CCP, Article 227). The provisions on searches of premises are applied accordingly to searches of devices containing IT data (eg computers) or an IT system (eg computer networks) with respect to data stored on those devices, in those systems, or on a data carrier held or used by its holder or user (eg on a DVD), including correspondence sent by electronic mail (CCP, Article 236a). Pursuant to CCP, Article 220 § 1, a search can be conducted by a PP, police or other competent authority (eg the Internal Security Agency, Military Gendarmerie, Border Guard). If a search is not conducted by the PP, authority competent to conduct a search of premises or of a person should be obtained via a written decision of PP. In urgent cases, if a PP’s decision cannot be issued, the police or another authorised agency may perform the search upon presentation of a warrant issued by the head of unit, or an official ID (CCP, Article 220 § 3). After performing the search, the agency must immediately request the PP to ratify it. The PP’s decision on search ratification must be delivered to the person whose premises have been searched within seven days from the date of the action, if that person made such a request and that request was recorded. The person should be informed of their right to make such a request. In practice, the above-described search manner is the rule, and the PP ratifies the search almost automatically. An order regarding the search of premises or seizure of objects (both an order to conduct a search and a ratification of search conducted by the police, despite there being no PP’s order) and other actions (eg the manner in which the search was conducted) may be appealed by persons whose rights had been violated (eg the person whose premises had been searched, or who owns the seized object). Under preparatory proceedings, this appeal is examined by the district court (CCP, Article 236). There is no obligation to provide notification of a planned search, neither to the suspect and his/her defence counsel, nor to the person whose premises are to be searched. However, there is no possibility for conducting a clandestine search in the absence of the persons occupying the premises. During the search—pursuant to CCP, Article 224 §§ 2 and 3—the following persons have the right to be present: the person whose premises are to be searched, the person designated by the person conducting the search, the person designated by the owner of premises being searched, if this does not obstruct the search or render it

520 Poland impossible. If the owner of premises is not present during the search, at least one adult member of the household or a neighbour should be called to attend. In the case of a search of premises it is required—under CCP, Article 224 § 1—before commencing the search, to notify the person whose premises are to be searched of the reason for the search, and to summon him/her to surrender the objects sought. This is meant to allow this person the opportunity for voluntary surrender of items being sought, and thus to avoid the search. 15. On-line Search of Computers Polish law does not provide for rules on on-line search of computers, and such a measure is at present inadmissible. 16. Freezing Only property belonging to a suspect may be a subject of freezing. This means that freezing may be applied only when charges are formally presented to a suspect (see section B1 above). Freezing of property may be applied in regard to an offence subject to a fine, forfeiture, or to imposition of the obligation to redress damage or to make a supplementary payment. Freezing of property may be also applied in regard to an offence committed against property or when an offence causes damage to property (CCP, Article 291). There are no strict time limits to apply this measure, but freezing shall be cancelled if no valid and final decision is issued imposing a fine, forfeiture, supplementary payment to the injured or for a public purpose or obligation to redress damage, or when the accused is not sentenced to pay the claims for reparation of damages, and where no suit for those claims has been filed within three months from the day on which the decision has become valid and final (CCP, Article 294 § 1). The freezing order shall be issued ex officio in the course of preparatory proceedings by the PP. Such an order shall determine the scope and the manner of the freezing and shall be delivered to the suspect. There is controversy in the professional literature as to whether delivery of a freezing order to a suspect may be postponed to the moment when execution of this measure begins.43 The freezing order may be appealed to the court (CCP, Article 293 § 2). A freezing order is executed by court executive officer (komornik sa˛dowy) or tax office. In the preparatory proceedings, persons who are not parties may lodge a complaint to the supervising prosecutor against a freezing order, or actions connected with the execution of a freezing order, which violate their rights (CCP, Article 302). According to CCP, Article 295 § 1 the police may conduct a provisional freezing of the movables of the suspected person in a case of committing an offence in regard to which a freezing of property can be applied, if there are grounds to fear that the suspected person might conceal these objects. A provisional freezing shall be cancelled if within seven days from the day on which it was effected, a freezing order has not been issued (CCP, Article 295 § 4).

43 See P Starzyn ´ ski, Zabezpieczenie maja˛tkowe w polskim procesie karnym (Warsaw, Beck, 2007) 136–38; J Skorupka ‘Wykonanie zabezpieczenia maja˛tkowego’ (2005) 2 Prokuratura i Prawo 50; Steinborn (n 18) vol 1, 912.

Investigation Measures

521

17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of Other Data Collections) There is no general rule in Polish law concerning access by the courts, PPs and the police to information gathered by the public authorities and other administrators of data collections. Every single law referring to such collections specifies which entities and under which conditions have competence to request information gathered in such collection (eg courts, PPs and police may have access to the population register). Telecommunications businesses are obliged to deliver data on traffic in their networks (CCP, Article 218). This occurs under the same rules as surrender of correspondence (see section B6). Special provisions refer only to data freezing. Telecommunication entities are obliged to secure immediately, at the request of the PP expressed in a written order, for a definite time period not exceeding 90 days, computer data stored in devices containing this data, on a data carrier or in an IT system (CCP, Article 218a § 1). The police may also acquire telecommunication data free of charge under Article 20c of the Law on Police, in order to prevent or detect offences, as part of its authority to conduct operational intelligence activities. Access to this data by the police is not subject to court control, requires no PP’s authorisation, and is clandestine as a rule. A bank may be ordered to provide bank information in the course of preparatory proceedings. This measure may be applied for all types of offences or suspicion of an offence, enabling the initiation of preparatory proceedings. In cases regarding an offence or a fiscal offence against an individual who is party to an agreement signed with the bank, with respect to information regarding that individual, and for cases regarding an offence or a fiscal offence committed with relation to actions of a legal person or an entity without legal personality, with respect to information on that legal person or organisational entity information is provided upon demand of the PP (Article 105(1) of the Banking Law of 29 August 199744). In cases regarding an offence or a fiscal offence with respect to other information, information is provided upon demand of the PP conducting the proceedings on the basis of an order issued at his/her request by the competent court (Banking Law, Article 106b(1)). Courts and PPs may also require confidential information concerning individual insurance contracts from insurance undertakings, provided this is necessary in pending proceedings (Article 19(1) of the Law on Insurance Activity of 22 May 200345). The police may acquire privileged information processed by banks and data from insurance companies, as part of their authority to conduct operational intelligence activities, when the court orders its disclosure to the Police, where it is necessary for effective prevention of offences specified in Article 19(1) of the Law on Police, or for detection thereof, or for the identification of perpetrators and collection of evidence (Law on Police, Article 20(3) and (5)).

18. Invoking the Assistance of Experts to Examine Clues etc. An expert may be appointed at any stage of preparatory proceedings by an authorised body when finding the facts critical to the outcome of the case requires special knowledge (CCP, Article 193 § 1), beyond that accessible to an adult person with a good life experience, education and general knowledge.46 44 45 46

Journal of Laws of the Republic of Poland 2002 No 72 Item 665. Journal of Laws of the Republic of Poland 2010 No 11 Item 66. Judgment of the Supreme Court of 15 April 1976 II KR 48/76 OSNKW 1976 no 10-11 Item 133.

522 Poland An expert is appointed by the authority conducting preparatory proceedings. This requires a written decision, which however cannot be challenged. Only a PP may appoint an expert psychiatrist. According to CCP, Article 195, not only may an expert who is on a court list of experts be appointed to act as an expert, but also any person who is considered to have specialised knowledge in a particular subject. It is not allowed to appoint some persons (eg relatives of a party or his/her counsel, or a person who actually witnessed a prohibited act) as an expert (see CCP, Article 196). In addition, in the event of disclosure of reasons that undermine confidence in the impartiality of the expert, his/her knowledge, or other important reasons (eg prolonged illness of the expert), another expert shall be summoned (CCP, Article 196 § 3). An expert gives opinion orally or in writing, depending on the authority’s request (CCP, Article 200 § 1). Oral opinions are made for the record (CCP, Article 143 § 1) and may also be consolidated by a sound and/or video recording (CCP, Article 147 § 1). In preparatory proceedings a written opinion is a rule and may be required by the suspect and his lawyer to enable them to acquaint themselves with the written opinion of the expert and take part in the hearing of the expert (CCP, Article 318). The authority conducting the preparatory proceedings cannot refuse the request of the suspect and his counsel.47 Special regulations concern the opinion of expert psychiatrists on the mental condition of a suspect. In case doubts arise concerning the sanity of the suspect, the PP appoints at least two expert psychiatrists (CCP, Article 202 § 1). On the psychiatrists’ request, an expert or experts from other fields are additionally summoned to participate in delivering the opinion (CCP, Article 202 § 2). An expert sexologist may be summoned to give an opinion on the mental state of the accused with respect to sexual disorders or preferences. Such experts may not be a married couple, or in other types of relationship that might evoke justified doubts concerning their self-reliance (CCP, Article 202 § 4).

19. Infiltration Infiltration can take place only under the operational intelligence activities of the Police and other duly authorised agencies. It is not regulated in the provisions of the CCP. Provisions of the Law on Police differentiate between infiltration by undercover agents (Article 20a(2)–(4) of the Law on Police) and infiltration by secret collaborators of the police (Article 22 of the Law on Police).48 Infiltration can be applied under general rules regulating the conduct of operational intelligence activities. This measure may be applied for all types of offences. While performing operational tasks, police officers may use documents making it impossible to establish their identity or the measures they apply while performing their duties (Article 20a(2) of the Law on Police). In particularly justified cases, this provision may also apply to persons who are not police officers (Article 20a(3) of the Law on Police). The agent’s activity is documented in the form of reports. These reports may not be used as evidence during criminal proceedings, as CCP, Article 174 does not allow the substitution of the contents of documents and notes for the testimonial of witnesses. On the other hand, if an agent was to 47

Grzegorczyk (n 4) 679; Hofman´ ski, Sadzik, Zgryzek (n 16) vol 2, 115. See R Netczuk, Tajny współpracownik Policji na tle prawnoporównawczym (Katowice, Wydawnictwo Uniwersytetu S´la˛skiego, 2006) 110f. 48

Prosecution Measures 523 be heard as a witness in criminal proceedings, this would give away his/her secret identity. Thus, information obtained through infiltration may be introduced in criminal proceedings in conjunction along with evidence from other operational intelligence activities (controlled delivery, controlled purchase). As a rule, there are no obstacles to the appearance in court of a secret agent as an anonymous witness.49 Pursuant to Article 20a(3a) of the Law on Police, a person does not commit an offence who prepares, or manages or assists in the preparation of documents making it impossible to establish the identity of a police officer, or of a cooperating person who is not a police officer, if they use the documents while performing operational tasks. In general, however, there are no legal grounds to overrule the punishability of a secret agent’s actions that would show all the features of an offence. The illegality of such action is excluded only if the agent acts in necessary defence or in a state of necessity.50

20. Controlled Deliveries Controlled delivery may take place only under the operational intelligence activities of the police and other duly authorised agencies. It is not regulated in the provisions of the CCP. Controlled delivery is the secret control of production, transportation, storage and trafficking of illicit objects, provided that it does not create a danger to human life or health, for the purpose of evidencing criminal offences or establishing the identity of persons participating in these offences or taking over the illicit objects (Article 19b of the Law on Police). Controlled delivery may be applied only with relation to those offences which can be the subject of operational monitoring (Article 19b(1) of the Law on Police). See section B6. Infiltration requires written authorisation of the National Police Commander or regional police commander. There is no judicial review of this decision. The application of this measure is immediately communicated to the Regional Public Prosecutor, who may order the discontinuation of such activities at any time (Article 19b(2) of the Law on Police). C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution Criminal proceedings open at the moment when one of the competent bodies (see section A3) issues a decision on the commencement of preparatory proceedings (inquiry or investigation). Any person can inform the prosecuting authorities of facts which according to him/ her justify a suspicion of a committed offence. CCP, Article 304 § 1 provides the civic duty to inform the police of the offence prosecuted ex officio, although failure to observe this obligation does not lead to any penal sanctions. Polish law provides two cases where it is mandatory to notify the prosecution bodies of an offence: (1) any person who has a reliable information on a punishable preparation, attempt or the committing of one of the 19 prohibited acts listed in CC, Article 240 § 1 (eg a coup d’etat, espionage, 49 50

Ibid 121–36. Ibid 116–17.

524 Poland murder)—non-compliance with that obligation is punishable by deprivation of liberty for up to three years, and (2) state or local government institutions which, in connection with their activities, have learned of an offence prosecuted ex officio, have an obligation to notify the PP or the Police (CCP, Article 304 § 2). The decision on initiating preparatory proceedings cannot be subject to a complaint. Meanwhile, the injured person, and the government, local government or social institution which filed the notification of offence are entitled to complain to the court against the refusal to open the proceedings (CCP, Article 306 § 1). The court examining such a complaint is not authorised to independently initiate such proceedings. If, however, the court deems the decision to be faulty, it revokes it indicating the reasons for revocation, and if necessary, also the circumstances which need to be clarified or actions that need to be conducted. These indications are binding for the PP (CCP, Article 330 § 1). In practice, this usually means the need to initiate the proceedings. The regulations provide also for the complaint against failure to act by the body authorised to initiate preparatory proceedings. Pursuant to CCP, Article 306 § 3, if the person or institution which filed the notification of offence is not notified within six weeks of the initiation or refusal to open proceedings, he or it may file a complaint to the PP supervising these proceedings or appointed to supervise the body to which the notification of offence was filed.

2. Unilateral Disposal of the Case Pursuant to CCP, Article 322 § 1, the preparatory proceedings are discontinued if they failed to disclose grounds sufficient to prepare an indictment. This refers to a situation when the evidence collected in the course of the proceedings does not confirm the suspicion that an offence has been committed, or that a given person has committed it. Also, the preparatory proceedings must be discontinued in case where one of the process obstacles listed in CCP, Article 17 § 1 is revealed—ie a circumstance that precludes prosecution (eg the establishment that the committed act is not an offence, immunity, lapse of statute of limitations, death of the suspect, res iudicata). As an exception to the principle of legality, PP may also discontinue proceedings in case of misdemeanour punishable by imprisonment for up to five years if the accused’s sentence would be manifestly impracticable because of the nature and amount of penalty imposed already for another offence (CCP, Article 11) and proceedings against a suspect who is a crown witness (see section A4). Discontinuation of proceedings occurs on the basis of the PP’s decision (CCP, Article 310 § 3) and in an inquiry under a decision of the police or another body conducting the preparatory proceedings, which is in principle subject to ratification by the PP (CCP, Article 325e § 2). The suspect and his/her defence counsel, as well as the injured person and his/per representative may file a complaint to a court (CCP, Article 306 § 1).

3. Multilateral Disposal of the Case The PP or another body authorised to conduct preparatory proceedings are not entitled to apply diversion measures, nor to reach settlements that would result in the case not being sent to the court. The PP is able to send the case which is the subject of preparatory proceedings for mediation; but even a positive result of mediation and the reaching of a settlement by the suspect and the injured person does not constitute an independent basis

Prosecution Measures 525 to conclude the preparatory proceedings without sending the case to the court. The only option the PP has is to file a motion for conditional discontinuation of proceedings to the court (wniosek o warunkowe umorzenie poste˛powania), instead of bringing the indictment. Accordingly to CC, Article 66, the court can conditionally discontinue criminal proceedings for a probation period (one to two years) if, inter alia, the guilt and social harm of the offence are not significant, circumstances of the offence raise no doubts and the statutory maximum penalty of the offence not exceeds three years of deprivation of liberty. Conditional discontinuation of proceedings on the court’s sitting before the main hearing is admissible only if the accused raises no objection (CCP, Article 341 § 2). The accused, defence lawyer, PP and injured person have the right to participate in the sitting regarding conditional discontinuance. The court’s judgment regarding conditional discontinuance may be appealed by the parties (CCP, Article 444). The final judgment has a res iudicata effect. The case is to be reopened by the court if during the probation period the perpetrator has committed an offence for which he was convicted (CC, Article 68 § 1). The court may also reopen the case if during the probation period the perpetrator flagrantly violates the legal order, especially if he commits another offence (CC, Article 68 § 2). The case can be reopened up to at least six months after the probation period (CC, Article 68 § 3). The case may be reopened on the motion of the PP or the injured person, or ex officio (CCP, Article 549). The accused, the accuser and the injured person can appeal the decision regarding reopening the case to the court of higher instance (CCP, Article 550 § 3). After the case is reopened, the proceedings should follow before the court on general rules. The institution of voluntary admission of liability (dobrowolne poddanie sie˛ odpowiedzialnos´ci), provided under the FCC, is of a similar nature to diversion measures. It can be applied to fiscal offences which are punishable by fine only, and there are no grounds to apply special penalty aggravation (FCC, Article 17 § 2). Further premises are: (1) the guilt of the perpetrator and circumstances of the offence raise no doubts, (2) the statutory receivable due has been paid in full (eg tax), if the fiscal offence caused a reduction of that receivable, (3) the perpetrator paid an amount equal to at least the lowest fine which is associated with the given prohibited act, (4) agreed to forfeiture of objects, to an extent equal at least to the mandatory scope of such forfeiture or paid their equivalent in cash and (5) paid at least the flat-rate equivalent of proceeding costs (FCC, Article 17 § 1). The voluntary admission of liability may be applied only under preparatory proceedings conducted by a financial preparatory proceedings agency and only if the perpetrator of a fiscal offence files, before the indictment is made, a motion for voluntary admission of liability (FCC, Article 142 § 1). At the time the motion is submitted by the perpetrator of a fiscal offence, conditions for voluntary admission of liability should be fulfilled. The permission is granted by the court in the form of a written judgment. It is assumed that such judgment overrules the presumption of innocence.51 However, this is not a convicting judgment, and according to FCC, Article 18 § 2, is not subject to entry into the National Criminal Record (the register of convicts). The settlement conditions are defined in a binding manner in the court judgment allowing the voluntary admission of liability. The final judgment which grants permission for voluntary admission of liability has a res iudicata effect. The case can be reopened only on general principles, the same which applies to the proceedings closed by the final convicting judgment (CCP, Article 540).

51

See Wilk (n 12) 582.

526 Poland The refusal by the financial preparatory proceedings agency to bring to court the motion for granting approval for voluntary admission of liability can be appealed to a body supervising the financial preparatory proceedings agency (FCC, Article 147). The court judgment regarding approval for voluntary admission of liability can be, in a limited scope, appealed to a court of a higher instance (FCC, Article 149).

4. Reopening of the Case Closed on Different Grounds Discontinued preparatory proceedings may be reopened at any time on the basis of the PP’s decision, provided it is not conducted against a person who was the suspect under the previous proceedings (CCP, Article 327 § 1). The law does not provide any special premises for reopening the proceedings, which means that it could be due to a different evaluation of the evidence collected on the matter, the finding of other evidence, or establishing that the decision on discontinuation was erroneous.52 Discontinued preparatory proceedings may be also reopened against a person who was the suspect under the previous proceedings, pursuant to an order issued by a PP senior to the PP who issued or ratified the decision on discontinuance, but only in the event that new, vital facts or evidence are revealed that had not been known under the previous proceedings, or if the circumstance described in CC, Article 11 § 3 occurs (CCP, Article 327 § 2).53 The Attorney General may reverse a valid decision on discontinuation of preparatory proceedings issued with relation to a person who had been examined as a suspect if he/ she establishes that such discontinuation had been groundless. This does not apply to the case in which the court, under an interlocutory appeal against the decision on discontinuation upheld such decision. After six months from the date the decision on discontinuation became final, the Attorney General may revoke or amend the decision or its justification solely in favour of the suspect (CCP, Article 328). In all above cases in which the PP takes decision on reopening the proceedings ex officio, a non-binding request could also be submitted by the injured person. Refusal to reopen the proceedings is not subject to appeal. Similarly, appeal cannot be lodged against decisions to reopen preparatory proceedings, as well as against the Attorney General’s decision on revoking a valid discontinuation decision. However, the decision to reopen proceedings pursuant to CCP, Article 327 § 2 is indirectly subject to court control. Under CCP, Article 327 § 4, after bringing the indictment, the court shall discontinue the proceedings if it finds that the preparatory proceedings have been reopened on inadequate grounds.

5. Committing to Trial and Presenting the Case in Court After the completion of proceedings to take evidence under the preparatory proceedings, the suspect is given the right to final examination of the materials of the proceedings (if the suspect requested this) and the investigation or inquiry is closed (CCP, Article 321). Next,

52 53

See also Weigend, Sakowicz (n 2) 39–40. Ibid 40.

Prosecution Measures 527 the indictment is prepared (CCP, Article 332). This occurs at the time when the charge is substantiated to such a degree that there is a subjective belief that the court would issue a convicting judgment.54 The decision on bringing the indictment to court, on a case regarding an offence prosecuted ex officio, is made by a body competent to bring such an indictment (the oskarz˙yciel publiczny—‘public accuser’). For cases regarding offences prosecuted ex officio, the injured party is also entitled, on an exception basis, to bring the indictment to court. This could occur if the PP refuses to initiate preparatory proceedings or discontinues it, and the court, after a complaint of the injured party, revokes that decision. Then, in the case of another refusal to initiate preparatory proceedings or its discontinuance, the injured party is granted the right to independently bring the indictment to court, within one month from the date he/she received the notice of the relevant decision of the PP (CCP, Articles 55 § 1 and 330). In such case, the injured party acts in the court as subsidiary prosecutor (oskarz˙ yciel posiłkowy subsydiarny). Court proceedings are initiated at the moment the authorised public accuser (or subsidiary prosecutor) brings the indictment to court. According to the accusatorial procedure principle, the indictment determines the scope in which the matter shall be examined in the court proceedings. A pre-trial chamber is not known in Polish criminal process. After the indictment is brought to court, it is subject to control of the formal requirements of this document done by the president of the court or president of the chamber (CCP, Article 337) and to control if there are no process obstacles listed in CCP, Article 17 § 1 or it is evident that the charges described in indictment are meritless—done by the court (CCP, Article 339 § 3). The public accuser authorised to appear before every type of court is the PP (CCP, Article 45 § 1), and in proceedings before military courts—the military public prosecutor (CCP, Article 657 § 2). The indictment can be also brought to the court by other authorities (eg the Border Guard, agencies of the Trade Inspectorate, the Customs Office, Tax Office and fiscal control inspectors). This competence, however, is always closely linked to the jurisdiction of these bodies, and limited to specified matters. The police have no authority to appear before the court as a public accuser in cases regarding offences. The police may only prepare the indictment in the course of inquiry, which has to be ratified and brought to court by the PP (CCP, Article 331 § 1). From the provision of CCP, Article 45 § 1 stems the general rule that if the PP acts as the public accuser in the given case, no other authority who has the competence to act as a public accuser may appear on the case. This means that the PP may accede to an ongoing proceedings on a case, where the indictment was filed by another authority (Article 32 (1) of the Law on the Prosecutor’s Office) and eject that other authority from the proceedings. At the time of the PP’s accession, that other authority loses the right to act as the public accuser in the given case.55 There is only one exception provided for in the fiscal penal proceedings, in which when the indictment was brought by the PP, the financial preparatory proceedings agency or its representative may act as the public accuser, alongside the PP (FCC, Article 157 § 2).

54 55

See Waltos´ (n 5) 497–98; Grajewski (n 4) 79. See Grajewski (n 5) 258–59.

528 Poland D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence The Polish criminal procedural law provides for several types of prohibitions concerning evidence. Some evidence may not be presented because it refers to circumstances that may not be subject to proof at all.56 Other prohibitions concerning evidence aim at protecting socially important interests (eg professional confidentiality). Also, the prohibition may refer to evidence that is in general admissible but was acquired in a prohibited manner, eg phone tapping carried out without the authorisation of the court. Furthermore, it is prohibited to present evidence in a certain manner, eg to influence the statement of the examined person through coercion or unlawful threat.57 There is however no prohibition regarding evidence that may fall under the category of the fruit of the poisonous tree. The Polish criminal procedural law does not follow this theory.58 The prohibition against submitting as evidence applies only to proofs that were directly acquired in an illegal or improper manner.59 Therefore, it is allowed to submit proofs acquired with the use of the proofs obtained with the violation of the rules of evidentiary procedure, mentioned above.60 This position is a consequence of the fact that the Polish criminal procedural law is based on the principle of truth (CCP, Article 2 § 2). This principle implies that all proofs that may contribute to establishing the truth about the criminal act in question should be collected and assessed. This position also results from the principle of free assessment of the evidence (CCP, Article 7).61According to this principle, authorities responsible for the proceedings make a decision on the basis of their own conviction, which should be founded upon all the proofs and appraised at their own discretion, with due consideration to the principles of sound reasoning and personal experience.62

2. Admissibility of Written Reports Polish criminal procedural law does not provide for a closed list of possible proofs. Therefore, anything—including written documents, which may contribute to finding the truth, may constitute evidence in the criminal proceedings. The documents are usually collected and admitted as evidence within the pre-trial stage of the proceedings. However, during the trial, which, pursuant to CCP, Article 365, must be conducted orally, these documents must be read aloud by the court. When the problem of investigation and prosecution of crimes affecting the financial interests of the EU is analysed, the issue of admissibility of OLAF reports arises. It seems 56 Eg the deliberation and voting on the court’s decision, which is conducted in closed session. See Waltos ´ (n 5) 363. See judgment of the Appellate Court in Cracow of 29 March 2006 II AKa 45/06 Krakowskie Zeszyty Sa˛dowe 2006 no 4 Item 36; judgment of the Appellate Court in Cracow of 14 August 2003 II AKa 179/03 Krakowskie Zeszyty Sa˛dowe 2003 no 9 Item 23. 57 Waltos ´ (n 5) 606. 58 Ibid 58, 368. 59 Judgment of the Supreme Court of 18 November 1978 VI KRN 326/78 OSNPG 1979 no 4 Item 67. 60 Decision of the Supreme Court of 28 February 2002 IV KKN 13/02 LEX no 564837. 61 Opinion expressed by the Appellate Court in Katowice in a judgment of 27 May 2004 II AKa 160/04 OSN— Prokuratura i Prawo 2005 no 7-8 Item 35. 62 R Kmiecik, E Skre˛towicz, Proces karny: Cze˛´ s´c ogólna (Kraków, 2002) 97f.

Evidence 529 that OLAF reports may constitute proof and be read aloud in court, as it should be admitted that these reports are official documents obtained in the course of legal proceedings,63 as required by the Polish CCP. The conditions for the admissibility of these reports are that they must be drawn up taking into account the ‘procedural requirements laid down in the national law of the Member State concerned’, as required by Article 9 para 2 of Regulation 1073/1999,64 and that they must be a result of investigations conducted in accordance with the rules regulating OLAF’s investigating activities.65

3. Status of Evidence Obtained in Other Member States Before considering the status of evidence obtained in another Member State, it should be noted that the Polish law contains provisions on transnational gathering of evidence. In July 2005 the Polish legislator introduced into the Polish criminal procedural law new cc 62a and 62b66 into the CCP, aimed at implementing provisions of the Council framework decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.67 Provisions contained in c 62a CCP allow Polish courts or prosecutors to ask a judicial authority of another EU Member State to execute an order freezing property or evidence. The order applies to objects, correspondence, parcels, records of telephone connections or other transmission of information, or data contained in an electronic system or a carrier, including e-mails.68 When a piece of evidence is collected abroad, its status in criminal proceedings in Poland is the same as that of proofs collected within the country. Evidence collected abroad is most frequently recorded and the records are included into the file of the case during the preparatory stage of the proceedings. Then, at the trial, pursuant to CCP, Article 587, these records may be read aloud at the hearing according to general principles, applicable with regard to evidence gathered in Poland.69 However, this may be done provided that the manner of performing these actions does not conflict with the principles of the legal order in 63 Although not on the basis of a national legislative act, but pursuant to the directly applicable Regulation 1073/1999. See M Wa˛sek-Wiaderek, ‘The Possible Legal Position of OLAF with Regard to the Polish Criminal Procedure’ (2008) 3 Eucrim 159. 64 Regulation No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF), [1999] OJ L139/1. 65 M Wa˛sek-Wiaderek (n 63) 159. 66 See more in Grajewski, Paprzycki, Steinborn (n 18) vol 2, 602f. 67 [2003] OJ L196/45. 68 In practice, however, these provisions do not work. They only apply to freezing evidence, and there are no provisions in Polish law referring to transmission of freezed evidence. Therefore, the procedural authorities may have a piece of evidence frozen abroad, but in order to have it transferred to Poland, they must apply a different procedure, provided for in a different legal instrument. It is then much simpler to directly apply other instruments than the provisions of the CCP implementing the framework decision. In order to do so, the authorities apply the principle of subsidiarity of domestic law (CCP, Art 615 para 2), which stipulates that the provisions referring to international relations are not to be applied, unless an international agreement to which the Republic of Poland is a party, or an act regulating the activity of an international criminal court, stipulates otherwise. Collecting evidence abroad takes place first and foremost on the basis of the Council of Europe Convention on mutual assistance in criminal matters of 1959 (ETS No 030), supplemented by its additional protocol of 1978 (ETS No 099); some Member States also ratified the second additional protocol from 2001 (ETS No 182), as well as the Convention on mutual assistance between the Member States of 2000 ([2000] OJ C197/1; many provisions of the Convention are similar to those included in the second additional protocol of 2001 to the 1959 Convention (ETS No 182), with its additional protocol of 2001 ([2001] OJ C326/1). 69 Described in CCP, Arts 389, 391, 393.

530 Poland the Republic of Poland, eg the proof was collected with the use of prohibited methods.70 It is not required that the manner of conducting the evidence was identical with that in Poland, it is sufficient if more general rules of the foreign criminal proceedings are concurrent with the rules governing the Polish proceedings.71 CCP, Article 587 refers to records of evidence prepared upon a request from a Polish court or a prosecutor. However, in practice, most often the records subject to a request from Poland are already a part of a file of a case conducted by foreign procedural authorities, such as the prosecutor or the court. Polish courts admit such records as evidence without any reservations, provided that the general condition of applicability of such records is met, ie the manner of performing these actions does not conflict with the principles of the legal order in the Republic of Poland.72 The same rules apply in case of taking over the criminal prosecution to the evidentiary material obtained abroad, even if the actions have not been undertaken upon a request from a Polish court or prosecutor (CCP, Article 590 § 4).

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence The presumption of innocence is guaranteed by PC, Article 42 para 3 and confirmed in CCP, Article 5 § 1. The principle states that the accused must be regarded as innocent by the authorities until his guilt is established in a final and valid judgment, ie throughout the whole criminal proceedings. The principle of presumption of innocence has two main consequences.73 First, the accused is not obliged to produce any evidence of his innocence. The burden of proof (onus probandi) lies with the prosecution.74 Secondly, all the irresolvable doubts should not be resolved to the prejudice of the accused (CCP, Article 5 § 2). This is a confirmation of the rule in dubio pro reo. It is applied when all the evidence gathered during the trial, aimed at proving both the guilt and the innocence of the accused,75 do not allow the court to establish the defendant’s guilt. This rule applies only to doubts that, firstly, may not be resolved in any manner accessible to the court, and, secondly, that are expressed by the court.76 70

Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 475f. Decision of the Supreme Court of 8 February 2006 III KK 370/04 OSN—Prokuratura i Prawo 2006 no 9 Item 19; judgment of the Appellate Court in Cracow of 30 November 2004 II AKa 234/04 OSN—Prokuratura i Prawo 2005 no 9 Item 28; judgment of the Appellate Court in Katowice of 7 February 2008 II AKa 6/08 OSN—Prokuratura i Prawo 2008 no 11 Item 43. See Steinborn (n 18) vol II, 541f. 72 Decision of the Supreme Court of 18 September 2001, V KKN 126/99; decision of the Supreme Court of 28 March 2002 V KKN 122/00 OSNKW 2002 no 7-8 Item 60. See Hofman´ ski, Sadzik, Zgryzek (n 16) vol I, 476. 73 A Murzynowski, Istota i zasady procesu karnego, 3rd edn (Warsaw, Wydawnictwo Naukowe PWN, 1994) 255f. 74 Ibid 267f. 75 Judgment of the Supreme Court of 18 January 1991 I KR 120/90 Orzecznictwo Sa˛dów Polskich 1991 no 10 Item 248. 76 Judgment of the Supreme Court of 8 September 2009 WA 26/09 OSNKW—Rocznik 2009 Item 1844. It should be added that Polish practice concerning the application of the presumption of innocence was subject of some decisions of the ECtHR, referring to decisions of Polish courts concerning the application of pre-trial detention. In one case, the Polish court stated that the preliminary detention of the suspect was justified since he committed the offences with which he was charged. This decision was given before the final judgment in criminal proceedings was rendered, which means that the court expressed its opinion on the guilt of the suspect before the 71

The Rights of the Suspect/Defendant During Investigation and Prosecution

531

2. The Right of the Defence to Undertake Investigative Measures/Acts in their Own Right At the pre-trial stage, the criminal proceedings are carried out by authorities such as the prosecutor and the police (CCP, Article 298) and during the trial by the court. Regarding undertaking evidentiary measures, pursuant to CCP, Article 167, evidence is taken upon a motion of the parties, or ex officio. In practice, at the preparatory stage of the proceedings, evidence is taken ex officio, by procedural authorities (prosecutor or police) and further submitted to the court, whereas during the trial evidence is conducted upon motions of the parties, mainly the prosecution. Parties are not entitled to conduct evidence on their own—this right belongs to the court and the authorities conducting the preparatory proceedings.77 The suspect may however take part in evidentiary actions, carried out of his initiative or of the initiative of the procedural authority. He may initiate conducting proofs by filing evidentiary motions, which is an important element of his right to defence. The suspect may demand to conduct all types of evidence, at any stage of the proceedings.78 However, there is a controversy among scholars concerning the admissibility of private evidence, ie pieces of evidence ordered or collected by one of the parties.79 There is little case law, but in one case the court excluded as evidence an opinion of an expert hired by one of the parties and not by the procedural authority.80 All motions should be granted unless they may not be allowed on the basis of special provisions.81 In particular, the motion cannot be denied by reason of previous evidence having been contradictory to the fact which the moving party now intends to prove.82 The denial of evidentiary motion requires issuing an order by the court, which may not be subject to an appeal.83 The denial of evidentiary motion may constitute grounds for an appeal to a higher court, based on one of general premises of appeal set forth in CCP, Article 438.84

closure of the proceedings. The ECtHR found that, having regard to the explicit and unqualified character of the impugned statement, it amounted to a pronouncement of the applicant’s guilt before he was proved guilty according to law. Garycki v Poland App no 14348/02 (ECtHR, 6 February 2007) [71]. See more B Słupska-Uczkiewicz, ‘Zasada domniemania niewinnos´ci fundamentem rzetelnego procesu karnego’ (2007) 3–4 Palestra 123–26. 77 P Wilin ´ ski, Zasada prawa do obrony w polskim procesie karnym (Kraków, Zakamycze, 2006) 380. See also de Vocht (n 15) 465. 78 Judgment of the Supreme Court of 22 June 2004 V KK 54/04 LEX no 109522. 79 See, eg R Kmiecik, ‘Dokumenty prywatne i ich “prywatne gromadzenie” w procesie karnym’ (2004) 5 Pan´stwo i Prawo 3f; A Taracha, ‘O dowodach prywatnych w s´wietle Konstytucji—uwagi polemiczne’ (2005) 1–2 Palestra 95f. 80 Decision of the Appellate Court in Katowice of 22 November 2001 II AKa 395/01 Orzecznictwo Sa˛dów Apelacyjnych 2003 no 6 Item 65. 81 Judgment of the Supreme Court of 5 March 1979 II KR 30/79 OSNPG 1979 no 8 Item 119. 82 Judgment of the Appellate Court in Białystok of 26 February 1998 II AKa 137/97 Orzecznictwo Sa˛dów Apelacyjnych 1999 no 7-8 Item 60. 83 A Błachnio-Parzych, J Kosonoga, ‘Rzetelny proces karny w orzecznictwie Sa˛du Najwyz˙ szego’ in A Błachnio-Parzych, J Kosonoga, H Kuczyn´ ska, C Nowak, P Wilin´ ski, Rzetelny proces karny w orzecznictwie sa˛dów polskich i mie˛dzynarodowych, P. Wilin´ski (ed), (Warsaw, Wolters Kluwer Polska, 2009) 249f. 84 Pursuant to CCP, Art 438, a decision shall be subject to reversal or amendment if it is found that: (1) a violation of the provisions of substantive law has occurred, (2) a violation of the procedural provisions has occurred, if it might have affected the contents of the decision issued, (3) an error has occurred in the determination of the fact situation as a basis for rendering the decision, if this may have affected the contents of this decision, or (4) the

532 Poland 3. The Right to Legal Assistance The right to have a defence counsel is recognised by the Polish Constitution as a fundamental rule of Polish criminal procedure (Article 42 para 2), as well as by the CPP (Article 6). Also, pursuant to CCP, Article 77 the suspect (after an indictment is filed to the court, the accused) has the right to a defence counsel (but no more than three at the same time). The right to legal assistance covers all stages of the criminal proceedings, including the appeal and cassation. The accused should be advised of this right before the first interrogation, in a letter of rights that is handed to him.85 The right to legal assistance is not limited in its scope, however there are some restrictions concerning confidentiality of conversations between the lawyer and the accused who is temporarily detained (CCP, Article 73). In some cases, the participation of a defence counsel in the proceedings is compulsory. Some of these cases refer to the personal circumstances of the accused, and some to the complexity of the case. Concerning the first category, pursuant to CCP, Article 79 § 1 and 2, the accused must have a defence counsel if: (1) he is minor, (2) he is deaf, dumb, or blind, (3) there is good reason to doubt his sanity,86 (4) when the court deems it necessary because of circumstances impeding the defence (eg due to the poor health of the accused87). In all these cases, the defence is mandatory already at the preparatory stage of the proceedings. Concerning the second category of cases of mandatory defence, the accused must have a defence counsel in proceedings before a regional court as a court of first instance if he is accused of committing a crime or deprived of his liberty. In such a case, the participation of a defence counsel at the main trial is mandatory. In each of the cases of mandatory defence, the accused may have a defence counsel of his choice, unless he cannot afford it. In the latter case, the defence counsel is appointed by the court ex officio (CCP, Article 81). In any other case, the accused may have a defence lawyer of his own choice, at his own expense. If he cannot afford it, the accused may demand that defence counsel be appointed to him ex officio, if he can duly prove that he is unable to pay the defence costs without prejudice to his and his family’s necessary support and maintenance. However, the court may withdraw an appointment of a counsel ex officio if it comes to light that the circumstances leading to the appointment did not exist. If the court refuses to appoint a defence lawyer, such decision may not be subject to an appeal.88 The absence of a defence counsel in case of mandatory defence during the preparatory stage of the proceedings does not imply an automatic reversal of the judgment. It may only constitute reason for reversal of the decision on general bases.89

penalty imposed is strikingly disproportionate to the offence, or the application or failure to apply the preventive measure, or any other measure, has been unfounded. See Grajewski (n 4) 289f. 85

See de Vocht (n 15) 487–88 for a translation of a version of the letter of rights. If, in the course of proceedings, the expert psychiatrists find that there is no reason to doubt the sanity of the accused both at the time of the perpetration of the act he allegedly committed and during the proceedings, the participation of the defence counsel in further stages of the proceedings is not mandatory. The president of the court, and during the trial the court, may withdraw the appointment of the defence lawyer (CCP, Art 79 para 4). This solution is a part of a reform of the CCP adopted on 10 January 2003, aimed at making the criminal proceedings more speedy. 87 See judgment of the Supreme Court of 19 September 2007 III KK 130/07 OSN—Prokuratura i Prawo 2008 no 1 Item 15. The subject provision should be applied in situations when the accused has an impaired sight or hearing, or he cannot speak understandably due to physical disability. 88 Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 3, 455. 89 Grajewski (n 18) vol 2, 98. 86

The Rights of the Suspect/Defendant During Investigation and Prosecution

533

Pursuant to CCP, Article 82, only a person entitled to defend cases pursuant to the Act on the Bar may be engaged as defence counsel.

4. The Right to Have Another Person Informed About One’s Arrest The court is obliged to promptly notify the next of kin of the accused, that preliminary detention has been imposed (CCP, Article 261). This may be a person indicated by the accused, which means that the accused may be allowed to indicate a person who should be informed of his arrest. The term ‘next of kin’ is defined in CC, Article 115 § 11, according to which a next of kin is a spouse, an ascendant, descendant, brother or sister, relative by marriage in the same line or degree, a person being an adopted relation, as well as his spouse, and also a person actually living in co-habitation. If it is possible, the court may also inform other next of kin to the accused. Furthermore, on a motion of the accused, another person may be notified, instead of, or in addition to the person indicated above.

5. The Right to Submit Written Statements The accused is entitled to submit statements, which, in principle, are to be given orally. However, the law provides for a possibility to provide statements in a different—written— form (CCP, Article 176).90 This right does not imply an extension of the general right to give statements, it only complements it. Written statements, signed by the accused, only become an annex to the record.91 The right to submit written statements applies only at the preparatory stage of the proceedings. The accused is allowed to provide explanations in writing only upon his request or that of his defence counsel. Such demand may be given in writing, in a separate letter, or submitted orally, during the hearing, and recorded in the record. The person who conducts the hearing may, for important reasons, refuse to permit the accused to provide explanations in writing.92 The violation of the right to submit written statements may be considered a violation of the procedural provisions, provided it might have affected the contents of the decision issued (CCP, Article 438 § 2).

6. The Right to Ask for a Special Act of Investigation The suspect is entitled to submit a motion for gathering evidence on his/her behalf that he considers necessary for proving his case. The law does not provide for a closed list of evidence, all possible pieces of evidence are allowed unless they are directly prohibited by law.

90 S Stachowiak, ‘Wyjas ´ nienia oskarz˙ onego złoz˙ one w formie pisemnej w polskim procesie karnym’ in T Hanusek, Z Kegel, K Sławik (eds), Ksie˛ga pamia˛tkowa ku czci Profesora Andrzeja Szwarca (Wrocław, 2001) 345. 91 In practice, an accused may not want to provide oral statements and prefer to write them down. In such event, the record must state that he refused to give statements and be annexed with the written statements. See Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 801. 92 Such as eg the necessity to bring the suspect to the court for a hearing on pre-trial detention. See W Grzeszczyk, Kodeks poste˛powania karnego: Komentarz (Warsaw, Lexis Nexis, 2010) 188.

534 Poland 7. The Right to be Informed that his/her Statements may be Used as Evidence The Polish criminal procedural law does not provide for a right of the suspect to be informed that his statements may be used as evidence as such. However, it is clear that anything he says may be used in such a way, as his statements must be given during a hearing and his words must always be recorded, even before he is recognised as a suspect and he is just arrested as a suspected person. If the record has not been made, the act in question may not be taken into consideration by the court.

8. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement Polish criminal procedural law does not provide for a right of the suspect to require a precise wording of his statements as such. However, it may be said that this right is implied in a set of rights connected with making a record of a procedural action.93 Explanations of the accused should be recorded with the highest possible degree of accuracy. In practice, it happens that the words of the suspect are summarised by the judge in order to make them better understandable, which is allowed.94 However, it should not be allowed to make the explanations of the suspect sound eg more educated or to polish his language.95 The Polish criminal procedural law does not provide for a right of the suspect to full and accurate recording of the statement as such. However, this right is implied in a set of rights connected with making a record of a procedural action. Also, a full and accurate recording of the statement may be assured by an actual recording of the words of the suspect. If the procedural action is recorded by means of equipment recording pictures or sound, the record may be limited to writing down the most significant statements of persons taking part in this procedural action. A recording of pictures and sound as well as the sound transcript become annexes to the record.

9. The Right to Refer to Documents During Interview The right to refer to document during interview is not foreseen in the Polish criminal procedural law as such. In practice, at the pre-trial proceedings, if the suspect wants to refer to documents during the examination, he is allowed to do so.

10. The Right to Consult Relevant Legal Acts The right to consult relevant legal acts is not foreseen in Polish criminal procedural law as such, but it is not prohibited. 93

Kmiecik, Skre˛towicz (n 62) 271f. Judgment of the Appellate Court in Cracow of 14 September 1995 II AKr 232/95 OSN—Prokuratura i Prawo 1996 no 4 Item 22. 95 Steinborn (n 18) vol 1, 532. 94

The Rights of the Suspect/Defendant During Investigation and Prosecution

535

11. The Right to be Informed About Possibilities of Reconciliation with the Victim The suspect is informed of the possibility of reconciliation with the victim during the mediation proceedings before the first examination, when he is handed the letter of rights. The suspect may then request the mediation, or may give his consent to mediation initiated by the prosecutor, provided the injured person consents to this also (CCP, Article 23a).96 Mediation is quite rare at the pre-trial stage, but at the trial the court often encourages parties to mediation, as it allows conditional discontinuation of the proceedings (CC, Article 66 § 3) and avoids the evidentiary proceedings.

12. The Right to be Informed About the Place of Detention Polish criminal procedural law does not provide for the right of the accused to be informed about the place of detention as such.

13. The Right to be Informed About the Charges The right to be informed about the charges is a part of the right to defence. It constitutes one of the main elements of the effective defense, and in consequence the right to defend oneself,97 although some authors do not believe it to be an element of the right to defence.98 The right to be informed about the charges applies from the beginning of the criminal proceedings conducted against a given person. As soon as the authorities conducting the proceedings establish that a certain person may be suspected of committing an offence, they should inform this person of the charges, which would allow this person to fully benefit from the right of defence.99 Ordinarily, a person is informed about the charges when this person is presented with a written order specifying the charges (CCP, Article 313 § 1). An order on presenting charges must specify the identity of the suspect, together with a detailed description of the act imputed to him, and the legal classification thereof (see also section A6).

14. Access to the File During Pre-Trial Proceedings The right to have access to the file during pre-trial proceedings refers to full documentation of the procedure.100 The consent of the person conducting the preparatory proceedings is required for the inspection of files of the preparatory proceedings in progress, making copies and photocopies of the same by parties, defence counsel, attorneys and legal representatives, and for the issuance of certified copies.

96

Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 193–94. Wilin´ ski (n 76) 275f. 98 M Płachta, ‘Prawnomie˛dzynarodowe i konstytucyjne podstawy ochrony praw oskarz˙onego w procesie karnym’ (1999) 4 Gdan´skie Studia Prawnicze 39. 99 Wilin ´ ski (n 76) 276. 100 Ibid 373. 97

536 Poland The person conducting the proceedings may refuse to give access to the case files. The decision in this respect is arbitrary; he is obliged to give reasons thereof, but these reasons are not enumerated in the law.101 The decision takes the form of a ruling, which may be subject to appeal. The refusal may refer either to allowing access to the files or allowing the making of copies or photocopies.102 There are only two exceptions to the rule. First, the suspect has the right to access to all files before a formal conclusion of preparatory proceedings.103 Secondly, the prosecutor may not refuse to provide access to the part of the file, which constitutes basis for a motion referring to the application of pre-trial detention. Currently,104 at any moment of the pre-trial proceedings, the suspect and his defence lawyer may have free access to this part of the file which contains evidence indicated in the motion for application or prolongation of pre-trial detention as well as mentioned in the order on application or prolongation of pre-trial detention. The prosecutor may still refuse his permission to access the file in this part, but only in exceptional cases. Not all of the documents in the files may always be made accessible to the parties, an exception is made for documents which are a state secret. If the suspect or his defence lawyer were not granted access to files, they are entitled to file an interlocutory appeal from the decision.105 In any case, the refusal to grant access to files may constitute grounds for appeal from the judgment given by the court, based on general bases for appeal set forth in CCP, Article 438.

15. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) A suspect has the right to an interpreter in the event that he has no command of the Polish language, in order to make the defence effective. He is granted the assistance of an interpreter free of charge. This is an important element of the right to a fair trial.106 The term ‘does not have command’ covers two types of situations: (1) when the suspect does not understand the language at all, and (2) when the suspect has a poor command of Polish, not allowing him to express himself in a satisfactory manner.107 The right to an interpreter applies at all stages of the procedure, both during the preparatory stage and at the trial. The need to call in a translator is assessed by the authorities conducting the proceedings. The right to the assistance of an interpreter covers both the oral and written translation. 101

Steinborn (n 18) vol 1, 558. Hofman´ ski, Sadzik, Zgryzek (n 16) vol 1, 724. 103 Ibid 718–19. 104 The previous practice was contrary to the ECHR, as has been stressed by the ECtHR in several cases against Poland. The Court stressed that the violation of Art 5 § 4 of the Convention lay in the fact that the procedure which reviews the lawfulness of the detention on remand fails to ensure equality of arms and is not truly adversarial, since the applicant could not adequately challenge the prosecutor’s motions for prolongation of the detention. See the following cases: Migon´ v Poland App no 24244/94 (ECtHR, 23 October 2001), Matyjek v Poland App no 38184/03 (ECtHR, 30 May 2006), Chrus´cin´ski v Poland App no 22755/04 (ECtHR, 6 November 2007), Łaszkiewicz v Poland App no 28481/03 (ECtHR, 15 January 2008). Also see the decision of the Constitutional Tribunal of 3 June 2008 K 42/07 OTK-A 2008 no 5 Item 77. 105 Steinborn (n 18) vol 1, 573. 106 Judgment of the Supreme Court of 22 March 2007 III KKN 143/01. See Błachnio-Parzych, Kosonoga (n 82) 268. 107 Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 1, 405f. See also judgment of the Supreme Court of 22 April 1970 III KR 45/70 OSNKW 1970 no 11 Item 150. 102

The Rights of the Suspect/Defendant During Investigation and Prosecution

537

The suspect must be delivered the most important documents with a translation.108 The costs of interpretation are in principle born by the State. The translators called in to provide translation during the criminal proceedings are sworn translators, ie translators whose competence with regard to translation has been officially recognised by the state.109 An interpreter may be disqualified from participation in a case if there is a suspicion concerning his lack of impartiality. If the right to an interpreter is violated, this may constitute a reason for appeal, based on one of the general bases for appeal set forth in CCP, Article 438. The suspect has the right to a defence lawyer in general; however, mandatory defence refers to several specific circumstances, described above (see section E3). If for some reason the suspect does not want to use the service of the appointed defence counsel, pursuant to CCP, Article 81 § 2, he—as well as the defence counsel himself—may submit a justifiable motion to the court asking the president of the court having jurisdiction over the case to appoint a defence counsel in lieu of the acting defence counsel. The justification may refer to technical difficulties, as well as differences as to the defence between the suspect and the lawyer.110 16. The Right to Silence During the Pre-Trial Procedure Polish law provides for a suspect’s right of silence, which applies from the very beginning of the proceedings, at all stages of these proceedings. Pursuant to CCP, Article 175 § 1, the accused is entitled to make statements; he may nevertheless, without giving reasons for so doing, refuse to answer particular questions, or refuse to give explanations. He should be informed of his right to silence prior to first examination. The suspect may avail himself of this right at any moment of the proceedings or— alternatively—may decide to speak at any moment, even if previously he remained silent.111 The suspect may decide to refuse to give any explanations, he may decide to answer some questions or all of the questions. He may even lie in his defence.112 This however does not mean that he has the right to lie—he is only exempt from responsibility for lying113 on the basis of his right to silence. The accused may not suffer any consequences for taking advantage of his right to silence.114 In practice the fact that the accused does not confess having committed the offence

108

de Vocht (n 15) 469. Act on the Profession of the Sworn Translator of 25 November 2004 Journal of Laws of the Republic of Poland No 273 Item 2702. 110 Hofman ´ ski, Sadzik, Zgryzek (n 16) 457. 111 Judgment of the Appellate Court in Lublin of 9 June 1998 II AKa 58/98 OSN—Prokuratura i Prawo 1999 no 5 Item 22. 112 Wilin ´ ski (n 76) 359f. 113 Judgment of the Appellate Court in Cracow of 22 September 1994 II AKr 160/94 Krakowskie Zeszyty Sa˛dowe 1994 no 10 item 17. 114 The exercise of the right to silence and the lack of confession may not be considered as a proof of his guilt (Judgment of the Appellate Court in Katowice of 26 March 2009 II AKa 50/09 OSN—Prokuratura i Prawo 2009 no 11-12 Item 36), or as an aggravating circumstance (Judgment of the Supreme Court of 4 November 1977 V KR 176/77 OSNKW 1978 no 1 Item 7), nor justify application of a more severe penalty (Judgment of the Supreme Court of 5 June 1981 II KR 10/81 OSNKW 1981 no 7-8 Item 38). 109

538 Poland does not improve his position during the trial,115 as the cooperation with the authorities may contribute to the mitigation of the penalty.116 Pursuant to CCP, Article 74 § 1, the suspect is under no obligation to prove his innocence, or to submit evidence to his own jeopardy.117 This is a confirmation of the right not to accuse oneself, also called freedom from selfincrimination (nemo se ipe accusare tenetur).118 Therefore, the suspect may refuse to furnish any information or documents that prove his guilt. He may remain totally inactive.119 The right of the accused to remain passive during the proceedings knows some exceptions. Namely, pursuant to CCP, Article 74 § 2, the suspect is under an obligation to submit to: (1) an external examination of his body and other examinations not involving any invasion of bodily integrity; (2) psychological and psychiatric examinations, and examinations involving certain tests to be conducted upon his body (in particular to submit blood, hair and excretory samples); (3) the taking by a police officer of a swab of buccal mucosa.

17. Rights of Legal Persons in Criminal Proceedings In the Polish legal system, the liability of legal persons for criminal acts is provided for in the Act on the liability of group entities for acts prohibited under a penalty, of 28 October 2002.120 According to this Act, a group entity is a legal person and an organisational entity not having a legal personality but having a legal capacity (ie civil partnership), a company with the participation of the State Treasury or an entity of the territorial self-government, a capital company in organisation, an entity in liquidation, an entrepreneur which is not a natural person, as well as a foreign organisational entity, however with the exclusion of the State Treasury and entities of the territorial self-government (Article 2 of the cited Act). Such entity may be held liable for a prohibited act, which is a behavior of a individual related to the group entity, if such behavior was or might have been beneficiary to the group entity, even if the benefit was of an immaterial character. In the Polish system, the liability of legal persons is not autonomous. There is a two-step model of the liability of legal persons. First, an individual who committed an offence to the benefit of the legal person must be convicted on the basis of a final and valid judgment, and only then the proceedings against a legal person may be initiated. The liability of a legal person depends upon the establishment of the responsibility of an individual. If the responsibility of the individual may not be established for some reason (eg insufficient evidence) or if the individual may not be apprehended, the liability of the legal person may not be imposed.

115 Judgment of the Appellate Court in Cracow of 19 September 2002 II AKa 191/02 Krakowskie Zeszyty Sa˛dowe 2002 no 11 Item 12. 116 Kmiecik, Skre˛towicz (n 62) 95. 117 Hofman ´ ski, Sadzik, Zgryzek (n 16) vol 1, 416f. 118 Judgment of the Supreme Court of 20 September 2007 I KZP 26/07 OSNKW 2007 no 10 Item 71; see Błachnio-Parzych, Kosonoga (n 82) 267. See also Grajewski (n 18) vol 1, 296. 119 A suspect is not obliged to actively prove his innocence, nor is he obliged to passively take part in the proceedings, which means that he is not obliged to submit to evidentiary actions. See Hofman´ ski, Sadzik, Zgryzek, (n 16) vol 1, 417f. For instance, a suspect is not obliged to provide a voice sample, as this requires his active participation in the evidentiary action. 120 Unified text: Journal of Laws of the Republic of Poland 2002 No 197 Item 1661 as amended.

The Rights of the Suspect/Defendant During Investigation and Prosecution

539

In any case, a legal person may enjoy certain rights in the proceedings regarding its liability. A difference must be made, though, as to whether the proceedings are conducted against an individual or already against a legal person. Concerning the proceedings carried out against an individual who allegedly committed an offence to the benefit of a legal person, such legal person may appoint a representative to take part in these proceedings. However, pursuant to Article 21 of the analysed Act, this right applies only at the trial. A legal person does not have a possibility to be represented during the pre-trial proceedings. Its only right within these proceedings is to be informed thereof and of the rights that apply at the stage of the trail, provided of course that the identity of this legal person has been established. At the trial, pursuant to Article 21a of the analysed Act, a legal person may enjoy some of the rights of the parties. The representative of a legal person may be heard as a witness and is entitled to refuse to testify. Within the proceedings this representative has the right to an interpreter, to have an attorney, and is obliged to appear whenever summoned. Concerning the proceedings conducted against the legal person itself, after a valid judgment against an individual has been rendered, the legal person is represented by a member of an organ entitled to represent it. The proceedings are carried out on the basis of the provisions of the CCP, with some differences provided for in the Act itself. There are no preparatory proceedings, only the trail.121 The burden of proof lies on the entity submitting the piece of evidence (Article 23 of the Act). A legal person may have a defence lawyer. A person representing the legal person within the proceedings has the right to make statements but also the right to silence—he may refuse to answer certain questions or even to refuse to give any explanations at all. The legal person may also submit evidentiary motions, as well as file an appeal against the decision of the first-instance court, but not against the cassation appeal.

121

See B Nita, Poste˛powanie karne przeciwko podmiotom zbiorowym (Sopot, Arche, 2008) 385f.

15 Portugal PEDRO CAEIRO, MIGUEL JOÃO COSTA

Introduction

A

PART FROM CONSTITUTIONAL law, which regulates the very organisation of the state as a political entity, no branch of the legal system is more sensitive to the concrete political features of a given state than criminal procedure law: as Exner has so aptly put it, ‘anderer Staat—anderer Strafprozeβ’.1 This helps to explain why Portuguese criminal procedure has changed so much in the last four decades. The old CCP (Código de Processo Penal) entered into force in 1929, not long after the coup d’état of 28 May 1926 that had put an end to the First Republic and led to the socalled National Dictatorship (Ditadura Nacional) later New State (Estado Novo). The code blended previous projects, which had been drafted before the coup, and the final version was probably influenced by Professor Beleza dos Santos, chair of the committee charged with its review, whose liberal ideas may have prevented solutions that would have been even less respectful of the rule of law and fundamental rights.2 Nevertheless, the authoritarian political environment from which the CCP 1929 emerged was clear, for instance, in the inquisitorial nature of the procedure (until 1945, the same judge concentrated the functions of investigating the crime and trying the case), and in the inadequate protection of fundamental rights. Decree-Law (Decreto-Lei) 35.007 of 13 October 1945 entrusted the Office of Public Prosecutor (Ministério Público-PP)—which was, at the time, directly subordinated to the (undemocratic) government—with the direction of the investigation, and reserved to an independent authority (judges) few of the decisions that directly affected individual freedoms during that procedural stage.3 Finally, special rules applicable to political crimes4 blatantly violated the basic individual rights and freedoms granted by most post-war democratic European states.5

1

F Exner, ‘Richter, Staatsanwalt und Beschuldigter im Strafprozeβ des neuen Staates’ [1935] 54 ZStW 4. See J de Figueiredo Dias, ‘Para uma reforma global do processo penal português’ in Para uma Nova Justiça Penal (Coimbra, Almedina, 1983) 192. 3 See J de Figueiredo Dias, Direito Processual Penal, vol 1 (Coimbra, Coimbra Editora, 1974) 84ff. 4 Eg, the attribution of the competence to investigate those offences exclusively to the political police (Polícia Internacional e de Defesa do Estado—PIDE), who made frequent use of torture and other means of coercion; the possibility of detaining a suspect in custody for up to 180 days, with no intervention whatsoever of a judge; the impossibility of being assisted by a lawyer during pre-trial interrogation; the prohibition of communication with the defence lawyer in the investigation stage; the conferral of competence to try those crimes to special courts; etc. 5 Those violations were denounced by F Salgado Zenha, Notas sobre a Instrução Criminal (Braga, Universidade do Minho, 1968). Thousands of copies of the book were seized, just after the publication, by the political police: www.fmsoares.pt/aeb/crono/id?id=036803. 2

Portugal 541 After Portugal’s 1974 revolution, the enactment of a democratic Constitution (Constituição da República Portuguesa) and the accession to the ECHR in 1976 demanded new penal laws, fully compliant with respect for fundamental rights. In 1982, a new CC was enacted, drawing heavily on a project drafted by Professor Eduardo Correia in 1963–65, which embodied a moderately liberal and reformist conception of criminal law and crime control that prevented it from being approved under the authoritarian regime. Some years later, the Ministry of Justice entrusted the drafting of the project of a new CCP to a Commission chaired by Professor Figueiredo Dias, who followed closely the guidelines that had been anticipated in his handbook Direito Processual Penal, published a few months before the revolution.6 The new Code7 came into force in 1987 and the main features of the model adopted are:8 (1) an accusatorial system that ensures equality of arms between prosecution and defence; however, it is not a procedure of ‘parties’: in the first place, the prosecution must abide by a principle of objectivity, investigating à charge et à décharge, and, if that is the case, pleading for the acquittal of the defendant, or appealing on his behalf; in the second place, the court has the power to take the measures that are deemed necessary to the discovery of the truth, irrespective of the contributions of the prosecution and the defence; (2) a full-fledged right of defence; (3) the conferral upon the judge of the power to order (or, at least, ratify) the measures that interfere more seriously with fundamental rights. While the drafters of the CCP 1987 were (understandably) concerned with the protection of fundamental rights, the trend in other European countries was already the strengthening of state power with a view to enabling the authorities to prevent and punish terrorism and organised crime. That trend reached the Portuguese legal system during the 1990s and later, with the introduction of some special rules regarding certain types of offences. Moreover, the average duration of the procedure seemed unbearably long, which was quickly attributed to the ‘excess of guarantees’ provided for by the law. Both factors led to the creation of more expeditious ‘special forms’ of the procedure9 and to the restriction of some procedural rights of the suspect and the defendant (arguido).10 It is well known that the basic purpose of criminal procedure law is to balance individual freedoms and the community interest in having offenders brought to justice. In Portugal as elsewhere, the growing awareness and practical relevance of fundamental rights, combined with the public perception that the very survival of society depends directly on the prevention and punishment of some insidious forms of criminality, made that tension particularly complex and hard to handle. Thus, the real challenge for democratic societies in this realm is to design a penal procedure that provides their law enforcement agencies with tools that allow them to effectively tackle crime, without restricting fundamental rights to an impermissible degree, where the rule of law they are meant to protect is no more.

6

Above n 3. The CCP (Decree-Law no 78/87 of 17 February 1987) and all the other Portuguese legal instruments mentioned in this article can be found in www.pgdlisboa.pt/pgdl/home.php. 8 See also M João Antunes, P Caeiro, ‘Portugal’, International Encyclopedia of Law (Kluwer Law International, Suppl 6 May 1995), p 83 f. (nos 202 f.). 9 See further below sections A.2(a) and A.2(b). 10 Notably, the reintroduction, with a modification of the Constitution in 1997, further developed by Law no 59/98 of 25 August 1998, of the possibility of trying the defendant in absentia, which had been forbidden by the democratic Constitution in 1976 and, accordingly, by the original version of the CCP (1987): see current Arts 32(6) Constitution and 332ff CCP (further modified by Decree-Law no 320-C/2000 of 15 December 2000). 7

542 Portugal A. GENERAL ASPECTS OF THE PROCEDURE

1. Sources of Criminal Procedural Law (a) Statutory Law The main source of criminal procedural law is the CCP. Other formal sources include the Constitution,11 international law (general and conventional) binding on the Portuguese State12 and a profuse set of special procedural laws, the most relevant of which will be mentioned. The foundations of the principle of legality (lex scripta) of procedural law lie on the enhanced predictability of state action in this realm and the consequent guarantee against potential arbitrariness by the authorities.13 (b) Case Law Under the current methodological approach in legal theory, and contrary to what legal positivism might propound, the decisions of the courts always play a ‘co-constitutive’ role in the conformation of the applicable rules. However, in continental systems such as that in Portugal, they lack the status of formal source of law. Though case law is not formally binding on the courts,14 the decisions of higher courts exert a significant influence over the lower courts. Furthermore, there is one instance where case law bears a special strength: the decisions rendered by the Supreme Court of Justice (Supremo Tribunal de Justiça—STJ) when ruling on extraordinary appeals for the settlement of conflicting jurisprudence (acórdãos de fixação de jurisprudência).15

11 According to Art 18(1) Constitution, the constitutional norms relating to the protection of individual rights and liberties (some of which refer explicitly to the criminal procedure) are directly applicable and binding on public and private entities. Thus, as the Constitution enjoys a supra-legal status, state authorities should not apply procedural norms that are deemed to impinge upon those constitutional rights. 12 On the strength of Art 8 Constitution. Especially relevant, regarding criminal procedural law, are the Universal Declaration of Human Rights, the ECHR and the International Covenant on Civil and Political Rights (ICCPR). 13 See F Costa Pinto, Direito Processual Penal—Curso Semestral (Lisbon, AAFDL, 1998) 114f. The principle of legality (lex scripta, parlamentaria) of the procedure is based on Art 165 Constitution, which reserves to Parliament the competence to legislate on criminal law and criminal procedure (although Parliament may approve laws that authorise the Government to legislate on a specific issue). 14 When the Constitutional Court declares that a given norm is unconstitutional, the decision is binding upon the court before which the issue has been raised, and which therefore cannot apply such norm in the procedure at stake. Moreover, the decisions of the Constitutional Court have a general reach (and are binding for the other courts) when the same norm is declared unconstitutional in three different cases, as well as when judgment is passed in the exercise of the Court’s power of abstract control of the norms’ constitutional validity (sc, irrespective of a concrete case, eg, at the request of the President). For an overview of some of the most relevant case law rendered by the Constitutional Court in the field of criminal procedure law since the passing of the CCP in 1987, see M João Antunes, ‘Direito Processual Penal—Direito Constitucional Aplicado’ in M Ferreira Monte (ed), Que Futuro Para o Direito Processual Penal?: Simpósio em Homenagem a Jorge de Figueiredo Dias, por ocasião do 20 anos do Código de Processo Penal Português (Coimbra, Coimbra Editora, 2009) 745ff. 15 Should there be two opposite decisions proffered by the appeal courts, by the appeal courts and the STJ, or by the STJ itself, in different cases, concerning the same ‘legal issue’ (questão de direito), the STJ can be called upon to solve the contradiction and settle jurisprudence on that matter by adopting one of the conflicting approaches (CCP, Arts 437ff). From then on, there is a sort of presumption in favour of the adopted stance, meaning that the lower courts that wish to depart from such stance have a legal duty to justify why they do so; moreover, the Public Prosecutor Office is legally bound to appeal to the STJ from any rulings that do not follow settled jurisprudence (CCP, Arts 445ff).

General Aspects of the Procedure 543 The decisions of the ECtHR and of the ECJ should also be taken into account by Portuguese courts in the interpretation of the law. (c) Legal Literature Legal literature does not constitute a formal source of law either, but exerts a significant influence as well, ‘particularly in periods of deep legislative reforms’.16 2. Stages of the Criminal Procedure The Portuguese procedural system contains two pre-trial phases: inquiry (inquérito) and ‘bringing to judgment’ (instrução). (a) Inquiry Investigation and prosecution integrate a single phase, called inquérito, which can be translated into English as ‘inquiry’:17 investigation ends with a decision on whether or not the person ought to be prosecuted (charged/indicted), which marks the end of the inquiry. The inquiry comprises the ensemble of measures that aim at investigating the existence of a crime, identifying the perpetrators, assessing their culpability, and finding and gathering evidence, in order to decide whether or not to prosecute. The measures to be adopted during its course are only those which the PP considers necessary or convenient; however, since the PP is a body of administration of justice, it must obey a principle of objectivity in order to find the truth and, in this sense, investigation is not really unilateral but rather ‘omni-comprehensive’.18 This phase is only mandatory in common proceedings. In summary proceedings (processo sumário)19 there is no inquiry. In abbreviated proceedings (processo abreviado)20 the inquiry is optional, as the perception of the notice of a crime can be followed immediately by prosecution. And the same applies, through interpretation, to the processo sumaríssimo.21 Once the investigative measures and the gathering of evidence are complete, the inquiry is ready to be concluded. In the final decision of the inquiry, the PP can file the inquiry or prosecute the perpetrator. 16

G Marques da Silva, Curso de Processo Penal, 5th edn, vol 1 (Lisbon, Verbo, 2008) 103. Regulated in CCP, Arts 262ff. 18 G Marques da Silva, Curso de Processo Penal, 2nd edn, vol 3 (Lisbon, Verbo, 2000) 91. 19 Those proceedings are applicable to persons arrested in flagrante delicto for the commission of crimes punishable with imprisonment for less than five years (or punishable with imprisonment for five or more years, but where the PP considers that the concrete offence(s) at hand shall not be punished with imprisonment for more than five years), even in the case of concurring offences (CCP, Arts 381ff). 20 Those proceedings are applicable to crimes punishable by a fine or imprisonment for less than five years (or punishable with imprisonment for five or more years, but where the PP considers that the concrete offence(s) at hand shall not be punished with imprisonment for more than five years), even in the case of concurrence of crimes, when it is clear that there is ‘sufficient evidence’ (see below section A.4(b)) of the crime and of the identity of the perpetrator (CCP, Arts 391Aff). 21 As decided by the Court of Appeal of Oporto, 19 May 2004 0411893 (Acórdão do Tribunal da Relação do Porto, processo 0411893 in www.dgsi.pt). Alongside the summary and the abbreviated proceedings, the CCP provides for yet another special kind of proceedings called processo sumaríssimo (CCP, Arts 392ff), which is based upon a consensus between several subjects of the procedure and is applicable to crimes punishable with imprisonment for less than five years or fine, and where the PP, after having heard the offender, considers that the offence should not be punished with a sanction involving deprivation of liberty. 17

544 Portugal Filing the inquiry means that the procedure shall cease. This decision does not examine the merits of the proceedings, although it can (also) rely on certain substantive grounds.22 The PP shall file the inquiry: (i) as soon as it has gathered evidence enough that the alleged crime was not committed at all, that the arguido23 did not commit it or that the procedure is inadmissible;24 or (ii) if, during its course, it did not obtain sufficient evidence that the crime occurred or of the identity of its perpetrator; (iii) the PP shall also file the inquiry if the conditions for the diversionary measure of ‘filing of the inquiry in case of possible exemption from the penalty’25 are met. The indictment is ‘a solemn and public statement that there is such a heavy suspicion over someone having committed an offence that a judicial decision on the case is deemed necessary by the community’.26 It defines the object of the process and, therefore, constitutes an essential requirement for all the subsequent judicial activity of investigation, cognition and decision. In this respect, it is important to draw a distinction between ‘public’ and ‘private’ crimes: the PP is competent for prosecuting public crimes and must do so whenever sufficient evidence has been gathered during the inquiry; in the case of proceedings for ‘private crimes’, it is up to the private prosecutor to prosecute.27 Finally, the PP can decide neither to file the inquiry nor to prosecute the perpetrator, but rather to apply the diversionary measure of provisional suspension of the procedure, following which the case may ultimately be filed (see further below, section B.2). (b) ‘Bringing Someone to Judgment’ The Portuguese procedural system contains a second pre-trial phase that, in a sense, corresponds to ‘bringing someone to judgment’, called instrução,28 which the CCP defines as the assessment, by a judge, of the decision taken at the end of the inquiry to prosecute (by the PP or the private prosecutor) or not to prosecute (by the PP), in order to submit the case to trial or not. The scope of that assessment is to ascertain whether or not there is sufficient evidence that the requirements on which the application of a sanction (a penalty or a security measure29) depends are fulfilled. This phase is directed by an investigative judge (juiz de instrução)—who cannot participate later in the trial, for the sake of impartiality— assisted by the criminal police. This phase takes place in common proceedings only (not in special ones30) and has a facultative nature—it will only take place if requested by one of following subjects: (1) the

22

Marques da Silva (n 17) 112. In broad terms, the arguido is the suspect who is formally being investigated for the perpetration of a crime; in detail, see below section A.7. 24 See further below section C.1(b). 25 See below section C.2. 26 Figueiredo Dias (n 3) 144. 27 This distinction will be assessed in more detail below, section A.3(b). 28 Governed by CCP, Arts 286ff. It should be noted that Portuguese law does not really know a procedural phase with the name ‘bringing someone to judgment’, but, as instrução means a judicial assessment of the decision (not) to prosecute someone, it might bear a material similarity with the former. 29 For a comprehensive understanding of the Portuguese sanctioning system, see J de Figueiredo Dias, Direito Penal Português.Parte Geral II. As Consequências Jurídicas do Crime (Coimbra, Coimbra Editora, 1993); M João Antunes, Consequências Jurídicas do Crime: Lições para os alunos da disciplina de Direito Penal III da Faculdade de Direito da Universidade de Coimbra (Coimbra, Coimbra Editora, 2007–2008). 30 Arguably, the right of the accused to have the indictment examined by a judge before the trial enjoys constitutional rank (Art 32(4) Constitution). By plainly suppressing this phase in abbreviated proceedings, the legislature seems to have challenged the decision of the Constitutional Court 22 March 2000 (Acórdão 23

General Aspects of the Procedure 545 arguido, concerning acts prosecuted by the PP or the private prosecutor (if and when the procedure is dependent on private prosecution);31 or (2) the assistente,32 if the procedure does not depend on private prosecution, concerning facts which the PP has decided not to prosecute.33 Understandably, it cannot be requested, under any circumstances, by the PP. This phase encompasses the measures that the investigative judge finds convenient (including, if necessary, investigative measures stricto sensu) and a mandatory debate, which is oral and contradictory, with the participation of the PP, the arguido, the private prosecutor and their lawyers, but not of the civil parties. After the debate, the judge evaluates whether there is sufficient evidence of the requirements on which the application of a sanction depends and, accordingly, indicts the arguido or not.

3. Bodies Carrying Out Investigation and Prosecution (a) Bodies Carrying Out Investigation The PP is the competent authority for directing the inquiry and, hence, the investigation carried out during its course. For that purpose, prosecutors are assisted by the criminal police, which act under their direct supervision and functional (albeit not hierarchical) dependence. The investigative judge is the competent authority for directing the ‘bringing to judgment’—in the course of which some investigative measures, deemed convenient or necessary, can be effected—assisted by the criminal police bodies,34 acting under his/her direct supervision and functional dependence. During the (preceding) phase of inquiry itself, the investigative judge is competent for practising and ordering or authorising some measures that are of his/her exclusive competence (CCP, Articles 268 and 269) because they impinge upon fundamental rights of the targeted individuals. Hence, during the inquiry, the investigative judge acts as a juge des libertés. The criminal police bodies35 assist the judicial authorities (PP and judge) by obtaining notice of crimes, preventing their consequences and identifying the perpetrators, arresting offenders

do Tribunal Constitucional (TC) in www.tribunalconstitucional.pt), and the constitutional conformity of current CCP, Arts 286 (3) and 391-C is doubtful. 31 When it is requested by the arguido, the object of this procedural phase consists of the facts set in the indictment uttered by the PP or, when that is the case (below, section A.3(b)), in the private indictment filed by the private prosecutor. 32 Portuguese law uses the word ‘victim’ to signify the person against whom the crime was committed, ie the holder of the interests especially protected by the violated norm, as well as the injured party claiming (civil) damages in a criminal action, ie the person who has suffered injury, loss or damage as a result of a crime. The victim has also a special locus in the criminal procedure, in the capacity of assistente, which can be translated as ‘private prosecutor’, although the latter designation is not entirely accurate, because not all assistentes are private prosecutors: the persons who have the possibility of prosecuting, in order to prosecute, must always be formally designated as assistentes, but the assistentes do not always have the right to file an independent indictment—this possibility is restricted to private crimes stricto sensu. See CCP, Arts 68ff and CC, Arts 113ff. 33 When it is requested by the assistente (after a decision not to prosecute uttered by the PP), the object of this procedural phase consists of the facts set in his/her request for bringing someone to judgment. 34 Art 8(7) Law 49/2008 of 27 August 2008 on the organisation of criminal investigation (LOCI) prescribes the continuity between the phases of inquiry and ‘bringing to judgment’; accordingly, the police bodies competent for assisting the investigative judge in the latter shall be the same that assisted the PP in the former. 35 The CCP does not define ‘criminal police bodies’ (órgãos de polícia criminal). According to a functional definition, it can be said that criminal police bodies are any of the several existing police bodies while exercising such activity: see A Miranda Rodrigues, ‘O Inquérito no novo Código de Processo Penal’ in Centro de Estudos Judiciários (ed) Jornadas de Direito Processual Penal: O Novo Código de Processo Penal (Coimbra,

546 Portugal in flagrante delicto and carrying out urgent measures necessary to gather evidence on the case (CCP, Article 55).36 For these purposes, and notwithstanding their functional dependence from the judicial authorities, the criminal police enjoy technical and tactical autonomy. There is a wide array of measures that the PP can delegate to the criminal police bodies—in fact, it can delegate any measure but those the delegation of which is explicitly forbidden by law (CCP, Article 270).37 For that reason investigation ends up being, in practice, a predominantly constabulary task: more often than not, the PP only takes over the inquiry once the police consider it complete,38 ready for the PP to decide whether or not to prosecute. Likewise, in ‘bringing to judgment’, the judge may delegate on the criminal police any measure but those mentioned in CCP, Article 290. (b) Bodies Carrying out Prosecution The PP is the competent authority for prosecuting.39 The PP prosecutes public crimes and most crimes are public—thus, in principle,40 the PP has an unrestricted legitimacy to prosecute, and the assistente can adhere to the public prosecution within 10 days. However, the prosecution of private crimes (lato sensu) depends on a private complaint (semi-public crimes) or on a private prosecution (private crimes stricto sensu).41 The

Almedina 1988) 70. According to LOCI, Art 3, the police bodies with generic competence for criminal investigation are: (1) the Judiciary Police (Polícia Judiciária); (2) the National Guard (Guarda Nacional Republicana); and (3) the Public Security Police (Polícia de Segurança Pública). Generally speaking, the Judiciary Police are entrusted exclusivity for investigating the most serious offences, while the National Guard and the Public Security Police are competent for investigating crimes that are not exclusively committed to the first—for instance, notwithstanding the competence of the (Fiscal Brigade of the) National Guard for the investigation of tax offences, the Judiciary Police has exclusive competence for investigating tax fraud and misappropriation exceeding €500,000 (LOCI, Art 7(4)(a)). Other police bodies with specific competence for criminal investigations are: (1) the Immigration Service (Serviço de Estrangeiros e Fronteiras); (2) the Maritime Police (Polícia Marítima); (3) the Authority for Food and Economic Security (Autoridade de Segurança Alimentar e Económica); (4) the Army Police (Polícia do Exército); (5) the Air Police (Polícia Aérea); (6) the Naval Police (Polícia Naval); (7) the Municipal Police (Polícia Municipal); and (8) the Military Judiciary Police (Polícia Judiciária Militar). 36 There are no specialised agencies of criminal investigation in Portugal. However, within the Judiciary Police, there are departments with specific competence for some classes of offences or types of criminality: (1) the Central Directorate for Combating Banditry (Direcção Central de Combate ao Banditismo); (2) the Central Directorate of Investigation on Narcotics Trafficking (Direcção Central de Investigação do Tráfico de Estupefacientes); and (3) the Central Directorate for Combating Corruption, Fraud and Economic and Financial Crimes (Direcção Central para o Combate à Corrupção, Fraudes e Infracções Económico-Financeiras). (4) In the investigation of tax offences and offences against the social security, the competences of tax administration and social security bodies are similar to the criminal police bodies’ in the general criminal procedure (see further below, section A.5(b)). The criminal police bodies are competent to undertake the pre-procedural measures laid down in CCP, Arts 248ff: communication of the notice of the crime, precautionary measures concerning evidence, identification of the suspect and gathering of information, body searches and searches of premises, interception of postal communications and cellular location. 37 The delegation can be generic (CCP, Art 270(4)). As a principle, when a certain investigative measure is to be executed by the criminal police and the competent judicial authority has not delegated that competence to them (either generically or specifically), authorisation (or post factum validation) is required. 38 Marques da Silva (n 17) 78. The police must transfer the results of their investigation to the PP, as an inherence of their functional dependence. 39 Specifically, the prosecutor who directed the inquiry: see CCP, Arts 48, 277 and 283, and Art 219(1) Constitution. 40 Nevertheless, there are some exceptions: the legitimacy to prosecute crimes committed by the President of the Republic in the exercise of his/her functions requires previous authorisation by Parliament (Art 130 Constitution). 41 Several reasons justify this legislative option: in some cases, the insignificance of the offence (namely in minor harm to physical integrity, larceny or slander); in other cases (as sexual offences, or theft/larceny between

General Aspects of the Procedure 547 procedure for semi-public crimes can only be initiated if there is a formal complaint (in principle, by the victim); the PP is then competent for deciding whether or not to prosecute. In any event, the person who makes the complaint may withdraw it until the decision of the first instance court is published, on the condition that the arguido agrees. In private crimes stricto sensu, deciding whether or not to prosecute is an exclusive competence of the private prosecutor (assistente). Only if and when the assistente decides to prosecute may the PP prosecute jointly. Nevertheless, the PP is not obliged to prosecute just because the assistente does: if, during the inquiry, insufficient evidence of the crime has been gathered, the PP shall refrain from prosecuting;42 in this case, it shall give his opinion on the private prosecution, for the inquiry must be closed by an act of the PP. On the other hand, if the PP decides to prosecute, it may only do so with respect to the acts mentioned in the private indictment, to part of them, or to acts that are not mentioned but which involve no substantial alteration of the ones mentioned therein (CCP, Article 285(3)). In ‘bringing to judgment’, the investigative judge analyses the decision taken at the end of the inquiry, in order to decide whether or not the case shall be brought to trial, ie, whether or not the decision of indictment or non-indictment taken at the end of the inquiry shall be confirmed.

4. Threshold for Initiating Investigation and for Prosecuting—Legality and Opportunity (a) Threshold for Initiating Investigation The inquiry is initiated by the PP, when there is notice that a crime has been committed. The perception of such information is previous and exterior to the procedure, but it still is a ‘procedural act’, defined as such and regulated in the CCP, and one of a great importance: it is the necessary threshold for initiating investigation.43 The PP can obtain that information by one of the various means established by CCP, Article 241: ex officio, by communication of the criminal police bodies, or by denunciation.

relatives), the initiation of a criminal procedure against (or, at least, without) the will of the victim could represent for him/her a second, unnecessary victimisation (Figueiredo Dias (n 3) 121). It should be noted that, in some semi-public crimes, the PP retains the possibility of initiating an inquiry and/or of prosecuting, for reasons of public interest or to protect the interests of the victim (CC, Arts 113(5), (6) and 117). 42 It is questionable whether the assistente should be entitled to prosecute private crimes stricto sensu in cases where the PP refrains to join him/her for lack of evidence. It is true that the arguido can always react by requesting ‘bringing to judgment’, but it is also true that eliminating that possibility and transferring the burden of requesting this phase to the assistente could contribute to reduce the pendency of inconsistent cases before the courts. In fact, this option has been pondered recently (Proposta de Lei no 109/X 2007 in www.parlamento.pt), but was eventually dismissed. 43 The PP is not bound to initiate an investigation in all cases, in light of the information it receives: (a) when the information has been informally transmitted, the PP shall open an inquiry only if it is persuaded that it is serious. In dubious cases, the PP can adopt pre-procedural measures, directly or through the criminal police bodies, to confirm whether or not the information is prima facie worthy of credit, in order to decide, accordingly, whether or not to initiate (procedural) investigations. (b) If the prosecution of the crime is dependent on a formal complaint, the investigation cannot be initiated before that moment.

548 Portugal (b) Threshold for Prosecuting The PP shall prosecute whenever there is sufficient evidence, gathered in the inquiry, that a crime has been committed and of who is the perpetrator (CCP, Articles 277(2) and 283(1)). According to CCP, Article 283(2), the evidence is deemed to be sufficient when it leads to a fair probability of substantiating, later in the trial, the application of a sanction to the arguido. Therefore, ‘sufficient evidence’ is configured as a realistic prospect of conviction, ie, ‘when the conviction is more probable than the acquittal’.44 (c) Legality and Opportunity Portuguese criminal procedure follows the legality principle, both in the sense that the PP has the duty to initiate the investigation whenever it receives notice of a crime (above, section A.4(a)), and that it has the duty to prosecute whenever it gathers sufficient evidence, during the inquiry, that the requirements on which the application of a sanction depends are fulfilled (section A.4(b)).45 The diversionary measures set out in CCP, Articles 280 and 281 are deviations from this principle, albeit they do not qualify as instances of opportunity.46

5. ‘Specialised’ Procedure for Financial Criminal Investigations (a) Economic and Financial Offences Law no 5/2002 of 11 January on organised and economic and financial crime establishes a special regime of gathering of evidence, breach of professional secrecy and confiscation of proceeds with respect to some economic and financial offences.47

44

Figueiredo Dias (n 3) 133. The requirements for a formal complaint and/or private prosecution on which the prosecution of private crimes lato sensu depends (above, section A.3(b)) are not exceptions to the principle of legality, since they are still legal conditions of the procedure, and not instances open to discretionary evaluation by the PP. 46 See below section B.11. The ‘filing of the procedure in case of possible exemption from the penalty’ and the ‘provisional suspension of the procedure’ are diversionary measures, but do not constitute a discretionary power of the judicial authority. On the contrary, if the requisites are met, the PP or the investigative judge has the duty to apply them: see F Torrão, A Relevância Político-Criminal da Suspensão Provisória do Processo: criminal da suspensão provisória do processo (Coimbra, Almedina, 2000); and J Conde Correia, Bloqueio Judicial à Suspensão Provisória do Processo (Porto, Universidade Católica Editora, 2012). That is why those measures are not exceptions to the principle of legality, but mere deviations: see M da Costa Andrade, ‘Consenso e oportunidade (reflexões a propósito da suspensão provisória do processo e do processo sumaríssimo)’ in Centro de Estudos Judiciários (ed) Jornadas de Direito Processual Penal: O Novo Código de Processo Penal (Coimbra, Almedina, 1988) 317ff; and P Caeiro, ‘Legalidade e oportunidade: a perseguição penal entre o mito da “justiça absoluta” e o fetiche da “gestão eficiente” do sistema’ (2000) 84 Revista do Ministério Público, Ano 21, 41. 47 Specifically, to: (a) drug trafficking; (b) terrorism and terrorist organisation; (c) arms trafficking; (d) trading in influence; (e) bribery of public officials; (f) peculation; (g) unlawful participation of a public official in business under his authority; (h) money laundering; (i) criminal association; and, when committed in an organised manner: (j) smuggling; (k) trafficking and vitiation of stolen vehicles; (l) procuring of adults, procuring of minors and trafficking in minors; and (m) counterfeiting of money (Art 1(1), Law no 5/2002). The measures set by this law are also applicable to the offences listed in Art 1 of Law no 36/94: ‘(a) corruption, peculation and unlawful participation of a public official in business under his authority; (b) damaging management in economic units of the public sector; (c) fraudulent receipt or embezzlement of subsidies, grants or credit; (d) economic or financial offences committed in an organised manner using computer technology; and (e) economic or financial offences of international or transnational nature’. 45

General Aspects of the Procedure 549 In turn, Law no 36/94 of 29 September on corruption and economic and financial crime establishes that the PP and the Judiciary Police48 can adopt preventive measures49 concerning offences pertaining to those domains of criminality. It must be noted that as soon as a suspicion arises, in the execution of those preventive measures, that a crime has been committed, a (regular) criminal procedure shall be initiated. (b) Tax Offences Articles 35 to 50 of Law no 15/2001 of 5 June (General Regime of Tax Offences—GRTO) provide for special procedural rules regarding tax offences (taken to mean both fiscal offences and offences against the social security system).50 Most of the special rules concern the competences of the tax administration and social security bodies while acting as criminal police bodies: competence for the acts of the inquiry is presumed to be delegated to them, whereas in the general procedure there is no presumption of delegation to the criminal police; they are competent for initiating an inquiry, although such decision has to be immediately communicated to the PP (which is, also in these investigations, the competent authority for directing that phase and for deciding whether or not to prosecute); they provide technical assistance to the PP during all the phases of the procedure and have the right to consult the process, to be informed on its development and to be communicated the final decisions of each procedural phase; finally, when investigations are concluded, they issue a reasoned opinion on the case and hand it to the PP.51 Moreover, GRTO, Article 38 introduces some special and rather detailed rules on the ‘deposit of proceeds and instruments of the crime and on their immediate sale in customs offices and public deposits’. This provision is further complemented by Article 39 of the same law, which regulates ‘other forms of deposit’. The maximum terms of the inquiry are similar to those in the general procedure, but the inquiry cannot be concluded until the fiscal situation on which the qualification of the facts as criminal depends is canvassed (which frequently carries an unbearable dilation of the inquiry). (c) Subsidiarity The general procedure is subsidiary to the ‘special’ procedures mentioned previously (CCP, Article 3). So, in practice, with the exception of those few special rules, the procedure applicable to those offences is very similar to the general procedure. 48 Through the Central Directorate for Combating Corruption, Fraud and Economic and Financial Crimes of the Judiciary Police, notwithstanding the competence of other (mentioned) authorities: see above section A.3(a). 49 Namely, the gathering of information on facts that may raise suspicion of the commitment of a crime, the request of interrogations, inspections or other measures aimed at verifying the regularity of certain administrative acts or procedures between the Public Administration and private entities; and finally the proposition of measures capable of reducing corruption and economic and financial crime. 50 For a global (substantive and procedural) description of the GRTO, see I Marques da Silva, Regime Geral das Infracções Tributárias (Coimbra, Almedina, 2007); and, for a thorough (strictly substantive) analysis of tax offences, see S Aires de Sousa, Os Crimes Fiscais—Análise Dogmática e Reflexões sobre a Legitimidade do Discurso Incriminador (Coimbra, Coimbra Editora, 2006). 51 If the PP considers that the conditions for an exemption of the penalty are present, it can file the case, but is legally bound to hear those administrative bodies beforehand, whereas, in the general procedure, in similar situations, it does not hear the criminal police. If the PP decides not to prosecute, it must communicate the decision to those bodies, so that they can ascertain whether the facts constitute an administrative offence and, if so, apply the relevant (administrative) sanctions.

550 Portugal 6. International Cooperation in Criminal Matters Law no 144/99 of 31 August on international cooperation in criminal matters (LICCM) regulates traditional cooperation (extradition, transfer of criminal proceedings, execution of penal sentences, transfer of sentenced persons, surveillance of sentenced persons or of persons on parole, and mutual assistance in criminal matters),52 while cooperation based on mutual recognition is governed by Law no 65/2003 of 23 August (LEAW), which transposed into Portuguese law the Council FD 2002/584/JHA of 13 June 2002 on the EAW.53

7. The Status of the Arguido The suspect, as such, has no formal status in the Portuguese criminal procedure. Therefore, he/she has no special procedural rights or duties. Only the formal designation of a person as a subject of the procedure gives rise to those rights and duties, and the suspect formally labelled as a subject of the procedure is called an arguido. Thus, the designation of a suspect as arguido is a decision of utmost importance for the targeted individual and that is why the moment and the conditions of such procedural act are regulated in detail by the CCP (Articles 57 f). A person must be designated as arguido if: (a) he/she is prosecuted or the phase of ‘bringing to judgment’ is requested against him/her; (b) an inquiry is running against him/her and he/she is questioned by any authority; (c) a coercive measure (medida de coacção) or patrimonial warrant (medida de garantia patrimonial) is to be applied against him/her; (d) he/she is arrested; (e) an official record stating that he/she has committed a crime is notified to him/her, unless the information contained in that record is clearly inaccurate;54 (f) he/she is being questioned and a suspicion against him/her arises.55 Moreover, any person has the right to request to be designated as arguido if he/she is suspected to have committed a crime and measures that personally affect him/her are being undertaken. When designating someone as an arguido, the authorities must inform the person about the rights that he/she has thenceforth, and, if necessary, explain them to him/her.56 The arguido keeps that status until the end of the procedure. Besides the rights that assist every person and the rights that assist the other formal subjects of the procedure, the arguido is especially entitled to the set of rights—which integrate a single fundamental right of defence—guaranteed by CCP, Article 61(1), some of which enjoy constitutional rank: (a) to be present in all procedural acts that concern him/her directly; (b) to be heard; (c) to be informed about the acts that are imputed to him/her; 52 See MA Lopes Rocha, T Alves Martins, Cooperação Juduciária Internacional em Matéria Penal: Comentários (Lisbon, Aequitas, 1992); JMC Bucho, L Silva Pereira, MGV Azevedo, M Mendes Serrano, Cooperação Internacional Penal (Lisbon, Centro de Estudos Judiciários, 2000) with further references. 53 All European normative instruments mentioned in this article can be found at www.eur-lex.europa. eu. See P Caeiro, S Fidalgo, ‘The Portuguese experience of mutual recognition in criminal matters: five years of European Arrest Warrant’ in G Vernimmen Van-Tiggelen, L Surano, A Weyembergh (eds), The Future of Mutual Recognition in Criminal Matters in the European Union (Bruxelles, Éditions de l’Université de Bruxelles 2009) 445ff, with further references. 54 On this record—called auto de notícia—, see below section D.4. 55 In this event, the questioning is suspended and the person is designated as arguido. 56 If the suspect has already been designated as arguido when he/she is questioned, he/she must be informed of these rights again and, if necessary, given proper elucidation (CCP, Arts 61(1)(h), 141(4), 143(2) and 144(1)).

Investigative Measures 551 (d) to remain silent; (e) to be assisted by a defence lawyer in every procedural act in which he/she takes part; (f) to intervene in the inquiry and in the optional phase of ‘bringing to judgment’, namely providing evidence and requesting the undertaking of any measures that he/she considers relevant to find out the truth; (g) to be informed about the rights springing from his/her procedural status; and (h) to appeal the decisions that personally affect him/her. The arguido is bound by the specific duties set in CCP, Article 61(3): (a) to be present before the judge, PP or criminal police, when imposed by the law, after being regularly convened to do so; (b) to tell the truth while answering questions about his/her identity and, when imposed by the law, about his/her criminal record;57 (c) to be subjected to the measures aiming at gathering evidence and to the coercive measures and patrimonial warrants established by the law; and (d) to be subjected to a peculiar58 coercive measure called termo de identidade e residência (TIR), by virtue of which the arguido has, among others, the duties not to change his/her residence and not to be absent for more than five days without notifying the authorities.59 B. INVESTIGATIVE MEASURES

1. Arrest and Custodial Detention Under Portuguese criminal procedure law, arrest and custodial detention cannot be considered as ‘investigative measures’, as they do not aim at collecting evidence and, accordingly, are not regulated under Title III, Book I, Part I of the CCP (on the ‘means for gathering evidence’—‘meios de obtenção de prova’: CCP, Articles 171 f).60 Arrest is regulated as a ‘cautionary measure’ (‘medida cautelar’) and custodial detention as a ‘coercive measure’ (‘medida de coacção’), and they serve different purposes. Yet, for practical reasons, arrest and custodial detention will be dealt with under the present chapter, along with those means for gathering evidence. (a) Arrest61 In the Portuguese procedural system, a person can be arrested62 in order to be judged within the maximum term of 48 hours, under the processo sumário, or to have a coercive measure applied to him/her. A person can also be arrested in order to be taken immediately (or, if this is not possible, within the maximum term of 24 hours) to a judicial authority so as to participate in a procedural act. When a person has been arrested to be tried under the processo sumário but this was not possible, or to have a coercive measure (either during the

57

Eg in all the interrogations to which he/she may be subjected (CCP, Arts 141(3), 143(2) and 144). The peculiar nature of this measure lies in the circumstance in which it must be applied, with no further requirements, to every individual who is designated as arguido (CCP, Art 196). 59 If the arguido does not fulfil these duties, he/she may be legitimately tried in absentia. 60 Notwithstanding, all the means for gathering evidence are not regulated in the CCP. Some of them—as will be seen below—are regulated in special legal instruments of criminal procedure. 61 CCP, Arts 254ff. See also CCP, Art 141. 62 We use the expressions ‘arrest’ and ‘detention’ as synonyms, but the CCP uses one expression only: detenção. 58

552 Portugal inquiry or ‘bringing to judgment’) applied to him/her, that person must be questioned by a judge within the maximum term of 48 hours (‘first judicial interrogation’).63 Detention in flagrante delicto is possible only for offences punishable with imprisonment.64 Detention without flagrante delicto can only be ordered by a judge or, if custodial detention would be admitted in that case, by the PP, if there is good reason to believe that the person would not spontaneously present him/herself before a judicial authority within the due term. In case of urgency, even if there is no flagrante delicto, the criminal police can detain a person,65 but the detention must be communicated either to a judge or to the PP (depending on its purpose), in order to be validated. The arguido may appeal. Any citizen in the exercise of his/her political rights may request habeas corpus against unlawful detention.66 A person can be arrested if his/her extradition has been requested and the judge who is competent for deciding if the request is prima facie viable67 decides that it ought to proceed to the hearing phase (LICCM, Articles 51 and 52). Arrest is also possible if, in urgent cases, before submitting the formal request for extradition, the foreign state requests that the person be arrested (‘provisional arrest’—Article 38). In turn, Article 39 states that, even before any sort of request has been made, the criminal police can arrest persons that, according to official information (eg, provided by Interpol) are sought by foreign authorities for a crime that notoriously justifies extradition (‘provisional unrequested arrest’).68 A person can also be arrested when an EAW has been duly issued (LEAW, Article 16(5)). This arrest shall comply with the provisions of the CCP on arrest (Article 16(6)).

63 The scope of this interrogation is to ascertain whether or not the reasons that motivated the arrest are (still) valid and whether or not there is evidence on the facts being ascribed to the person and to hear him/her on those facts. Accordingly, the judge decides whether or not a coercive measure (other than the TIR) is to be applied. 64 This also applies, a minori ad maius, to the detention of persons who have not been caught in flagrante delicto: P Pinto de Albuquerque, Comentário do Código de Processo Penal à luz da Constituição da República e da Convenção Europeia dos Direitos do Homem, 3rd edn (Lisbon, Universidade Católica Editora, 2009) 681. If the prosecution of the crime depends on a formal complaint and the victim does not submit it immediately after the detention takes place, the suspect must be released. Detention in flagrante delicto is not possible for offences for the prosecution of which private prosecution is requested. 65 Under the following cumulative conditions (CCP, Art 257(2)): ‘(i) pre-trial custodial detention would be admitted in the concrete case; (ii) there is good reason to believe that the person concerned might escape; and (iii) due to urgency, it is not possible to wait for the presence of a judicial authority’. 66 On the following grounds (CCP, Art 220): ‘(i) expiry of the term to present the detained before the judge; (ii) keeping of the detention out of the required places; (iii) execution or order of the detention by an authority without competence for that purpose; or (iv) execution of the detention by virtue of a fact for which the law does not allow it’. 67 This is not an evidentiary ascertainment similar to the ‘prima facie case’ usually required by Anglo-American systems of extradition, but a mere ascertainment of whether or not the extradition request bears ‘sufficient elements’ to be decided by the court. 68 According to Pinto de Albuquerque (n 64) 572, this ‘provisional unrequested arrest’, previous to the opening of any formal procedure, is unconstitutional. But that is not the understanding that has been upheld by the decision of Constitutional Court 12 March 1997 228/97 (Acórdão TC 228/97 in www.tribunalconstitucional.pt), on the corresponding Arts 38, 65 and 66 of Decree-Law no 43/91 of 23 January (which preceded the LICCM).

Investigative Measures 553 (b) Custodial Detention69 This measure requires strong evidence (‘fortes indícios’) that the arguido has committed, with intent, a crime punishable with imprisonment exceeding five years, or exceeding three years, in cases of terrorism, violent or highly organised criminality, aggravated bodily harm, aggravated larceny, aggravated damage, computer or communications swindling, receiving of stolen goods, falsification or counterfeiting of documents, attack against the security of road traffic, possession of prohibited firearms, detention of weapons or similar devices or substances in prohibited places or offences committed with weapons. This measure is also possible—regardless of a degree of suspicion and of the crime at issue—if the person concerned is requested for extradition.70 The CCP does not explicitly contemplate the fact that an EAW has been issued as grounds for custodial detention, but the Supreme Court of Justice has already ruled that the EAW is ‘an expeditious form of extradition, as results from Articles 1 and 2 (explicitly, from Article 2(2)) of LMDE’ and that, therefore, custodial detention ‘is admissible’ when an EAW has been issued.71 Custodial detention—as any other coercive measure—can only be applied if: (i) the arguido has escaped or there is a risk that he/she will escape; (ii) there is a risk that the arguido will disturb the investigation, namely the gathering of evidence or its veracity (by destroying or misrepresenting evidence); or (iii) there is a risk that the arguido will continue his/her criminal activity or severely disturb the public order. Furthermore, custodial detention—as well as house arrest—can be applied only when other coercive measures would be inadequate or ineffective. If the application of a coercive measure involving deprivation of liberty proves necessary, preference shall be given to house arrest72 (to the detriment of custodial detention), provided that it is sufficient to attain the goals pursued by the application of coercive measures involving deprivation of liberty.

69

CCP, Arts 191ff (202). According to CCP, Art 202(1)(c), this measure would also be possible—regardless of a degree of suspicion and of the crime at issue—if the person concerned is subject to a process of expulsion, or has entered or is staying irregularly in Portuguese territory. However, this conflicts with Law no 23/2007 of 4 July 2007on the entry, stay, departure and expulsion of foreigners from national territory—which replaced Decree-Law no 34/2003 of 25 February 2003. The latter statute operated an important change, by explicitly prohibiting the application of the custodial detention regulated in the CCP to persons against whom there is a process of expulsion, or who have entered or are staying irregularly in Portuguese territory, and the 2007 Law kept that option in its Art 142(1). Shortly after (29 August 2007), the CCP was amended by Law no 48/2007 and the references to ‘expulsion’ and ‘irregular entry or stay in Portuguese territory’ in the CCP were not suppressed. However, it is unlikely that the legislature would have wanted to contradict an option reaffirmed so little time before, which led some authors (eg Pinto de Albuquerque (n 64) 571) to reasonably argue that those references should be considered, through interpretation, as abrogated. Yet, the CCP was modified again in 30 August 2010 (by Law no 26/2010) and those references were maintained. 71 Supreme Court of Justice 25 October 2007 (Acórdão STJ processo 07P3995 in www.dgsi.pt), confirmed in 28 October 2009 decision 325/09 (Acórdão STJ, processo 325/09 0TRPRT-A S1). It is submitted that this construction does not infringe upon the prohibition of detrimental analogy, since it results from a (legitimate) extensive interpretation of the provision that allows for the custodial detention of persons who are requested for extradition (CCP, Art 202(1)(c)). Nevertheless, the argument used by the Supreme Court is unconvincing, since the FDEAW does not use the expression ‘extradition’ for a purpose other than differentiating this form of cooperation from the EAW. 72 Obrigação de permanência na habitação—the only other coercive measure existing in Portuguese criminal procedure that involves deprivation of liberty. 70

554 Portugal This measure must be ordered by a judge,73 after hearing the arguido (with the mandatory presence of his/her defence lawyer), except in case of duly justified impossibility, and cannot be based on facts or elements that are not communicated to the arguido during the hearing. This measure has maximum terms, defined by CCP, Article 215. The decision to apply custodial detention (or to keep it in force) can be appealed, and the appeal must be decided within the maximum term of 30 days.74 Besides, any citizen in the exercise of his/her political rights can request habeas corpus against illegal imprisonment.75

2. Questioning of the Suspect or Arguido Pre-Trial76 It is mandatory to question a person whenever there is a founded suspicion that he/she has committed a crime; however, since the purpose of the questioning is precisely to determine whether or not a crime has been committed and who is the perpetrator, the questioning may be ordered with a lesser degree of suspicion. This measure may be executed either by a judge, the PP or the criminal police. The defence lawyer must be informed about the place and time of the questioning, but, unless the arguido is in custodial detention, his/her presence is not mandatory. The arguido has the right to remain silent and any declaration that he/she makes during the preliminary phases of the procedure has very limited evidentiary value.77 Questions on the personality, personal conditions or previous conduct of the suspect/arguido are legitimate only to the extent that those issues are strictly indispensable to prove constitutive elements of the crime.

3. Questioning of Witnesses Pre-Trial78 This measure can be executed by a judge, the PP or the criminal police, with respect to any crime, in order to determine whether it has been committed and who is the perpetrator.79 73 During the inquiry, the measure may be ordered at the request of the PP. According to CCP, Art 194(2), the judge cannot order a coercive measure that is more severe than the one requested by the PP. Hence, since custodial detention is the most severe coercive measure existing in the Portuguese criminal procedure, the judge, during the inquiry, can order it only if the PP has specifically requested it. After the inquiry is concluded, the judge can order the measure ex officio. 74 According to CCP, Art 213, the judge must re-examine ex officio the conditions legally required for the execution of custodial detention within the maximum term of three months, counted from the date when the measure was applied or re-examined; when the arguido is indicted or the indictment is confirmed; and whenever there is a final decision on the merits. It is also possible to appeal the decisions maintaining custodial detention, and this appeal does not affect appeals previously submitted that have not been decided yet. 75 If the imprisonment (CCP, Art 222(2)): ‘(i) was executed or ordered by an authority without competence for that purpose; (ii) was motivated by an offence which the law does not allow imprisonment for; or (iii) is being kept beyond the terms prescribed by the law or by the judicial decision that ordered it’. 76 CCP, Arts 140ff. 77 CCP, Art 343. See further below section E2(d) and E2(e). 78 CCP, Arts 128ff. 79 Under exceptional circumstances—eg when that is necessary for protecting purposes (cf Law no 93/99 of 14 July 1999 on the protection of witnesses)—, the questioning of witnesses, assistentes, civil parties and experts may be executed by telephone or video-conference, and their identities may be concealed. Identical provisions are established for the questioning of children who are deemed to be particularly vulnerable.

Investigative Measures 555 The following subjects cannot testify as witnesses, due to their procedural status: (1) the arguido; (2) the assistente and the civil parties; and (3) experts (on their own expertises).80 The following subjects have the right to refuse to testify: the descendants, ascendants, brothers, sisters, relatives by affinity of first or second degree, adopters, adopted and the spouse81 of the arguido. As to professional secrecy, the ministers of any religion, physicians, lawyers, journalists, members and employees of credit institutions82 and other people who have the right or duty to keep secrecy over certain facts can also refuse to testify on facts covered by that right or duty;83 however, these persons can be obliged to testify, if a high court, after consulting the entity that represents the profession at stake, decides that, in the case, the relevance of the testimony overcomes the obligation to keep the secrecy (this exception does not apply, under any circumstances, to religious secrecy). In principle, the defence lawyer is not informed of the place and time of the questioning, and is not present at the questioning, with the exception of the so-called ‘taking of statements for future memory’ (declarações para memória futura): when it is probable that a witness cannot be present in the trial, due to an illness or predictable absence, the judge can question him/her (as well as victims of crimes of human trafficking or of sexual crimes) before the trial, under specific formal conditions, with the exceptional possibility of using their declarations as direct evidence later in the trial. In those cases, the presence of the lawyer is essential to ensure the rights of the defence regarding that testimony.

4. Interception of Postal Communications84 This measure involves the seizure, even at post offices, of letters, packages, values telegrams or any other mail, and may be applied when there is a founded suspicion that: (i) the mail has been sent by the suspect or that he/she is the recipient, even if under another name or via another person; (ii) the crime is punishable with over three years of imprisonment; and (iii) the measure is of major importance for the finding of the truth or for evidence purposes. Seizure or any other form of control over postal communications between the arguido and his/her lawyer is prohibited under penalty of nullity, unless the judge has good reason to believe that the intercepted mail constitutes the object or an element of a crime. The material act of interception is executed by the criminal police bodies, but the execution of the measure must be authorised or ordered by the judge.85 Intercepted mail that is

80

See further below, section B.15. As well as the former spouse or the person that formerly cohabited with the arguido in a relationship analogous to matrimony, but only on the facts occurred during the matrimony or analogous relationship. 82 On the special conditions for financial investigations provided for by the Law no 5/2002, see below, section B.9. 83 Some authors consider that these provisions on professional secrecy shall be applied by analogy to the managers of legal persons who are not acting as their representatives in the criminal procedure, so that they are entitled the right not to testify: see Pinto de Albuquerque (n 64) 359. 84 CCP, Arts 179 and 252. 85 The judge is the first person to take knowledge of the content, except in the emergency procedure: the judge may authorise the criminal police, at their request, to immediately open sealed packages, when there is a founded suspicion that they contain useful information that might be lost in case of delay. Furthermore, if the same conditions are met, the criminal police may order the post or telecommunication offices to suspend the delivery of any mail addressed to the suspect. This measure must be validated (post factum) in writing and with reasoning 81

556 Portugal not relevant as evidence must be delivered to whom it belongs, and the judge is obliged to keep secret the information that he/she has taken knowledge of.

5. Interception of the Contents of Telecommunications86 This measure can be applied only when there is founded reason to believe that its execution is indispensable to find the truth or that the gathering of evidence of a crime would otherwise be impossible or very difficult. It may be applied, inter alia,87 to mere suspects (ie, to persons who have not yet been formally designated as arguidos), but the CCP requires that a criminal procedure (an inquiry) has been initiated, even if against unknown person(s). Hence, it cannot be used as an instrument for extra-procedural investigations.88 It covers all forms of communication (telephone, e-mail and other forms of telematic transmission of data),89 and can be applied to the following categories of offences: (a) crimes punishable with imprisonment exceeding three years; (b) crimes related to drug trafficking; (c) crimes involving the use of firearms, explosives or similar devices or substances; (d) smuggling; (e) verbal abuse, threat, coercion and interference in a person’s private life and disturbance of peace and tranquillity when committed by telephone; and (f) escape from prison, if the escapee has been convicted for any of the crimes mentioned above. The interception and recording of conversations or communications between the arguido and his/her lawyer is prohibited, except when the judge has good reason to believe that those conversations constitute the object or an element of a criminal offence (in this case, however, the execution of the measure is restricted to that specific offence, eg, receiving stolen goods, not to the offence that was already under investigation, eg, the theft from where the goods proceed90). This measure must be ordered, authorised or validated91 by a judge, ex officio or at the request of the PP, and is executed by the criminal police. The execution has a maximum

by the judge within 48 hours; otherwise, the suspension of the delivery will be cancelled and the mail redirected to the recipient. 86

CCP, Arts 187ff. This measure can only be applied to: (1) a suspect or arguido; (2) a person in relation to whom there is founded reason to believe that he/she is acting as an intermediary to a suspect or arguido; or (3) the victim of a crime, with his/her consent, explicit or presumed. The restriction of the subjective scope of this measure was only recently introduced: before Law no 48/2007 was passed, it could be applied to any person. The communications of legal representatives acting on the behalf and in the interest of a legal person can also be intercepted and recorded. However, since the group of persons that can be considered as legal representatives of a legal person is very wide, some problems concerning the subjective scope of the measure may arise. For instance, some authors propound that it cannot be applied to persons acting as intermediaries for a (legal representative of a) legal person, as this would virtually encompass ‘a group of persons so wide that it would be totally indefinite’ (Pinto de Albuquerque (n 64) 511). 88 G Marques da Silva, Curso de Processo Penal, 4th edn, vol 2 (Lisbon, Verbo, 2008) 248. 89 But not facsimile, telegraph or telex (Pinto de Albuquerque (n 64) 527). 90 A significant part of Portuguese legal literature propounds that, although the CCP does not explicitly state so, this restriction should apply to other subjects who can refuse to testify as witnesses as a result of professional secrecy (see above, section B.2(b)), although not to the other subjects who, for other reasons, can refuse to testify, since those reasons are not relevant in this context: in this sense, eg M da Costa Andrade, Sobre as Proibições de Prova em Processo Penal (Coimbra, Coimbra Editora, 1992) 299. 91 Post-factum validation is required when the emergency procedure has been undertaken: the criminal police can take previous knowledge of the content of the recording, in order to execute precautionary measures that are urgent or necessary to ensure the gathering of evidence. 87

Investigative Measures 557 term of three months, which can be extended for equal periods of time, if the required conditions are still met.

6. Monitoring of Telecommunication Traffic Data This measure must be ordered or authorised by a judge and is executed by the criminal police, under the same conditions as the interception of telecommunications dealt with in the previous section (CCP, Article 190). Concerning the retention of data92 generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, Law no 32/2008 of 17 July (Law on the retention of data generated or processed in connection with the provision of publicly available electronic communications services)93 establishes that the companies that provide those services are bound to preserve data for a period of one year and to transmit them to the authorities competent for criminal investigations, when this is ordered or authorised by a judge. Those companies must elaborate reports on the extraction of all data transmitted to the authorities and send them to the National Commission on Data Protection (Comissão Nacional de Protecção de Dados).94 Law no 109/2009 of 15 September95 (Law on Cybercrime) regulates the preservation, disclosure, search and seizure of computer data (including traffic data), with respect to: (1) offences listed in that law (computer falsity, damage to programs or other computer data, computer sabotage, illegitimate access, illegitimate interception and illegitimate reproduction of a protected program); (2) crimes committed through a computer system; and (3) crimes for the proof of which evidence in digital support is required. It also provides for the possibility of search and seizure of e-mail and analogous forms of communication, interception of telecommunications and infiltration.96 As a principle, these measures must be ordered by a judicial authority (PP on judge).

92

‘Data’ means traffic data, location data and the related data necessary to identify the subscriber or user. This statute transposed into the Portuguese legal system Directive 2006/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC [2006] OJ L105/54. The measure can only be applied for the offences listed in that law (cf Art 2(1)(g)), and to the same persons that can be subjected to the interception of telecommunications and to the monitoring performed by the criminal police. 94 The Commission is an independent administrative authority whose competence is regulated by Law no 67/98 of 26 October 1998 on the Protection of Personal Data, which transposed into the Portuguese legal system Directive 95/46/CE of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281. 95 This statute transposed the Council FD 2005/222/JHA of 24 February 2005 on attacks against information systems, and adapted Portuguese law to the Convention on Cybercrime of the Council of Europe. Cf Arts 11ff. 96 Art 19 Law no 109/2009 extends the use of infiltration (see below) to the investigation of the crimes defined in the Law on Cybercrime, crimes committed through a computer system punishable with imprisonment for over five years, and to the following offences, even if punishable with less than five years, when committed with intent: sex crimes against minors or disabled persons; aggravated swindling; communications or computer swindle; racial, religious or sexual discrimination; economic or financial offences; and some of the crimes punished by the Law on Copyright (Código dos Direitos de Autor e dos Direitos Conexos—Decree-Law no 63/85 of 14 March 1985). 93

558 Portugal 7. On-line Search of Computers Currently, this measure is not admitted by the Portuguese legal system.97 8. Data Mining All measures set out in the Law on Cybercrime must refer to specific and determinate data, so as to avoid ‘data mining’. Otherwise, these measures would be inadmissibly intrusive. Yet, when, in the course of a search, a reasonable suspicion arises that the relevant data are located in a different computer system, or in a different part of the system being searched, the search can be extended, provided that authorisation is granted or an order is issued by the competent judicial authority (Article 15(5)). 9. Searches and Seizures98 (a) Body Searches Superficial searches are ordered when there is evidence that a person has concealed on his/ her person objects relating to an offence or which may be used as evidence. Invasive searches are regulated by the provisions concerning the ‘examination’ of persons, which aims at checking the traces left by a crime and any clues as to the way in which it was committed, where it took place, who committed it and the victims thereof. Examinations carried out in order to assess damage resulting from bodily attacks or injuries to health are performed by forensic establishments and forensic surgeries. Body searches (either superficial or invasive) must respect the personal dignity of the targeted person and, as much as possible, his/her modesty. (b) Searches of Premises Searches of premises are ordered when there is evidence that makes it reasonable to believe that objects which are connected with a crime or with the arguido or someone who should be arrested are located in private premises or places not accessible to the public. As a principle, home searches can only be executed between 7 am and 9 pm,99 and, also as principle, must be ordered or executed by a judge.100

97 Portuguese criminal procedure, unlike others, does not establish a rule of numerus clausus for admissible evidence: CCP, Art 125 states that any sort of evidence that is not prohibited by law is admissible and CCP, Art 126 establishes a list of prohibited evidence (obtained through ‘treacherous means’). This includes evidence obtained through intrusion in the private life of a person without his/her consent and in the absence of a legal provision explicitly allowing for it and regulating its conditions. Since on-line search of computers is not explicitly allowed for and regulated by the law (both the CCP and the Law on Cybercrime are silent on the issue), it falls under the concept of ‘treacherous means’, with the consequence that evidence obtained thereby is null and can only be used if the person concerned gives his/her consent. On the status of illegally or improperly obtained evidence, see further below section D.1. 98 CCP, Arts 25 and 171ff. 99 CCP, Art 177 establishes some exceptions to this principle: (a) cases of terrorism and violent or highly organised crime; (b) cases where the person targeted gives his/her explicit consent; and (c) cases where a person is caught in flagrante delicto, committing an offence punishable with over three years of imprisonment. 100 CCP, Art 177(3) allows the PP to order and the criminal police to execute these searches under exceptional circumstances, similar to those mentioned in the previous note.

Investigative Measures 559 Searches of lawyers’ or physicians’ offices must be personally presided over by a judge, who must previously communicate the measure to the president of the local council of the Bar Association or of the Order of Physicians, respectively, in order for him/her or a delegate of his/hers to be present at its execution. If the search is to be made in an official health establishment, that communication must be made to the president of the board of the establishment or to his/her legal substitute. (c) Seizures Seizures are authorised, ordered or validated by a judicial authority (PP or judge) and concern prizes, rewards, profits or any objects that were used or were meant to be used in the commitment of a crime, as well as any objects left by the agent in the local where the crime was committed and any other that can be used as evidence.101 The judge cannot seize documents covered by professional secrecy, except if they, themselves, constitute the object or an element of an offence. For this purpose, the judge is the first person to acknowledge the content of the documents—if they constitute relevant evidence, the judge shall seize them and append them to the process; if not, they shall be restored and the judge is thenceforth obliged to secrecy with respect to the irrelevant information acknowledged. The judge executes seizures of documents, values and other objects—even if kept in individual vaults and even if they do not belong to the arguido nor are deposited in his/ her name—whenever there is good reason to believe that they are connected with a crime and are of major relevance to the finding of the truth. For this purpose, the judge can examine any mail or bank documentation. Such exam must be made personally by the judge, though he/she may be assisted by the criminal police or by qualified technicians, all of whom remain bound to secrecy. With respect to economic and financial offences (see above, section A.5(a)), the professional secrecy of members, employees and persons who provide services for credit institutions and financial corporations, as well as the secrecy that binds officials of the tax administration, must cease in favour of the criminal investigation, if there are reasons to believe that the information covered by such secrecy is relevant to the finding of the truth. For that purpose, it suffices that the competent judicial authority (the PP, during the inquiry, the investigative judge, during ‘bringing to judgment’, and the judge, during trial) authorises the breach. This measure is supposed to be carried out in a secretive way. Besides, the Portuguese legal system provides for other special regimes concerning the search and seizure of bank or financial information: Decree-Law no 15/93 of 22 January on drug trafficking establishes the breach of professional secrecy by any sort of entity, public or private—it suffices that the judicial authority (judge or PP) orders the measure

101 When it is no longer necessary to hold the seized assets as evidence, they may be returned to the appropriate person, unless the assets are to be confiscated. Protective orders can be taken under Portuguese law to prevent any transaction, transmission or disposal of the assets which are or may be covered by the confiscation decision. Objects which were used to commit the crime or which were intended to be used in committing the crime are forfeited to the state when, given their nature or the circumstances of the case, they are a risk to the safety of persons, morality or public order or if there is a serious risk that they might be used to commit further offences. Confiscation takes place even where no identifiable person can be charged with a criminal offence or convicted. Where the law does not lay down a specific destination for the confiscated objects the judge may order their complete or partial destruction or removal from circulation. Similarly, in drugs crimes those assets are always confiscated.

560 Portugal and identifies the suspect or arguido (Articles 21 f and 60); Law no 11/2004 of 27 March on money laundering establishes a duty for certain financial and non-financial entities to provide any information and document requested by a judicial authority; Decree-Law no 454/91 of 28 December (legal regime of cheques) establishes a duty for the credit institutions to provide to the judicial authority who requests it any information necessary to prove the reason why a certain cheque has not been paid. Under exceptional circumstances, the criminal police may carry out searches (either body searches or searches to premises) without prior authorisation and may proceed to the seizure of objects in the course of those searches or when there is urgency or risk in delay, as well as adopt precautionary measures necessary to preserve the seized objects. These seizures must be validated by the competent judiciary authority within the maximum term of 72 hours.

10. Freezing of Bank Accounts It is worth noting that ‘freezing’ does not correspond to a specific concept in Portuguese law. However, it may be considered to take place in four different situations: —

As a common ‘seizure of values and monies’ for evidentiary purposes (CCP, Article 181(1)): the judge may seize the values and monies existent in bank accounts if there is good reason to believe that they are connected with an (any) offence and will be of ‘great interest to find the truth’, even if they do not belong to the arguido nor are deposited in his/her name. — As a guarantee for possible damages (arresto—CCP, Article 228): at the request of the PP or of the person claiming damages, the judge may order the cautionary seizure of assets belonging to the arguido, as provided for in common civil procedure, so as to guarantee the former’s right to compensation in case of conviction. — As a guarantee for the future payment of the amount resulting from ‘enlarged confiscation’ in organised and economic and financial crimes (Article 10 Law 5/2002): should the arguido possess assets of unknown origin, inconsistent with his known legitimate revenue, the PP shall determine their value and request the seizure of assets (including the monies existing in bank accounts) to guarantee the payment, in case the arguido is convicted and a decision of ‘enlarged confiscation’ is issued. This measure requires ‘strong evidence’ that the arguido committed the crime at stake—but does not require evidence that the ‘inconsistent assets’ have a criminal origin.102 — As a means of preventing money laundering (Article 4(4) and (5) Law no 5/2002): in the context of controlling bank accounts as a means of gathering evidence for the categories of offences enumerated in Article 1 of Law 5/2002, the judge may order or authorise the freezing of bank accounts (concerning either some or all operations)

102 On the confiscation and recovery of assets in Portuguese law, see J Damião da Cunha, ‘Perda de bens a favor do Estado’, in Direito Penal Económico e Europeu: Textos Doutrinários, vol III, 2009 (Coimbra, Coimbra Editora, 2009) 125 ff; J Fernandes Godinho, ‘Brandos costumes? O confisco penal com base na inversão do ónus da prova’, in Liber Discipulorum para Jorge de Figueiredo Dias (Coimbra, Coimbra Editora, 2003) 1315 ff; P Caeiro, ‘Sentido e função do instituto da perda de vantagens relacionadas com o crime no confronto com outros meios de prevenção da criminalidade reditícia’ (2011) 21 Revista Portuguesa de Ciência Criminal 267 ff; and J Conde Correia, Da Proibição do Confisco à Perda Alargada (Lisboa, Imprensa Nacional, 2012), with further references.

Investigative Measures 561 if he/she deems it ‘necessary to prevent the offence of money laundering from being committed’.103 Arguably, the mere possibility that a bank account is used for such aim, in the abstract, is not sufficient; rather, there must be a concrete risk of money laundering activity.

11. Production Orders Rules on production orders were mentioned in previous sections (especially, in section B.9).

12. Monitoring of Bank Transactions Law no 5/2002 on organised and economic and financial criminality establishes a specific investigative measure (applicable only to the offences listed in that law104) called ‘control of bank accounts’, which consists of the establishment of an obligation for the credit institution to communicate any operation performed on a determinate bank account to the judicial authority or criminal police body within the subsequent 24 hours. This measure shall be executed only when it is of ‘great relevance’ for the finding of the truth and is supposed to be carried out in a secretive way, especially vis-à-vis the persons who are targeted. The credit institutions have a duty to cooperate with the authorities who execute the measure105—the criminal police or the PP, with the authorisation or order of the judge.

13. Access to Relevant Premises (‘Crime Scene’) This is not a specific concept under Portuguese law. Rules on access to the crime scene can be found within the measure of examination of persons, objects and premises (CCP, 103 The suspension imposed by the freezing order ceases if it is not confirmed by a judicial authority within 48 hours from its execution (Art 4(5) Law no 5/2002). However, this norm makes no sense in this context, since the freezing of bank accounts cannot be executed without a specific order issued by a judge (Art 4(2)). Probably, it relates rather to the duty imposed on banks or financial institutions to refrain from executing a given operation when they suspect it can be connected with money laundering or financing of terrorism (Art 17 Law no 25/2008 of 5 June 2008 on the fight against money laundering and the financing of terrorism, which transposed Directive no 2005/60/CE of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [2005] OJ L309/15, and Directive no 2006/70/CE of 1 August 2006 laying down implementing measures for Directive 2005/60/EC as regards the definition of ‘politically exposed person’ and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis [2006] OJ L214/29). In that case, those entities have the duty to refrain from executing the suspected operation and to communicate the fact to the Attorney-General and to the Financial Information Unit; the Attorney-General may order the suspension of the operation, but it must be confirmed by a judge within two business days, or the order will otherwise cease. 104 See above, section A.5(a). 105 There is also a duty of communication, which, for financial institutions and the like, consists of informing the General Attorney’s Office as soon as they know or have reason to suspect that sums on their books are the proceeds of money laundering. In addition, those institutions also have the duty of assisting and cooperating with the competent judicial authorities (Law no 25/2008 of 5 June 2008 (see n 102)). According to Art 16(2), such information can only be used in the criminal procedure and the identity of the person who made the communication cannot be disclosed.

562 Portugal Articles 171 f), which aims at inspecting the vestiges or traces that a crime may have left. As soon as the information that a crime has been committed is received, the competent authorities (a judge, the PP or the criminal police106) must do everything within their power to avoid the traces of the crime being altered or destroyed before they can be examined—if necessary, prohibiting the entry, movement or any other disturbing action of any person at the crime scene.107

14. Tracking and Tracing of Objects and Persons In its majority, measures aiming at tracking and tracing objects and persons are not provided for in the Portuguese CCP or in any special procedural law. They are mostly governed by police directives, respecting basic human rights, and are performed under the authorisation of the National Directorate of the Criminal Investigation Department of the Judiciary Police. The CCP does however regulate the possibility of cellular location of a person, in Article 252-A: the judicial authorities or the criminal police108 can—regardless of a criminal procedure having been initiated—obtain the cellular location of a person when that is necessary to save the life or avoid serious physical harm to a person.109

15. Resorting to the Assistance of Experts110 (a) General Aspects An expertise is executed when the cognition and/or assessment of the facts being investigated require technical, scientific or artistic knowledge. This measure shall, preferably, be executed by experts from official establishments, services or laboratories.111 If this is not possible or convenient, it will be executed by experts designated from a list of experts of the respective legal district (comarca). If none of those options is possible, or is not possible in a timely manner, it will be executed by a person of recognised reputation and skills.

106 In case of imminent danger for the gathering of evidence the measure may be executed by any police body, which includes police bodies other than the criminal police. In any event, post factum validation is not required. 107 The law does not establish the rights of the persons nor of the owners of the objects or premises to be subjected to examination, but most authors agree that the rules on searches of persons and searches of premises (see above, section B.9) apply by analogy, including, when the crime scene is a home, the rules on searches of homes. 108 If the measure is executed by the PP or by the criminal police, post factum validation is required. 109 For this purpose, and according to Art 9(5) Law 32/2008 (see above section B.6), those authorities may request information on the cellular location of a person from the providers of publicly available electronic communications services or of public communications networks, and the otherwise strict conditions for the request do not apply. If there is no situation of risk to life or limb, the cellular location of a person may nevertheless be requested from those service providers, but only with respect to crimes that fall within the scope of Law 32/2008 and under the conditions required—the rules mentioned in section B.6 are, therefore, applicable. 110 CCP, Arts 151ff. 111 If the expertise is particularly complex or involves several types of skills, it can be executed by several experts, in a collegiate or interdisciplinary manner.

Investigative Measures 563 An expertise can either be requested or enacted ex officio by the PP112 (during the inquiry), by the investigative judge (during ‘bringing to judgment’) or by the trial judge (during trial). The judicial authority must be present in its execution whenever this is possible, and may allow the presence of the arguido and of the assistente, unless the expertise is likely to offend the modesty of the person(s) targeted. The PP, the arguido, the assistente and the civil party can designate a technical adviser (consultor técnico) of their trust to be present, as long as this does not cause the delay of the expertise or the normal progress of the procedure. If it deems it to be necessary, the judicial authority can, ex officio or at request, order the execution of the same or of a new expertise by a different expert(s). (b) Special Forms of this Measure Medico-legal and forensic expertise (perícia medico-legal e forense113) is a competence of the National Institute of Forensics (Instituto Nacional de Medicina Legal) and must, in principle, be executed by its delegations. The expertise on the personality of the arguido (perícia sobre a personalidade114) is executed by the services of social rehabilitation (Serviços de Reinserção Social) or, if this is not possible or convenient, by psychology, psychiatry, criminology or sociology experts. If the expertise focuses on physical or psychic characteristics, it must be executed by a physician or another person legally authorised, must not endanger the health of the person targeted and, if he/she does not consent, it must be ordered or authorised by a judge. A special form of this measure is governed by Law no 5/2008 of 12 February, which approved the establishment of a database of DNA profiles for purposes of civil and criminal identification.115 The competent bodies for executing this expertise are the Scientific Laboratory of the Judiciary Police (Laboratório Científico da Polícia Judiciária) and the National Institute of Forensics.116 Within the scope of Law no 36/94 (see above, section A.5(a)), the Department of Financial and Accountancy Expertise of the Judiciary Police (Departamento de Perícia Financeira e Contabilística) can deploy financial, accountancy, economic and banking expertise.117

112 According to CCP, Art 270(3), the PP can delegate on the criminal police the power to enact the execution of an expertise with respect to some types of offences (which the CCP, however, does not specify), in case of urgency or risk in delay—namely, when the expertise is to be executed together with an examination. However, this does not include the execution of autopsies. 113 Regulated in detail by Law no 45/2004 of 19 August 2004 (Legal regime of the medico-legal and forensic expertise). See also Decree-Law no 15/93 of 22 January 1993 on the combat on drugs (Arts 52 and 53). 114 This expertise aims at assessing his/her personality, dangerousness or degree of socialisation. 115 Portuguese law is not very clear in the regard of this profiling. On the one hand, it would seem that the samples may be collected from every individual who can be directly or indirectly connected with an offence, including witnesses and victims (Art 4(3)). On the other hand, the law only regulates the collection of samples from the arguido. Thus, it seems that, save for consent of the targeted persons, only the arguido can be coercively subject to this measure. This means that there must be already a formal procedure and, if the targeted person is a suspect, he/ she should be designated as arguido prior to the execution (Art 8(1)), so that he/she can exercise his/her rights. 116 Nevertheless, it can be executed by other Portuguese public laboratories, with the authorisation of the Minister who bears political responsibility over such laboratory and of the Minister of Justice. 117 Besides, both in financial and economic and in tax investigations, judicial authorities can request the assistance of technical advisers. However, this kind of assistance is quite different from the expertise, since the conclusions drawn by the expert constitute evidence and, moreover, in principle, cannot be freely assessed by the trial judge: the judge can disagree with those conclusions, but, if so, he/she must justify the disagreement (Art 163), which represents a deviation from the ‘principle of the free assessment of evidence’ established by CCP, Art 127.

564 Portugal 16. Controlled Deliveries This measure is governed by Article 160-A of the LICCM,118 according to which the PP119 can authorise the criminal police, on a case-by-case basis, to refrain120 from any action within the context of cross-border criminal investigations, for the purpose of establishing, in cooperation with one or more foreign states, the identity and criminal responsibility of the greatest possible number of perpetrators of an offence.121 This measure may be applied for offences that could give rise to extradition, with respect to any kinds of goods and money. The right to act and the direction of criminal operations are kept by the Portuguese authorities. The participation of foreign judicial and police authorities in actions that have to be carried out in Portuguese territory may be authorised by the Minister of Justice and is permitted exclusively by way of assistance to the competent Portuguese authority—whose presence and supervision are mandatory. The CCP’s provisions must be followed and conditions of reciprocity must be met. By agreement with the state of destination, prohibited substances or substances which are hazardous in transit may be partially replaced by inoffensive substances.

17. Infiltration This measure is currently governed by Law no 101/2001 of 25 August on infiltration for the purposes of criminal prevention and investigation.122 Under the conditions set by this law, agents of the criminal police or third parties acting under the supervision of the Judiciary Police can carry out actions under an undisclosed status and identity or, even, a false

118 This provision complies with the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the 1997 Convention on Mutual Assistance and Cooperation Between Customs Administrations and the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the EU. 119 The Portuguese member of Eurojust, in agreement with a competent national authority or at its request, and on a case-by-case basis, may also authorise and coordinate controlled deliveries (Art 9c(1)(d) of Council Decision 2002/187/JHA setting up Eurojust, as amended by Council Decision 2003/659/JHA and Council Decision 2009/426/ JHA of 16 December 2008 on the strengthening of Eurojust, and Art 8(4)(g) of Law no 36/2003 of 22 August 2003 on the implementation of the Council Decision 2002/187/JHA). In urgent cases, the Portuguese member, insofar as it is not possible for him/her to identify or contact the competent national authority in a timely manner, is entitled to authorise and coordinate controlled deliveries (Art 9d(b) Council Decision 2002/187/JHA and Art 8(4)(g) Law no 36/2003). The exercise of this competence must be communicated to the national authority as soon as possible. 120 Notwithstanding, the police will intervene if the safety margin reduces substantially or if circumstances arise that would make it more difficult to arrest the perpetrators or to seize the substances or property. In this case, the intervention does not have to be communicated in advance to the PP, but it must be communicated to them ex post facto, in writing, within 24 hours. 121 For this measure to be applied, foreign authorities must comply with the following conditions: ‘(i) provide the assurance that their legislation establishes adequate criminal sanctions and that the penal action will be pursued; (ii) guarantee the safety of the substances and property in question against the risk of flight and accidental loss; and (iii) give the undertaking that they will urgently communicate detailed information on the results of the operations and of the subsequent activities of the perpetrators of offences, in particular those who acted in Portugal. Failure to perform these obligations may result in future requests for authorisation being denied.’ 122 Infiltration was introduced in the Portuguese legal system in 1983 for the purpose of investigating drug trafficking (Art 52 Decree-Law no 430/83 of 13 December 1983 on combating drug trafficking), and was later extended to economic and financial criminality (Law no 36/94).

Investigative Measures 565 identity, for the purposes of preventing123 or investigating a quite wide group of offences.124 If this measure is performed under a false identity, the agent or third party may use this identity not only while performing a specific action, but generically, in any social event or for any legal purpose. Infiltration must be adequate to fulfilling the purposes of prevention or investigation and proportional to the gravity of the offence. This measure is executed at request of the Judiciary Police or the PP. Regarding investigative action, authorisation is granted by the PP. As to preventive action, authorisation is granted by an investigative judge at the Central Court for Criminal Investigation (Tribunal Central de Instrução Criminal), at the request of the Central Department for Investigation and Prosecution (Departamento Central de Investigação e Acção Penal—a department within the PP). In addition, according to LICCM, Article 160-B, law enforcement agents of other states may carry out infiltrated actions in Portugal, under the same conditions as the Portuguese, provided that a request is submitted pursuant to an international treaty or convention and that conditions of reciprocity are met. Yet, in Portuguese law, (legitimate) infiltration does not include the action of the so-called agent provocateur—someone who triggers the perpetration of an offence by another person, so as to arrest him/her immediately and prevent consummation of the offence or, at least, actual harm to the protected legal interest. 125 Although the procedural status of the evidence collected by undercover agents (or third parties) and their liability for participating in the perpetration of an offence are two separate issues, it is worth noting that, as Article 6(1) Law no 101/2001 explicitly states, while performing this measure, those subjects are not criminally liable for executing, in any form other than instigation (Anstiftung) or perpetration through another person (mittelbare

123

This means that infiltration can be executed even before a criminal procedure has been initiated. (a) Murder, if the perpetrator is unknown; (b) sex crimes punishable with over five years’ imprisonment, if the subject is unknown or the offence is committed against minors under 16 years old or against a disabled person; (c) trafficking in stolen vehicles; (d) slavery, kidnapping and taking of hostages; (e) terrorism or terrorist association; (f) capture or breach in the safety of air, sea, railway and road transport, involving the use of bombs, grenades or firearms, liable to imprisonment for a term of 8 years or more; (g) use of explosive substances or devices, nuclear, chemical or radioactive arms; (h) theft from credit institutions, public finance and mail services; (i) criminal association; (j) trafficking in narcotic drugs and psychotropic substances; (k) money laundering; (l) corruption, embezzlement, participation of a public official in business under his authority and influence peddling; (m) fraud in obtaining a grant or a subsidy; (n) economic and financial offences committed in an organised manner or with resort to computer technology; (o) international or transnational economic and financial offences; (p) counterfeiting of money, fiduciary securities and other values or circulating them; and (q) offences pertaining to the securities market. 125 Inducing someone to the commission of a crime in those circumstances falls under the concept of ‘treacherous means for gathering evidence’ (CCP, Art 126(2)(a)), and the evidence obtained is null. For a thorough review, see Costa Andrade (n 90) 231ff and S Aires de Sousa, ‘Agent provocateur e meios enganosos de prova: Algumas reflexões’ in M da Costa Andrade and others (eds), Liber discipulorum para Jorge de Figueiredo Dias (Coimbra, Coimbra Editora, 2003) 1207ff. Arguably, the inadmissibility of the evidence collected through the provocation to the commission of an offence by a state agent is so deeply embedded in the general principle of state compliance with the rule of law that it might enjoy (albeit implicit) constitutional rank. If so, evidence obtained abroad through those methods cannot be used in Portuguese courts, even if it is legal under the law of the requested state and was gathered in the ambit of a convention that provides for the legitimacy and admissibility of evidence collected in compliance with the law of the requested state (on the procedural status of evidence obtained in foreign legal systems, see below section C.3). 124

566 Portugal Täterschaft), preparatory acts126 or acts of execution of an offence (attempted offences127), as long as their action is proportionate to the aims of the measure.128 18. Surveillance (Acoustic and Visual) (a) In the Private Sphere Decree-Law no 35/2004 of 21 February allows certified and authorised security companies to proceed to the video and audio recording of premises, objects and persons, under certain conditions—namely, that the recording is clearly and publicly announced in the space being recorded (Article 13).129 The use of these recordings as evidence is controversial. Most authors agree that they are purely preventive and their use in criminal investigations depends on order or authorisation of a judge:130 they cannot be used loosely by the authorities or (much less) by the security companies to search and identify criminal actions and their perpetrators. (b) In the Public Sphere Law no 1/2005 of 10 January on the use, by the criminal police, of video-cameras in public places of common utilisation, aims at protecting public premises, facilities of relevance to the national defence or to the protection of persons and goods (either private or public), at preventing crimes in places where there is a reasonable risk that they may occur, and, finally, at preventing and punishing crimes connected with car traffic.131 This surveillance is also subject to the condition that it is clearly announced.132

126 Preparatory acts (actos preparatórios) are not punishable, except where the law states otherwise (CCP, Art 21 CC). 127 There is a criminal attempt (tentativa) when someone commits acts of execution of an offence that he/she has decided to commit but does not reach consummation (see CC, Arts 22 and 23). 128 Accordingly, it can be stated that the action of the agent provocateur—besides configuring a ‘treacherous means for gathering evidence’, with the consequence of evidence obtained thereby being null—is by definition unlawful, entailing criminal liability. See, in this sense, the ruling of the Appeal Court of Lisbon 29 November 2006 (Acórdão do Tribunal da Relação de Lisboa [TRL] processo 9060/2006-3 in www.dgsi.pt). 129 See also Law no 16/2004 of 11 March 2004 on the prevention and repression of violence in sport; Decree-Law no 101/2008 of 16 July 2008, which regulates the use of security systems in restaurants and night-clubs; Decree-Law no 139/2002 of 17 May, which regulates the production and storing of explosives; and Law no 33/2007 of 13 August, which regulates the installation of closed circuit TV systems in taxis. 130 M Ferreira Monte, ‘O registo de voz e de imagem no âmbito do combate à criminalidade organizada e económico-financeira’ in Centro de Estudos Judiciários (ed), Medidas de Combate à Criminalidade Organizada e Económico-Financeira (Coimbra, Coimbra Editora, 2004) 89. The National Commission on Data Protection controls the execution of this measure, under the conditions established by Law no 67/98 of 26 October 1998 on the protection of personal data. 131 There are also special regimes concerning car traffic or related incidents: see Decree-Law 207/2005 of 29 November 2005 and Law no 51/2006 of 29 August 2006 132 The member of the government that supervises the police body that requested the surveillance must keep a public record of all authorised installations of devices, of who requested it, of its finality, of its length and of the (binding) favourable opinions of the National Commission on Data Protection.

Prosecution Measures 567 (c) In the Context of Organised and Financial and Economic Criminality Law no 5/2002 on organised and financial and economic criminality introduced a new means for gathering evidence, ‘acoustic and visual recording’ (registo de som e imagem), which allows the recording of sound and image by any means and without the consent of the person targeted. This measure depends on prior authorisation (if requested by the criminal police or the PP) or order of the investigative judge and is performed by the criminal police. The rules of the CCP concerning the interception and recording of telecommunications apply.

C. PROSECUTION MEASURES

1. Unilateral Disposal of the Case (a) Decision Not to Open an Investigation As mentioned before, according to the principle of legality, the PP is bound to open proceedings whenever it obtains information (prima facie worthy of credit) that a crime has been committed, the sole exception being private crimes lato sensu, where a complaint is required. The CCP does not provide for a judicial remedy against the decision either to open or not to open proceedings. However, according to Articles 219(4) Constitution and 76(3) Statute of the PP (SPP), any decision taken by a public prosecutor is deemed to be subject to the ‘generic power of control’ held by his/her direct hierarchical superior, to whom any person affected by those decisions may complain,133 which might be seen as an ‘extraprocedural dimension’ of the power of control inherent to the hierarchy of the PP.134 Where the CCP does not explicitly provide for hierarchical complaint, the hierarchical superior will not be able to modify or revoke the decision of the subordinate, but he/she can order the subordinate to do so, and the latter is bound to comply, unless the order is illegal or ‘severely harmful to his/her conscience’.135 If the subordinate refuses to comply, the superior can take over the procedure and assign it to another prosecutor. (b) Decision to Close an Investigation As mentioned above, the PP must prosecute whenever there is sufficient evidence on the crime, the sole exception being private crimes stricto sensu, where private prosecution is required. Conversely, according to CCP, Article 277, the PP must file the inquiry (‘drop the case’): (a) as soon as it has gathered enough evidence that the alleged crime was not committed at all or that the arguido did not commit it; (b) if the maximum terms of the inquiry

133 In this sense, see J de Figueiredo Dias, ‘Autonomia do Ministério Público e seu dever de prestar contas à comunidade: um equilíbrio difícil’ (2007) 2 Revista Portuguesa de Ciência Criminal, Ano 17, 202. 134 Pinto de Albuquerque (n 63) 143. 135 SPP, Arts 76(3) and 79(2). However, when the hierarchical superior is the General Attorney, refusal is possible only if the order is illegal (SPP, Art 79(5)(b)).

568 Portugal have expired136 and, during its course, it has been unable to gather sufficient evidence that the crime occurred or of the identity of its perpetrator; or (c) if it concludes that the procedure is inadmissible.137 There are two remedies against the decision to prosecute or not to prosecute: (a) requesting the optional phase of ‘bringing to judgment’;138 or (b) resorting to hierarchical complaint.139 The submission of a hierarchical complaint does not preclude the possibility of requesting ‘bringing to judgment’, but such a request precludes the possibility of submitting a hierarchical complaint.

2. Multilateral Disposal of the Case (a) Diversionary Measures (i) Filing of the Procedure in Case of Possible Exemption from the Penalty At the end of the inquiry, the PP shall file the procedure, as long as the agreement of the investigative judge is secured, if it acknowledges the presence, in the case, of all the elements that could lead to a decision of exemption from the penalty later in the trial (arquivamento em caso de dispensa de pena—CCP, Article 280). According to CC, Article 74(1), the exemption is possible for offences punishable with imprisonment not exceeding six months or fine not exceeding 120 days, if: (i) the gravity of the facts and the blameworthiness of

136 The PP must close the inquiry, either by filing it or prosecuting, within the maximum terms prescribed by CCP, Art 276. If those terms are not met, the direct hierarchical superior of the prosecutor who is formally seised of the case may take over the procedure and, in any event, must communicate the lack of compliance with those terms to the General Attorney, who can enact, ex officio or at request of the arguido or of the assistente, the ‘acceleration of the procedure’ (mecanismo de aceleração processual, CCP, Arts 108 and 109). 137 According to Pinto de Albuquerque (n 63) 715ff, the procedure is inadmissible if one of the following circumstances occur: (1) international or constitutional immunity (Arts 130, 157 and 196 Constitution); (2) lack of condition on which a state had based its agreement to extradite the arguido to Portugal; (3) extradition, surrender or transfer of a sentenced person to Portugal in violation of international law; (4) incompetence of the PP (CCP, Art 266) or of the Court (CCP, Arts 32 and 33); (5) lack of judicial capacity or death of the arguido (CC, Art 127(1)) (in case of extinction of a legal person its patrimony will be used to pay the civil damages and/or fines for which it is responsible); (6) lack of locus standi of other subjects—namely, the assistente (eg as a consequence of the extinction/waiver of the complaint, in private crimes lato sensu, or of the private prosecution, in private crimes stricto sensu) or of the PP (eg as a consequence of the lack of complaint, in private crimes lato sensu, or of private prosecution, in private crimes stricto sensu); (7) use of undue form of proceedings (common or special); (8) res judicata (Art 29(5) Constitution) and pendency (lis pendens); (9) statutory limitation of the criminal procedure (CC, Arts 118ff); and (10) amnesty (CC, Art 127(1)). 138 Both the arguido and the assistente, depending on the decision that has been taken by the PP, can request ‘bringing to judgment’. See above, section A.2(b)). 139 Within 20 days from the date when ‘bringing to judgment’ can no longer be requested, both the arguido and the assistente—or the person who is entitled to be (but who has not yet been) designated as assistente—can resort to hierarchical complaint, albeit under different circumstances: (a) if the PP has decided not to prosecute, the hierarchical superior of the prosecutor who took the decision can—ex officio or at request of the assistente— enact the prosecution of the arguido or the continuation of the investigation (CCP, Art 278); (b) if the PP has decided to prosecute, the arguido can resort to hierarchical complaint solely under the conditions of the generic (‘extra-procedural’) power of control inherent to the hierarchy of the PP. In this case, the hierarchical superior can also file the inquiry in case of possible exemption from the penalty or—if the investigations were closed not as a consequence of the application of one of those diversionary measures, but of a filing sensu proprio—proceed to the provisional suspension of the procedure.

Prosecution Measures 569 the arguido are low; (ii) the victim has been compensated for the damage; and (iii) the exemption does not compromise the purposes of prevention.140 If the arguido has already been prosecuted and ‘bringing to judgment’ has been requested, the investigative judge shall file the inquiry if he/she acknowledges the presence of those elements, as long as the agreement of the PP and of the arguido is secured. (ii) Provisional Suspension of the Procedure At the end of the inquiry, the PP shall proceed to a provisional suspension of the procedure (suspensão provisória do processo), ex officio or at the request of the arguido or of the assistente, if the agreement of the investigative judge, the arguido and the assistente is secured and the other conditions prescribed by CCP, Articles 281 and 282 are met, ie, if the offence is punishable with imprisonment not exceeding five years or a sanction other than imprisonment, and: (i) both the arguido and the assistente agree with the suspension; (ii) the arguido has never been convicted for a crime of the same nature; (iii) the suspension has never been applied to the arguido for a crime of the same nature; (iv) it is not a case for the application of a security measure of internment in a mental institution (lack of accountability); (v) the blameworthiness of the arguido is low; and (vi) the fulfilment of the injunctions and rules by the arguido is deemed sufficient to accomplish the purposes of prevention.141 The suspension has, in principle, a maximum term of two years, during which the arguido shall comply with certain injunctions and rules—which may include, eg, the reparation of the damage caused to the victim, as well as appropriate moral satisfaction. If, on expiry of such term, the arguido has fulfilled those duties and, in the meantime, did not commit any crime of the same nature, the PP files the inquiry, which cannot be reopened. (iii) Penal Mediation During the inquiry, the PP may determine, either ex officio or at request of the arguido or of the assistente, and if both of them give their consent, that the case be submitted to penal mediation (mediação penal), introduced into the Portuguese procedural system by Law no 21/2007 of 12 June.142

140 An exemption from the penalty shall also take place (and, accordingly, the procedure may in principle be filed) where, regardless of the conditions set in CC, Art 74(1) being met, there is a provision establishing that, as long as certain (other) conditions occur, it shall take place—eg CC, Arts 374-B(1) and 186(1) (although, in the case of the latter, a filing of the procedure could never be enacted, since the conditions established therein for the exemption presuppose that the case has reached the trial stage). Besides, according to CC, Art 74(3), an exemption from the penalty is also possible (and, accordingly, the procedure may in principle be filed) where there is a provision establishing that, if certain conditions occur, it may take place; however, in this case, the general conditions prescribed in CC, Art 74(1) must also be met—see eg CC, Arts 186(2), 278-B(1), 286, 294(3) and 364. 141 Concerning less serious crimes of domestic violence, if the victim requests, in a free and informed manner, the provisional suspension of the procedure, the conditions indicated in items (ii) and (iii) above suffice for the PP to enact it, as long as the agreement of both the investigative judge and the arguido is secured. In the case of less serious sex crimes against minors, if the conditions indicated in items (ii) and (iii) apply, the PP, taking into account the best interest of the minor, can enact the provisional suspension of the procedure, as long as the agreement of both the investigative judge and of the arguido is secured. 142 On mediation, see, in general, J de Faria Costa, ‘Diversão (desjudiciarização) e mediação: que rumos?’ (1985) Boletim da Faculdade de Direito, Ano 61, 91ff; on the new statute, see C Cruz Santos, ‘A Mediação penal, a justiça restaurativa e o sistema criminal—algumas reflexões suscitadas pelo anteprojecto que introduz a mediação penal

570 Portugal Penal mediation is possible both for public and private crimes lato sensu (but, as to semi-public crimes, only with respect to offences against the individual or against property). Regardless of the nature of the crime, penal mediation is not possible if: (a) the crime is punishable with imprisonment exceeding five years; (b) the object of the procedure is a sex crime, a crime of peculation, corruption or influence peddling; (c) the victim is a minor under 16 years old; or (d) the special forms of proceedings of processo sumário or processo sumaríssimo are applicable. The PP may determine that the case be submitted to penal mediation at any time of the procedure, but only after, and if, it has gathered sufficient evidence that the crime was committed by the arguido, and if it considers penal mediation to be adequate to fulfilling the purposes of prevention. These conditions, however, do not apply when the submission of the case to penal mediation is requested by the arguido or by the victim and the agreement of both is secured. (b) Remedies Against the Decision to Apply or Not to Apply Diversionary Measures (i) Decision to Apply Those Measures The PP’s decision to file the procedure in case of possible exemption from the penalty (in the inquiry) does not give rise to judicial review and, specifically, cannot be a grounds for requesting ‘bringing to judgment’, but the assistente can resort to hierarchical complaint under the conditions of the generic (‘extra-procedural’) power of control inherent to the hierarchy of the PP.143 It is also possible to resort to hierarchical complaint against the agreement of the PP with the decision of the investigative judge to apply this measure (in ‘bringing to judgment’). The CCP explicitly states that there is no judicial remedy against the decision to apply this measure, provided that the legal conditions required by the CCP are present.144 However, the assistente can challenge on appeal the decision of the investigative judge that agrees with the proposal of the PP (during the inquiry) or that actually files the procedure (during ‘bringing to judgment’, with the agreement of the PP), on the grounds that the legal conditions for the application of the measure are not met.145 The precedent paragraph applies, mutatis mutandis, to the provisional suspension of the procedure. Law no 21/2007 establishes no remedy against the decision to submit the case to penal mediation, which is quite logical, since this decision requires the agreement of both the arguido and the assistente, any of whom may revoke it at any time, and, in this case—as well as in the case where they are unable to reach an agreement—, the procedure will follow its normal course. Thus, mediation cannot take place against the will of any of those subjects and it is very unlikely that it bears consequences that any of them would have an interest in reacting against. “de adultos” em Portugal’, (2006) 1 Revista Portuguesa de Ciência Criminal, Ano 16, 85; A Miranda Rodrigues, ‘A propósito da introdução do regime de mediação no processo penal’ (2006) 105 Revista do Ministério Público, Ano 27, 129; A Lamas Leite, A Mediação Penal de Adultos: Um Novo ‘Paradigma’ de Justiça? Análise Crítica da Lei no 21/2007, de 13 de Junho (Coimbra, Coimbra Editora, 2008). 143

See above section C.1. See above, section C.2(a). 145 As ruled by the Court of Appeal of Oporto, 31 March 2004 (Acórdão TRP processo 0343893 in www.dgsi.pt) and propounded, in legal literature, by Marques da Silva (n 17) 123. 144

Prosecution Measures 571 (ii) Decision Not to Apply Those Measures The CCP does not establish any remedy against the decision not to file the procedure in case of possible exemption from the penalty. However, as mentioned before, although this is a diversionary measure, it does not constitute a discretionary power of the judicial authority; on the contrary, if its conditions are met, the PP or the investigative judge have the duty to apply it. Thus, when, despite those conditions being met: —

the investigative judge decides not to agree with the proposal of the PP (in the inquiry) or not to apply the measure (in ‘bringing to judgment’), the arguido can appeal the decision; — the PP decides not to apply the measure (in the inquiry), the arguido can (CCP, Article 287(2)) resort to hierarchical complaint,146 or after, and if, the PP decides to prosecute, request ‘bringing to judgment’, on the basis that the indictment should not have been uttered.147 The precedent paragraph applies, mutatis mutandis, to the provisional suspension of the procedure. The same applies to the decision of the PP not to submit the case to penal mediation. 3. Reopening of the Case (a) Decision to Reopen or not to Reopen a Case and Remedy Against that Decision Within 20 days from the date when ‘bringing to judgment’ can no longer be requested, the direct hierarchical superior of the prosecutor who has decided to file the inquiry can, ex officio or at the request of the assistente or of the person entitled to be (but who has not yet been) designated as assistente, enact the reopening of investigations (CCP, Article 278(1)). If so, he/she must indicate the measures that are to be undertaken and set a term for their undertaking. Once the said term expires, the procedure can only be reopened if, meanwhile, new evidence arises that contradicts the PP’s decision to file the inquiry (CCP, Article 279(1)). The arguido and the assistente or person entitled to be designated as assistente can resort to hierarchical complaint of the decision to reopen or not to reopen the inquiry (CCP, Article 279(2)), but not to judicial review.148 (b) Decision to Reopen or not to Reopen a Case Closed Following the Application of a Diversionary Measure and Remedies Against that Decision When the PP decides to file the inquiry in cases that could lead to an exemption from the penalty later in trial149 or to file the inquiry as a result of a provisional suspension of the

146

See above section C.1. In this sense, see Caeiro (n 46) 42. However, if, at the end of ‘bringing to judgment’, the PP still considers that those measures should not be applied, the investigative judge cannot rule otherwise, given the lack of an essential condition (the agreement of the PP) (ibid, 43). 148 Court of Appeal of Oporto, 2 November 2005 (Acórdão TRP processo 0541293 in www.dgsi.pt). 149 If this measure is enacted, not by the PP in the inquiry, but by the investigative judge in ‘bringing to judgment’, the decision can be appealed under the conditions mentioned above, section C.2(b)). 147

572 Portugal procedure,150 the case cannot be reopened under the same conditions as the filing sensu proprio.151 As mentioned, if the arguido and/or the assistente revoke their agreement on the decision to submit the case to penal mediation or are unable to reach an understanding, the case will follow the traditional procedure and, in principle, the PP will prosecute the arguido.152

4. Committing the Case to Trial and Presenting the Case in Court (a) Committing the Case to Trial The PP’s (or, as the case may be, the private prosecutor’s) decision to prosecute represents, virtually, the commitment of the case to trial. If, however, the optional phase of ‘bringing to judgment’ is requested—which happens more often than not—, committing the case to trial is a competence of the investigative judge. (b) Presenting the Case in Court Besides directing the inquiry and prosecuting, the PP is the authority competent for upholding the indictment both in ‘bringing to judgment’ (if requested) and in trial.153 This is an exclusive competence: no other public entity, in any circumstance, may present the case instead of the PP.154 150 In fact, the provisional suspension of the procedure does not correspond to a filing of the case itself. If, during the suspension, the arguido does not fulfil the duties imposed upon him/her, or commits a crime of the same nature, the suspension will not give place to a filing. From then on, the PP either files the inquiry (which is not very likely)—and, if so, the general rules on the reopening of the case apply (section C.3(a))—or prosecutes the arguido. Only if the period of suspension expires and the arguido has fulfilled his/her duties will the PP file the procedure. 151 The difference lies on the circumstance that in the filing sensu proprio the decision of the PP is unilateral, whereas the filing resulting from those diversionary measures entails a ‘voluntary composition of interests between several subjects of the procedure’, which therefore demands trust on the definitiveness of the decision (Pinto de Albuquerque (n 64) 726). This understanding has long been propounded in legal literature, by J Souto de Moura, ‘Notas sobre o objecto do processo (A pronúncia e a alteração substancial dos factos)’ (1991) 48 Revista do Ministério Público, Ano 12, 43ff. In this sense, see the decision of the Court of Appeal of Oporto 3 July 2003 (Acórdão TRP processo 0312336 in www.dgsi.pt), in line with joined cases C-187 and 385/01 Hüseyin Gözütok and Klaus Brügge [2003] OJ C212 and OJ C348 in www.eur-lex.europa.eu. 152 The decision to submit the case to penal mediation presupposes that the PP has gathered ‘sufficient evidence’ that the crime has been committed by the arguido, and the gathering of such ‘sufficient evidence’ imposes on the PP the duty to prosecute. Hence, when penal mediation does not come to a successful conclusion, the arguido will, in principle, be prosecuted. There are, however, exceptions: (1) the case where the crime depends on private prosecution and the assistente waives the right to prosecute; (2) the case where the PP decides, not to prosecute nor to file the inquiry (sensu proprio), but to apply one of those other diversionary measures—in this case, the rules mentioned above apply. 153 The PP is represented by different magistrates (in Portugal, members of the PP are magistrates, although not ‘judicial magistrates’) in the different stages of the procedure: inquiry, ‘bringing to judgment’ (if requested), trial and appeal (if submitted). All those magistrates may diverge from the positions upheld by their fellow magistrates in the previous phases. For instance, the magistrate that intervenes in the trial may diverge from the positions upheld by his fellow magistrates in the preliminary phases and—as consequence of the principle of objectivity that guides the functions of the PP—shall plead for the acquittal of the arguido if he/she finds, at the end of the trial, that there are no grounds for conviction. 154 As mentioned before (above, section A.5(b)), the tax administration and social security bodies provide technical assistance to the PP during all the phases of the procedure, including trial (and, if that is the case, can testify as witnesses), but do not, under any circumstances, represent the case for prosecution.

Evidence 573 Furthermore, the PP upholds the case for prosecution irrespective of whether the crime is a public crime or a private crime lato sensu.155 In any of those cases, if a person (usually, the victim) has been formally designated as assistente,156 this person can intervene in the trial, assisted by a lawyer (CCP, Article 70(3)), but acting as a mere ‘collaborator’ of the PP and ‘subordinating’ his/her procedural activity to the activity of the PP (CCP, Article 69(1)). The sole particularity is that when the crime depends on private prosecution (private crime stricto sensu), the presence of the lawyer of the assistente in the main hearing of the trial is mandatory. In the phase of trial, the assistente has, namely, the rights to: (i) participate in the main hearing; (ii) make allegations at the end of the hearing, through his/her lawyer; (iii) pronounce him/herself about evidence; (iv) present witnesses; (v) request that the court puts concrete questions to the arguido, the civil parties, witnesses under the age of 16 years old, experts and technical advisers and other persons; and, most relevantly, to (vi) question directly the witnesses that he/she has enrolled and the witnesses enrolled by the arguido (which correspond, respectively, to the Anglo-American ‘examination-in-chief ’ and ‘crossexamination’).157 D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence The Portuguese procedural system follows a mixed or ‘centrifugal’ approach that might be considered close to the theory of the ‘fruit of the poisonous tree’ or to the German Fernwirkung, but that takes into account ‘topics such as the dangerousness of the “poison”, the importance of the “fruit” within the global context of the evidence, and the normative link between the fruit and the “poisonous tree’’’.158 (a) Consequences of Illegal or Improper Obtaining of Evidence Article 33(8) of the Constitution establishes that evidence obtained through torture, coercion, physical or psychological harm and abusive intrusion in the private life, domicile, mail or telecommunications of a person159 is null. The CCP has concretised this constitutional provision by establishing specific procedural consequences for illegally or improperly obtained evidence.

155 There is, however, a difference: contrary to what happens in the case of public and semi-public crimes, in the case of private crimes stricto sensu it is possible that the case reaches trial without the PP having gathered ‘sufficient evidence’ on the crime and, consequently, without having adhered to the private prosecution. In this event, in principle, the prosecutor who intervenes in trial will adopt a passive attitude or an active attitude but towards the acquittal of the arguido, and the assistente will be ‘alone’ in seeking the conviction of the arguido. But the same may happen (although it is more unlikely) in case of public and semi-public crimes, as a consequence of the mentioned principle of objectivity that guides the activity of the PP (see above, section A.2(a)); n 152). 156 It is worth recalling that the concept of assistente does not correspond to the concept of ‘private prosecutor’, and that a person can bear the status of assistente both in public and private crimes. 157 Cf respectively: (i) CCP, Art 346; (ii) CCP, Arts 360(1) and 371(4); (iii) CCP, Art 327; (iv) CCP, Art 316(1); (v) CCP, Arts 345(2), 347(1), 349, 350(1) and 371(3); (vi) CCP, Art 348. 158 Costa Andrade (n 90) 63. 159 This includes not only the arguido, the witness and the expert, but also the assistente, the civil parties and the interpreter. In this sense, see Pinto de Albuquerque (n 63) 318.

574 Portugal According to CCP, Article 126(1), evidence obtained through torture, coercion or, in general, through physical or psychological harm to a person is null and cannot be used; consent is immaterial. This configures an absolute nullity. CCP, Article 126(2) goes on to specify that is deemed to be ‘harmful’ the obtaining of evidence through the following means:160 (a) intervention in the free will of the individual through maltreatment, physical harm, administration of means of any nature, hypnosis or use of cruel or deceptive means; (b) perturbation, by any means, of the capacity of memory or of understanding of the individual; (c) use of force beyond the cases and limits in which the law allows it; (d) threatening the individual with the execution of a legally inadmissible measure or with the denegation or conditioning of a legally guaranteed benefit; or (e) promising a legally inadmissible benefit. Differently, CCP, Article 126(3) establishes that, except where the law rules otherwise, evidence obtained through intrusion, without the consent of the person concerned, in his/ her private life, domicile, mail or telecommunications is also null. The first difference that must be noted is the fact that the person concerned may consent on the intrusion, either ex ante or ex post facto, and, if so, the nullity will be cured161—hence, this configures a (merely) relative nullity. Besides, whereas the nullity established by CCP, Articles 126(1) and (2) bears no exceptions, CCP, Article 126(3) excepts cases ‘where the law rules otherwise’, which is a clear reference to the intrusive investigative measures allowed and regulated by the CCP in Articles 171f, as well as by other special legal instruments of criminal procedure. These nullities can be declared, ex officio or at request, at any time of the procedure.162 They can be declared whether or not the court has already used the evidence to which they relate.163 Any sentence or dispatch (eg, of applying a coercive measure) will be null if it was based (even if not solely or, even, predominantly) on evidence that has been declared null.164 According to CCP, Article 122(1), nullity causes the invalidity of the act in which it occurs, as well as of those that depend on (and may be affected by) it. This provision points towards the adoption, by the CCP, of the theory of the ‘fruits of the poisonous tree’. Yet, the Constitutional Court has ruled165 that illegally or improperly obtained evidence only ‘contaminates’ other evidence to which it is connected in accordance with a ‘chronological,

160 Given the constitutional nature of the interests protected, it is consensual that this is not a numerus clausus list, but an exemplificative list open to analogical application: Costa Andrade (n 90) 316. 161 In this sense see eg Costa Andrade (n 90) 88; Pinto de Albuquerque (n 63) 319; JJ Gomes Canotilho, V Moreira, Constituição da República Portuguesa Anotada: Artigos 1o a 107o, 4th edn (Coimbra, Coimbra Editora, 2007) note XV - Art 32. Indeed, this construction seems to adjust better to the jurisprudence of the ECtHR, which has drawn a distinction between the cases (of offences to the integrity of the person) where the nullity shall be absolute, and the cases (of intrusion in the private life of the person) where relevant consent can cure the nullity. However, for a different interpretation, see Marques da Silva (n 88) 143; M Lopes Maia Gonçalves, Código de Processo Penal Anotado e Legislação Complementar, 17th edn (Coimbra, Almedina, 2009) 295. 162 If, in the final decision of ‘bringing to judgment’, the investigative judge rules that a certain investigative act has been undertaken (during that phase or during the inquiry) in an illegal or improper manner and, as a consequence, declares it null, this matter is deemed res judicata and the decision cannot be appealed from; but if the judge rules that a certain act is valid or, in any case, does not declare it null, the trial judge might still, ultimately, declare it null (CCP, Art 310). If the nullity concerns an act executed during the phase of trial, the trial judge may declare it null at any time. Furthermore, even after the sentence becomes final, these nullities can, at any time, give rise to the extraordinary appeal for review of sentence (CCP, Art 449(1)(e)). 163 In this sense, Pinto de Albuquerque (n 63) 320. 164 In this sense, Costa Andrade (n 90) 64. 165 Constitutional Court 24 March 2004 Decision (Acórdão TC 198/2004 in www.tribunalconstitucional.pt).

Evidence 575 logical and valorative link’,166 and the same understanding has been propounded (even for longer) in the literature.167 According to this doctrine, the more serious the illegality or impropriety has been, the higher the ‘contagious effect’ will be; and it will be lower, or even inexistent, if it is possible to conciliate the scope of the procedural rule that has been violated with the use of the evidence that has been mediately obtained.168 If the illegality or impropriety has resulted in the consummation of a crime, the evidence that has been obtained can be used with the exclusive purpose of prosecuting those who have proceeded in such a manner (CCP, Article 126(4)). (b) Consequences of the Violation or Non-observance of Procedural Rules The violation or non-observance of procedural rules is regulated in CCP, Articles 118f. This regime is not affected by the specific rules on the illegal or improper obtaining of evidence, dealt with above, but it is subsidiarily applicable to any violation or non-observance of the procedural law, including the former. Hence, the following information completes the characterisation of the status of illegally or improperly obtained evidence in the Portuguese legal system: violation or non-observance of procedural rules carries a nullity only where such a consequence is explicitly stated by the law, and it can be curable or incurable. Where the law does not establish a nullity, the consequence is irregularity. There is an incurable nullity (nulidade insanável) only where the law explicitly states so and in the cases enumerated in CCP, Article 119.169 These nullities can be declared ex officio, at any time of the procedure. All other nullities, including those that are listed in CCP, Article 120(2), are curable (nulidades sanáveis).170 These nullities must be argued by the person(s) who has/have an interest in the annulment of the act.

166

As summarised by Pinto de Albuquerque (n 63) 321. Eg by Costa Andrade (n 90) 63 and 314ff; J da Costa Pimenta, Código de Processo Penal Anotado, 2nd edn (Lisbon, Rei dos Livros, 1991) 378–79. Regretting this trend, see Marques da Silva (n 88) 146. 168 In this sense, see the rulings of the Constitutional Court 2 March 1994 (Acórdão TC 213/94 in www.tribunalconstitucional.pt), of the Appeal Court of Oporto 29 January 2003 (Acórdão TRP, processo 0210993 in www. dgsi.pt) and of the Appeal Court of Lisbon 23 June 2004 (Acórdão TRL processo 8950/03 ibid); and, more recently, the rulings of the Supreme Court of Justice 31 January 2008 (Acórdão STJ processo 4805/07 ibid) and 20 February 2008 (Acórdão STJ processo 226/08 ibid). This jurisprudential drift away from the theory of the ‘fruits of the poisonous tree’ has been summarised by J Henriques Gomes de Sousa, ‘Das nulidades à “fruit of the poisonous tree doctrine”’ [2006] 2 Revista da Ordem dos Advogados, Ano 66, 729ff, in the following exceptions to the rule: (1) ‘Independent source exception’, which deems admissible the evidence that has or might have been obtained in an alternative, autonomous and licit manner; (2) ‘Inevitable discovery exception’, which deems admissible the evidence that, later, would have been inevitably discovered, as a result of another investigation; and (3) ‘Cleaned or purged taint exception’, which deems admissible the evidence that is sufficiently autonomous in relation to the (illegally/improperly obtained) evidence from which it was obtained (namely, the ulterior confession of the arguido). 169 Besides the list in CCP, Art 119, the CCP sanctions with incurable nullity the violation of only two other provisions: Art 321, which sets the rule of the publicity of the trial hearing, and Art 330, according to which the judge must order the replacement of the PP or of the defence lawyer if they are not present at the beginning of the trial hearing. 170 Except where the law states otherwise, these nullities can be cured if the person who has an interest in the annulment of the act: (1) expressly waives the right to invoke it; (2) expressly accepts the effects of the null act; or (3) has exercised a faculty that the null act aimed at (eg if the arguido has appealed from a decision that he/she had not been notified of); (4) if the nullity concerns the lack or the impropriety of a notification or convening to a procedural act, it will be cured if the person concerned attends the act (except if the attendance has the sole purpose of arguing the nullity) or expressly waives the right to attend it. 167

576 Portugal In case of irregularity (irregularidade), the irregular act, and subsequent acts that might be affected by it, will only be invalid if the person concerned argues the irregularity during their execution or, if he/she was not present, within three days of being notified to any term of the procedure or of having participated in any procedural act (CCP, Article 123(1)). If the irregularity is likely to affect the validity of the act in which it occurs, the judicial authority can order that it be cured, even ex officio, as soon as it is known to him/her. (c) Aspects Common to All Nullities—Incurable Nullities, Curable Nullities that Have Not Been Cured and Absolute and Relative Nullities According to CCP, Article 122(1), nullity carries as a consequence the invalidity of the act in which it occurs, as well as of those that depend on it and that may be affected by it.171 The declaration of nullity defines the acts that shall be considered invalid and orders, whenever this is possible, their repetition. When declaring a nullity, the judge shall preserve any act that can still be saved. Nullity can give rise to judicial review, in accordance with CCP, Article 410(3).

2. Admissibility of Written Reports The procedural acts that the law requires to be documented,172 as well as statements, requests, promotions and decisions orally uttered, must be recorded in a written document called auto.173 If a judge, public prosecutor, or police agent is present at the crime scene when the crime is committed, he/she has the duty to draw up a record, called auto de notícia, in which the situation is described and the infringements of the law are listed.174 As to its admissibility as evidence, the CCP establishes an equivalency between the auto and authentic or authenticated documents; consequently, the facts reported in an auto or auto de notícia are deemed to be proved, as long as the veracity of the document is not justifiably brought into question. In any event, an auto or auto de notícia cannot prove, alone, the perpetration of a crime.

3. Status of Evidence Obtained in Other Member States of the EU CCP, Article 125 establishes that all kinds of evidence not prohibited by the law are admissible. This provision encompasses the possibility of using, in criminal procedures taking place in Portugal, evidence obtained in foreign legal systems, including in another MS. However, evidence obtained by foreign authorities through means deemed illegal 171 172 173

However, the reasoning mentioned in section D.1 applies. Cf CCP, Arts 99, 169 and 243. The auto of the trial main hearing and of the debate that takes place in ‘bringing to judgment’ is called

acta. 174 The auto de notícia serves as a denunciation in case of public crimes, and as a complaint in case of semi-public and private crimes, when the authority that has drawn it has the right to complain or to private prosecution.

The Rights of the Arguido During Investigation and Prosecution 577 or improper by the Portuguese law is null and cannot be used in Portuguese criminal procedure, except where an international convention or treaty binding on the Portuguese State explicitly provides for the legitimacy of evidence obtained in accordance with the law of the requested state. The ‘exceptions to the exception’ are the few constitutional rules on the gathering of evidence, which, unlike common legislation, are not superseded by international conventions.175

E. THE RIGHTS OF THE ARGUIDO DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence The principle of presumption of innocence is recognised in the Portuguese legal system and it enjoys constitutional dignity: Article 32(2) Constitution statues that any arguido shall be presumed innocent until a decision of conviction becomes final—ie, until it is no longer open to ordinary appeal. The consequences of this principle are not restricted to a specific or, even, to an ascertainable set of procedural moments, but indeed transversal to the procedural system176 and applicable during all the phases of the procedure.177 A major refraction of this principle is the fact that, in dubious cases, the judge must rule favourably to the arguido—in dubio pro reo.178

2. The Right to Assistance The CCP (Articles 61 f 179) provides for a broad right to legal assistance. The arguido has the right to hire a defence lawyer of his/her own choice or to request that a lawyer be appointed to him/her at any time of the procedure. Furthermore, the arguido has the right to be assisted by a lawyer in any procedural act in which he/she participates and, if arrested, to communicate with him/her—if necessary, in private. The arguido may appoint more than

175 The obtaining of evidence from another Member State is governed by Law no 25/2009 of 5 June, which transposed into the Portuguese legal system the Council FD 2003/577/JHA of 22 July 2003 on the execution in the EU of orders freezing property or evidence, and according to which the Portuguese state may request (and be requested by) another Member State to execute orders freezing evidence. In those cases, it is advisable that the prosecution requests to the foreign authorities that the conditions set by Portuguese law be respected (eg only a ‘judicial authority’ may order a home search: Art 34(2) Constitution; in the absence of such authorisation, the evidence collected is null and void). 176 Including the organisation and functioning of the courts and rules on remand. See J Souto de Moura, ‘A questão da presunção de inocência do arguido’ (1990) 42 Revista do Ministério Público, Ano 11, 31ff. 177 This principle entails some important consequences, namely, the postulate that the arguido must have a full right of defence, including the right to remain silent. 178 In dubio pro reo applies only to doubts concerning ‘matter of fact’. Doubts concerning ‘matter of law’ are not to be decided according to the interpretation that is more favourable to the arguido, but to the one that the judge deems the most accurate. See Figueiredo Dias (n 3) 215. The non application or deficient application of this principle can be challenged on appeal before the Supreme Court, notwithstanding its competence being restricted to ‘matter of law’, since this is a general principle of (criminal procedural) law (id 217). This understanding has been upheld by the Supreme Court itself: eg Supreme Court 6 April 1994 (Acórdão STJ processo 46092 in www.dgsi.pt), but is far from being unequivocal (on that controversy, with further references, see Acórdão TRL de 23 February 2009 processo 263/2006, note 27 ibid). 179 These norms of the CCP materialise constitutional provisions (CCP, Arts 20 and 32(3)), as well as international law binding on the Portuguese state (specifically Art 6o § 3o (c) ECHR and Art 14o § 3o (d) ICCPR).

578 Portugal one lawyer for the same procedure. In the case where there are several arguidos in the same procedure, they may be assisted by the same lawyer, provided that this does not hamper on the effectiveness of the defence. The absence of the defence lawyer in procedural acts for which legal assistance is mandatory (see CCP, Article 64) causes an incurable nullity (CCP, Article 119(c)), and failure to inform the arguido about his/her right to legal assistance carries as a consequence the prohibition of using any statement that he/she may have made as evidence (CCP, Article 58(5)180). If the arguido cannot bear the costs of legal assistance, he/she has the right to be appointed a defence lawyer at no cost. This matter is further regulated by Law no 34/2004 of 29 July on access to law and to the courts.181 The framework drawn by that instrument engrains two basic ideas: (1) the state shall bear the costs of legal assistance when the arguido is in a situation of financial hardship, as well as when, regardless of hardship, the arguido who has chosen to be assisted by a defence lawyer appointed by the state is ultimately acquitted; (2) an arguido who seeks to receive this support without being eligible shall be (economically) penalised for that behaviour. CCP, Article 91 assigns the arguido—as well as any other person who participates in the procedure—the right to be assisted by an interpreter, if necessary appointed by the authorities, even if the authorities or any of the subjects of the procedure speaks or knows his/her language. Moreover, the arguido may choose to be assisted by a different interpreter for the purpose of translating his/her conversations with his/her defence lawyer. In both cases, the state shall bear the costs. An interpreter shall be appointed whenever it is necessary to make written translations of documents written in a foreign language and unaccompanied by authenticated translation. The interpreter is obliged to secrecy—both to the so-called ‘secrecy of justice’, which protects the contents of the procedure (when applicable), and to professional secrecy. If that obligation is violated, the statements of the arguido cannot be used as evidence (curable nullity). Failure to appoint an interpreter or unlawful appointment of an interpreter is also sanctioned with a curable nullity.

3. The (Absence of a) Right to Undertake Investigative Measures Unlike Anglo-American procedural systems, the Portuguese system does not impose on the defence the burden of proving the circumstances that may constitute defences. Therefore, consistently with the principle of objectivity by which the PP must abide, the task of investigating (à charge et à décharge) is assigned, exclusively, to public authorities.182 180 According to Costa Andrade (n 90) 89, the sanction prescribed by CCP, Art 58(5) configures a curable nullity. 181 Law 34/2004 transposed Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L26/41. 182 A significant part of Portuguese legal literature, though not quite opposing this understanding de iure condito, sustains that a different approach should be adopted, de iure condendo, towards the legal recognition of the right of the defence to undertake autonomous investigations. This position has been upheld, for long, by Marques da Silva, (n 15) 235ff. Identical opinions have also been propounded by other authors: see eg Á Gomes Rodrigues, ‘Controlo garantístico dos direitos do arguido pelo juiz de Instrução’ [1999] 13 Direito e Justiça: Revista da Faculdade de Direito da Universidade Católica do Porto 184.

The Rights of the Arguido During Investigation and Prosecution 579 The defence may—but may only—request to the authorities the execution of investigative measures (see the following section).

4. The Right to Request the Undertaking of Investigative Measures The arguido has the right to intervene in the preliminary stages of the procedure, presenting evidence and requesting the undertaking of investigative measures to the authorities (CCP, Article 61(1)(g)). There are no restrictions to the right to request investigative measures itself, but the authorities are not bound to grant them. Nonetheless, the decision whether or not to do so is not discretionary and should be taken according to legal criteria.183 Failure to inform the arguido about this right carries a prohibition of using as evidence any statement that he/she might have made (CCP, Article 58(5)).

5. The Right to Silence The Portuguese procedural system assigns the arguido the right to remain silent during all the stages of the procedure, from the moment when he/she is formally designated as arguido. The fact that the arguido decides to remain silent cannot be detrimental to him/herself. Moreover, the CCP does not threaten with a sanction of any kind the arguido that, having decided to talk instead of remaining silent, makes false declarations. This does not configure a ‘right to lie’, but merely a ‘right not to be punished for lying’.184 As a consequence of the right to remain silent, the arguido has no duty of any kind to cooperate with the investigative authorities for the purpose of finding the truth (nemo tenetur se ipsum accusare). Hence, besides the right to refuse to talk, the arguido has the right to refuse to provide any documents or information or to inform the prosecution about the nature of his/her defence. It should be also noted that, as a refraction of the privilege against selfincrimination, the arguido cannot, under any circumstances, make declarations under oath (CCP, Article 140(3)). The sole restriction to this right is prescribed by CCP, Article 61(3)(b): the arguido must answer truthfully to the questions about his/her identity and, when imposed by law,185 about his/her criminal record, or he/she will be liable for the crimes of disobedience or of false statements. 183 The refusal to order the requested measures has no consequences. However, the arguido may challenge this decision: (a) if the measure was requested to the PP and it refused to execute it, the arguido cannot request the intervention of the investigative judge for the purpose of reviewing the PP’s decision, since, as the Constitutional Court has upheld in 2 June 2004 (Acórdão TC 395/2004 in www.tribunalconstitucional.pt), this would contradict the constitutional provision (Art 219(1)) that assigns the PP the direction of the inquiry. The arguido may resort only to the hierarchical superior of the public prosecutor who refused to order the measures, and he/she may confirm or contradict the decision of his/her subordinate; (b) if the measure was requested to the investigative judge and it refused to order it, the arguido may (but may only) resort to reclamation to that very same judge, and the decision on the reclamation is not susceptible of review (CCP, Art 291(2)). 184 Figueiredo Dias (n 3) 450ff. 185 Eg in all the interrogations to which he/she may be subjected (CCP, Arts 141(3), 143(2) and 144).

580 Portugal Failure to inform the arguido about his/her right to remain silent carries as a consequence the prohibition of using any statement that he/she may have made (CCP, Article 58(5)) as evidence. On the other hand, the CCP does not establish an absolute prohibition of self-incrimination either. The CCP has refused to establish a ‘patronising protection of the arguido against him/herself, or—which is the same—against his free will’,186 and therefore confession is admissible.187 In any event, the confession alone is not sufficient to convict the arguido: it will only give rise to conviction if it is made in trial and in compliance with very strict conditions.188

6. The Right to be Informed that his/her Statements May be Used as Evidence The Portuguese criminal procedure does not explicitly establish this right. It does establish the right of the arguido to remain silent and the right to be informed about that right; if it proves necessary for him/her to fully understand it, the investigative authorities must provide him/her due explanation on its scope. This somehow implies a warning that his/her statements may be used as evidence. In this sense, a right of the arguido to be informed that his/her statements may be used as evidence may be deemed (indirectly) granted. In any case, in the Portuguese criminal procedure, the evidentiary relevance of the statements made by the arguido during the preliminary stages of the procedure is very limited: those statements may be used to substantiate the decisions of indictment (by the PP) and its judicial confirmation (by the investigative judge), but, as to the final decision (of conviction or acquitment), the overriding ‘principle of immediacy’ requires that only the evidence produced or examined during the trial can be used (CCP, Article 355(1)).189 186 J de Figueiredo Dias, ‘Sobre os sujeitos processuais no novo Código de Processo Penal’ in Centro de Estudos Judiciários (ed) Jornadas de Direito Processual Penal: O Novo Código de Processo Penal (Coimbra, Almedina, 1988) 29. 187 When questioned at the pre-trial stage, the arguido may confess or deny the facts or his/her participation on the perpetration and refer to any circumstances that may constitute defences, as well as any other that may be relevant to determine his/her responsibility or the applicable sanction (CCP, Art 141(5)). If the arguido confesses the crime in the pre-trial questioning, this confession will only be read in trial if the requisites mentioned above are met, and, if so, the confession will be freely assessed by the judge, as evidence, in trial. 188 Specifically, with those that are prescribed by CCP, Art 344: if the arguido declares that he/she intends to confess the facts, the judge, under the sanction of (curable) nullity, must ask him/her if he/she is doing it willingly and free of coercion, as well as if he/she is willing to do a full and unreserved confession (confissão integral e sem reservas). This confession implies that: (1) the arguido renounces the production of evidence and, consequently, that the facts of the indictment will be considered as proved; (2) the trial hearing immediately proceeds to the phase of oral allegations and, should the arguido not be acquitted on other grounds, to the ascertainment of the applicable sanction; (3) the court fee (taxa de justiça) will be reduced by half. However, this will not happen if: (1) there are other arguidos and there is not a full, unreserved and consistent confession of them all; (2) the court suspects that the confession was not voluntary; or (3) the offence is punishable with imprisonment exceeding five years. However, if, in these cases, there is a full and unreserved confession, or a partial confession or confession with reservations, the court can decide whether or not, and in which measure, shall there be production of evidence. 189 The sole exceptions to this principle, as far as the statements of the arguido are concerned, are (CCP, Arts 355(2) and 357): (a) the statements that the arguido requests to be read, regardless of the authority before which they were made; or (b) the statements that were made before a judge, in the preliminary phases of the procedure, if there is a contradiction between those statements and the statements made by the arguido during the trial.

The Rights of the Arguido During Investigation and Prosecution 581 7. The Right to Full and Accurate Recording of his/her Statements Any investigative act performed during the inquiry must be recorded in a written document (the auto), except where the PP deems the recording unnecessary.190 In any case, when the measure (taking of statements from the arguido) is to be recorded, the PP has the faculty to determine that the recording consist of a mere docket, instead of a full recording. Hence, when the PP deems the docket to be sufficient, the arguido will not be granted a full and precise wording of his/her statements.191 The statements made during ‘bringing to judgment’ can be recorded either in an audio/ audiovisual format or in writing (auto). If the statements are to be recorded in an auto, it must be complete, but this recording does not have to be precise. If they are recorded in audio/audiovisual format, precision is inherent to the recording. The option between audio/audiovisual (precise) and written (not precise) recording is a discretionary decision of the judge192—hence, no consequence can be drawn from the fact that the judge opts for the written format. The statements made by the arguido during the debate that takes place in this phase are recorded in a written document called acta, in the form of a docket— hence, this recording will not be precise. In any of those procedural phases, if the statements are not recorded in compliance with the mentioned rules, the questioning is irregular.

8. The Right to Submit Written Statements The statements of the arguido, sensu proprio (CCP, Articles 140 f), are made orally. The arguido cannot answer in writing to the questions that are addressed to him/her and, in principle, he/she cannot (even) answer by reading documents previously written for that purpose (CCP, Article 96).193 However, CCP, Article 98 assigns the arguido the possibility of submitting, at any stage of the procedure, written explanations (explicações) and memoranda (memoriais);194 if these documents relate to the object of the process or aim at safeguarding fundamental rights of the arguido, they will be integrated in an auto and, therefore, can be used as evidence. The CCP does not impose on the investigative authorities the duty to inform the arguido about this right. It is up to his/her (diligent) defence lawyer to do so. Denying the arguido the right to submit explanations or memoranda constitutes an irregularity.

190 In any case, according to CCP, Art 275(2), there are no exceptions to the recording of some measures and acts, namely, the first judicial hearing of an arrested arguido. 191 However, when the recording is made in the form of a docket, the authority that performs the questioning must ensure that the docket corresponds to the statements made by the arguido. For that purpose, it may dictate the content of the docket or, even (either ex officio or at the request of the arguido) delegate on the latter the possibility of dictating it (CCP, Art 100(2)). In the latter case, the arguido will be granted a precise wording of his/her statements, though not a full one, since it is limited to a docket. 192 Often based exclusively on the (un)availability of technical means for audio/audiovisual recording. 193 In any case, the authority that interrogates the arguido can authorise him/her to read written notes serving as memory aid. If that happens, measures must however be taken to ensure the spontaneity of the statements. 194 According to Maia Gonçalves (n 160) 281, memoranda focus more specifically on the facts of the process, thus differing from the explanations, the content of which tends to be more generic.

582 Portugal 9. The Right to Refer to Documents During Interview The arguido has the right to indicate any circumstances that may constitute defences or that may be relevant to determine his/her responsibility or the applicable sanction (CCP, Article 141(5)). This encompasses the possibility of referring to documents. Furthermore, the arguido can present any object or document that may be used as evidence (CCP, Articles 138(5) and 140(2)). The violation of this right constitutes an irregularity.

10. The Right to Consult Relevant Legal Acts The CCP does not provide for this right. In practice, however, the possibility of consulting relevant legal acts—namely, during a questioning or, even, during the trial hearing—is not usually denied to the arguido (or, which is most likely, to his/her lawyer).195

11. The Right to have Another Person Informed About his/her Arrest Both arrest warrants and decisions applying coercive measures and patrimonial warrants must be immediately communicated to the lawyer of the arguido and, if the arguido so requests, to a person of his/her trust (CCP, Articles 194(9) and 260). Failure to respect this right configures an irregularity. The CCP does not establish the duty of informing the arguido about this right, but, in practice, the authorities executing the arrest usually provide him/her this information in the moment of the arrest or immediately afterwards.

12. The Right to be Informed About the Place of Detention The CCP does not explicitly provide for a right of the arguido to be informed in advance about the place where he/she will be detained or about the place of detention where he/she will be taken to. Nevertheless, since an arguido who is detained has the right to communicate with his/her lawyer immediately, through telephone,196 it can be concluded that this information cannot be concealed from him/her, to the extent that the lawyer must know where to meet him/her.

13. The Right to be Informed About the Charges The CCP provides for a full right of the arguido to be informed about the charges.

195 If this ‘possibility’ is denied, the arguido may submit a formal request (requerimento), even orally, asking for it to be granted, under the general conditions for the submission of requests established by CCP, Art 98. If, even so, this claim is not met, the arguido can, depending on the authority issuing the decision, appeal or resort to judicial review or hierarchical complaint, based on the argument that such a right is a corollary of the right to an effective defence. 196 As established by Art 5(1) of the Dispatch no 12786/2009 of 19 May 2009 on the conditions of detention in the premises of the Judiciary Police and in the places of detention existing in courts and in services of the PP.

The Rights of the Arguido During Investigation and Prosecution 583 Both the decision of indictment taken at the end of the inquiry and its judicial confirmation at the end of the (optional) phase of ‘bringing to judgment’ must contain fairly complete information on the charges, under penalty of (curable) nullity.197 The same applies, with few and immaterial particularities, to the indictment in the special proceedings.198 Moreover, when questioned by a police or judicial authority in the preliminary stages of the procedure, the arguido has the right to be informed about the facts that he/she is being accused of.

14. The Right to Access the File Traditionally, the inquiry was a secret phase, but Law no 48/2007 of 29 August—which reformed the CCP deeply—operated a ‘revolution’199 in this regard, by setting publicity (both internal and external) as the rule of the procedure as a whole. Previously, the rule was the secrecy of the inquiry: the procedure was public only from the moment when the final decision of ‘bringing to judgment’ was issued or, if this phase did not take place, from the moment when it could no longer be requested.200 Differently, according to current CCP, Articles 86f, the criminal procedure is public except where the law rules otherwise. However, on request, the investigative judge can order or authorise its secrecy, to ensure the success of the investigation or to preserve fundamental rights of the persons involved. According to the rule of the internal publicity of the procedure, the following subjects may access the file:201 (1) the suspect; (2) the defence lawyer; (3) the victim; (4) the assistente (who is, in principle, but not necessarily, the victim); (5) the civil party claiming damages; and (6) the civil responsible (who is, in principle, but not necessarily, the arguido). Besides those subjects, the rule of the external publicity of the procedure encompasses the possibilities of: (1) the public attending the debate that takes place in the phase of ‘bringing to judgment’ and the procedural acts defined as public by the law—eg, the main hearing at trial; and (2) narration or reproduction of procedural acts by the media. (3) The judicial authorities may yet provide public clarification on facts that are under secrecy of justice, at the request of persons publicly affected by the procedure. (4) And, if the procedure is not under secrecy of justice, its file can be accessed by any person who has a legitimate interest in doing so. During the phase of inquiry, the mentioned subjects may at any time have access to the file, so long as they request it to the judicial authority, and the same applies after this phase is closed. There is, however, a relevant difference, which consists of the fact that the information that can be accessed after closure of the inquiry is wider: (a) during the inquiry, access is possible even if the procedure is under secrecy of justice, but, if so, the PP may oppose to it, if it considers that the disclosure of information may jeopardise the investigation or affect

197

See CCP, Arts 283 and 285(3) on the indictment and CCP, Art 308(2) on its judicial confirmation. For a brief description of the special forms of proceedings existing in the Portuguese procedural system, see above, section A.2(a) (see also section A.2(b), in particular n 30). As far as the right to be informed about the charges specifically is concerned, see: (i) regarding the processo sumário, CCP, Art 389(2); (ii) on the processo abreviado, CCP, Art 391-B; and, (iii) as to the processo sumaríssimo, CCP, Arts 392 (2) and 394. 199 Pinto de Albuquerque (n 63) 236. 200 On the past legal framework, see M João Antunes, ‘O segredo de justiça e o direito de defesa do arguido sujeito a medida de coacção’ in M da Costa Andrade and others (eds), Liber discipulorum para Jorge de Figueiredo Dias (Coimbra, Coimbra Editora, 2003), 1237ff. 201 The ‘file’ consists of the full documentation of the procedure. However, this is not to say that all the documents encompassed in the file may be accessed, as will be explained briefly. 198

584 Portugal rights of the subjects of the procedure or of the victims;202 (b) once the inquiry is closed or its maximum terms have expired, the mentioned subjects can access any element,203 even if the procedure is under secrecy of justice. In any event, the judge, at the request of the PP, can order the postponement of the access for a period of three months.204 Not all the documents of the file can be accessed. Those that contain data concerning the private life of a person and that do not constitute evidence cannot, in principle, be accessed.205 The CCP does not define the documents that cannot be accessed. Instead, it establishes that, in each concrete procedure, the judicial authority shall specify, either ex officio or on request, the documents that shall remain under secrecy and, when appropriate, order their destruction or delivery to the person whom they concern. The subjects entitled to access the file can copy it under the conditions mentioned above. If the procedure is under secrecy, the prohibition of revealing information also applies, obviously, to the transmission of the copies. Non-observance of the rules above constitutes an irregularity.

15. The Right to be Informed About the Possibilities of Reconciliation with the Victim Due to the principle of legality, the possibilities of relevant reconciliation between the arguido and the victim are limited. Some cases may be mentioned, but most of them can hardly be considered ‘possibilities of reconciliation’.206 However, a true form of reconciliation was created by the mentioned Law no 21/2007 of 12 June on penal mediation (see above, section C.2). Judicial authorities do not have the duty to instruct the arguido about the meaning and scope of penal mediation or of any of the other ‘possibilities of reconciliation’, but solely to secure his/her consent or agreement. It is a task of his/her (diligent) defence lawyer to provide him/her due information thereon. The PP’s decision of submitting the case to penal mediation must be notified to the arguido and to the assistente; otherwise, it is irregular. However, the law does not define a term for this notification to be made.

202 If the PP opposes the access, the request will be taken to the investigative judge, who shall utter a final decision in that regard. 203 Nevertheless, the Constitutional Court ruled, on 12 August 2008, that this provision is unconstitutional when interpreted in the sense that ‘any’ elements, including those containing private data on other individuals, can be accessed (Acórdão TC 428/2008 in www.tribunalconstitucional.pt). 204 This period can be extended once (for the period of time objectively necessary to close the investigation), if the procedure concerns terrorism, violent, highly violent, or highly organised crime. 205 Notwithstanding, the judicial authority may give information on facts that are under secrecy, or order that it be given, if this does not jeopardise the investigation and is convenient to the finding of the truth or indispensable for a person to exercise a right. In any case, the person who is given the information remains bound to secrecy. The judicial authority may also authorise the issuance of a certificate informing about the content of an act or document that is under secrecy, for the purposes of another criminal procedure, disciplinary procedure of a public nature or civil procedure. Similarly, if the procedure concerns a road accident, a certificate may be issued, when necessary, to be used in a civil procedure or in a non-judicial means of resolution of a dispute where an insurance company to whom the civil responsibility has been transferred to is a party. 206 The following three cases might fall under that description: (1) the regime of private crimes lato sensu (above, section A.3(b)); (2) the diversionary measure of filing of the inquiry in case of possible exemption from the penalty (above, section C.2(a)); (3) the diversionary measure of provisional suspension of the procedure (above, section C.2(a)).

The Rights of the Arguido During Investigation and Prosecution 585 16. The Right to Judicial Review and Appeal As a principle, any measure that contends directly with individual fundamental rights and freedoms must be ordered, authorised or validated by a judge (CCP, Articles 268 and 269). When that is the case, there is no need for ‘judicial review’, because the decision is, inherently, a judicial decision. Still, those decisions can be appealed, as a rule, before a superior court (CCP, Article 399), unless the law provides otherwise (in CCP, Article 400).207 In the case where investigative measures can be ordered, authorised or validated by a different authority (the PP), there is no direct judicial review of the measure (since the PP enjoys a status of autonomy in the direction and supervision of the inquiry), but the validity of those measures can be challenged before the investigative judge when (and if) the phase of ‘bringing to judgment’ is requested, or later at trial. In case of appeal, possible appellants include those who have a legitimate interest protected by law—especially, the PP (also in the interest of the arguido), the arguido and those who bear a right affected by the decision (CCP, Article 401(1)).

17. The Rights of Legal Persons in Criminal Proceedings The governing principle is that the rules on natural persons apply with the necessary adaptations to legal persons, unless they are incompatible with their nature.208 The procedural rights and duties of the legal persons will be exercised by their legal representatives. Addendum: At the time of writing, a project of amendment of the CCP is on the verge of being approved by Parliament. One of the major amendments proposed (which may be considered as paradigm-shifting, as it introduces a severe and controversial exception to the so-called ‘principle of immediacy’) consists of allowing the use of the statements made by the arguido in the preliminary stages of the procedure as evidence, as long as they have been made before a judicial authority (PP or judge), in the (mandatory) presence of the defence lawyer, and the arguido has been informed about the rights that he/she is entitled to, including the right to remain silent. The project also foresees the broadening of the possibility of using, as evidence, the statements made by the assistente, the civil parties and witnesses in the preliminary stages of the procedure. Another relevant amendment consists of attributing to the investigative judge the possibility of applying, during the inquiry, coercive measures more severe than those requested by the PP, in case the arguido has escaped or there is a risk that he/she will escape, or in case there is a risk that the arguido will continue his/her criminal activity or severely disturb the public order. Other amendments can be found in the Proposta de Lei n.º 77/XII, in .

207 For a review on the right to appeal in the Portuguese legal system and a critical analysis of the cases where the law currently ‘provides otherwise’ (ie, precludes the possibility of appealing), see MÂLM de Lemos, ‘O direito ao recurso da decisão condenatória enquanto direito constitucional e direito humano fundamental’ in M da Costa Andrade and others (eds), Estudos em Homenagem ao Prof Doutor Jorge de Figueiredo Dias, vol 3 (Coimbra, Coimbra Editora, 2010) 923ff. 208 In this sense, see the ground-breaking decision of the Constitutional Court of 4 November 1997 (Acórdão TC 656/97 in www.tribunalconstitucional.pt), based on Art 12(2) Constitution, which states that ‘legal persons have the rights and are bound by the duties that are compatible with their nature’. See also the previous decision of the Constitutional Court of 30 October 1985 (Acórdão TC 198/85 ibid).

16 Romania ˘ R, ANGELA NICOLAE, CLAUDIU AUGUSTIN LAZA ˘R C-TIN DUMITRESCU, ANCA AUGUSTA LAZA

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure (a) The Meaning of Investigation and Prosecution in the Romanian Legal System

I

N THE ROMANIAN legal system the criminal trial is composed of certain phases, within which different categories of judicial bodies fulfil various procedural functions. When all the phases are completed, a solution can be given and the case is closed. In the typical structure of the Romanian criminal process, there are three phases: the criminal prosecution, the trial and the execution of decisions. The identification of the offender, his or her capture and the production of evidence in order to be brought to trial, requires the completion of a pre-trial procedural phase,1 which is regulated by CCP, Articles 200-86 and is known as the criminal prosecution phase. The Romanian CCP talks about the investigation when it refers to the bodies which carry out the criminal prosecution: the investigation bodies and the prosecutor. The criminal prosecution phase (CCP, c II), during which the criminal investigation takes place, aims at collecting evidence and bringing the defendant to trial. The CCP contains many provisions regarding the criminal investigation. This is carried out by the criminal investigation bodies of the judicial police (CCP, Article 207), by the special criminal investigation bodies (CCP, Article 208) and by the prosecutor (CCP, Article 209). Article 209 (point 1) mentions that the prosecutor supervises the criminal prosecution; thus, the prosecutor conducts and controls directly the criminal investigation activity carried out by the judicial police and by other special investigation bodies. The object of the criminal prosecution is the collection of evidence testifying to the offences, the identification of the offenders and the establishment of their guilt, in order to establish whether they ought to be brought to trial (CCP, Article 200). According to the current Romanian CCP, the offender is the person who committed the offence, the accused is the person against whom the criminal prosecution is initiated, and the defendant is the person against whom criminal action is initiated. The current CCP provides no definition of the word suspect, and introduces only the notions of accused and

1

N Volonciu, Tratat de procedura˘ penala˘, 3rd edn, vol 1 (Bucharest, Paideia Publishing House, 1996) 239.

General Aspects of the Procedure 587 defendant. The new Romanian CCP, which will come into full force and effect in 2013, introduces the notion of suspect in Article 77, defining it as: [T]he person who, based on the data and the evidence presented in the case, is suspected beyond a reasonable doubt that he/she committed an offence stipulated by the criminal law.

The capacity of defendant arises only when the criminal action is initiated. ‘Collection of evidence’ is understood as comprising both the collecting of evidence and the operation of examining and evaluating it in order to find out whether the offender should be brought to trial.2 Even if CCP, Article 200 does not contain express stipulations in this regard, the object of the criminal prosecution also includes the ‘identification of the victim of the offence’ as a necessary activity in both the criminal and the civil parts of the criminal case.3 The second phase of the criminal process is the trial, as regulated by CCP, Articles 287414/2. This phase allows for a continuation in the process of solving the criminal case, under conditions of publicity and with the observance of the defendant’s right to actively present their case and the right to a defence, so that the final court decision would be based on the truth regarding the offence and that the guilt of the offender, if proved, would be correctly established and synthesised in the sanction applied against him. The trial is carried out in front of the criminal court from the moment of the initial denouncement until the final solution of the criminal case.4 Having as its object the final solution of the criminal case, the trial is considered, with good reason, the central phase and the most important of the criminal process.5 The trial phase justifies its importance also by the fact that the court verifies the procedural activity, carried out together with all the other participants, both before and during the case trial.6 If the court finds that the procedural activity was not carried out adequately by the criminal prosecution bodies, it has the option of returning the file so that the criminal prosecution may be performed again. The last phase is the execution of the court decision, CCP, Articles 415-64, the scope of which is to watch over the actual realisation of the decision reached during the second phase. (b) The Meaning of Bringing to Trial in the Romanian Legal System According to CCP, Article 261, the prosecutor is obliged to proceed, within 15 days from receiving the file sent by the criminal investigation body, to the verification of the criminal prosecution documents and submit his opinion. Cases are resolved in accordance with CCP, Article 262, as follows. First, the prosecutor must establish that the legal provisions which safeguard the finding of truth were observed, that the criminal prosecution is completed and that the necessary evidence exists and was legally produced. He or she may then proceed, depending on the case, if, from the criminal prosecution material, it is concluded that the offence exists, that

2 3

V Dongoroz, Tratat de procedura˘ penala˘, vol 3 (Bucharest, All Beck Publishing House, 2003) 140. G Theodoru, L Moldovan, Drept procesual penal (Bucharest, Didactic and Pedagogic Publishing House, 1979)

195. 4 5 6

I Neagu, Tratat de procedura˘ penala˘, vol 1 (Bucharest, Universul Juridic Publishing House, 2007) 146. S Kahane, Drept procesual penal (Bucharest, Didactic and Pedagogic Publishing House, 1963) 242. Volonciu (n 1) 7.

588 Romania it was perpetrated by the accused or by the defendant, and that he or she is criminally responsible: (i) if the criminal action has not been initiated during the criminal prosecution the prosecutor issues the indictment act through which the criminal action is initiated and orders the bringing to trial; (ii) if the criminal action has been initiated during the criminal prosecution, the prosecutor issues the act of indictment through which he orders the sending to court. The indictment must be limited to the offence or the person who is criminally investigated and must include, besides the specifications stipulated in CCP, Article 203 (date, place of issue, name and surname, quality of the issuing authority etc), the information concerning the offender, the offence of which he is accused, the judicial setting, the evidence upon which the accusation is founded, the preventive measure taken and its duration as well as the arraignment decision.

2. Sources of Criminal Procedural Law Romania’s laws (constitutional, organic and ordinary) are themselves the main source of criminal procedural law, the 1968 CCP and its future amendments being the source of most regulations. Other sources of regulations are: international treaties, government ordinances (in areas which are not the object of organic laws; GOs are subject to Parliament’s approval) and, in exceptional cases, emergency ordinances, which come into effect only following their deposition in Parliament, and as long as they are not rejected by the latter. Criminal procedural rules in the Romanian legal system require a statutory base. The criminal procedural law is first of all connected to the constitutional law, because at the base of every branch of law there are juridical constitutional norms. The new Romanian Constitution lays down numerous rules for various fields, which directly concern the criminal procedural law. A few examples can be given in this respect. Article 126 para 3 of the Romanian Constitution mentions: The High Court of Cassation and Justice insures the unitary interpretation and enforcement of the law by the other courts of law, according to its competence

while Article 14 para 2 of Law 304/2004 on judicial organisation, contains the same stipulation. Criminal procedural rules in the Romanian legal system also have a case law base, including the case law of the ECtHR and of the ECJ. The ECHR and its 11 additional protocols were ratified by Romania on 20 June 1994, since when Romania has recognised the jurisdiction and case law of the ECtHR as binding on Romanian courts in the matter resolved. In the event of the ECtHR finding that a Romanian court has violated a right stipulated in the ECHR, the decision of that court is subject to revision. According to Article 20 of the Romanian Constitution: The constitutional regulations concerning the rights and freedoms of the citizens will be interpreted and applied in accordance with the Universal Declaration of Human Rights, with the pacts and other treaties to which Romania adhered.

General Aspects of the Procedure 589 If there are inconsistencies regarding the fundamental human rights between the pacts and the treaties to which Romania adhered and the domestic laws, the international regulations will have priority, except from the case where the Romanian Constitution or the domestic laws contain provisions which are more favourable.

3. Bodies Carrying out Investigation and Prosecution According to CCP, Article 201 criminal prosecution is carried out by the criminal investigation bodies and by the prosecutor. The criminal investigation bodies are: a) the criminal investigation bodies of the judicial police, b) the special criminal investigation bodies. The criminal investigation bodies of the criminal police consist of agents from the Ministry of Administration and Interior, designated nominally by the minister of administration and interior, with the assent of the general prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice and they carry out their activity subject to the authority of the latter.7 (a) Investigation Bodies of the Criminal Police Among the criminal investigation bodies, the investigation bodies of the criminal police have a special role, because they have very wide competences, being able to carry out investigations for every offence not mandatorily assigned to other investigation bodies’ competence. The Ministry of Administration and Interior organises and carries out, through specialised structures, according to their competence, activities in order to prevent and fight terrorism, organised crime, crimes against the financial interests of the EU, as well as other criminal phenomena and antisocial actions.8 For this reason the specialised literature shows that the investigation bodies of the criminal police have general material competence.9 In urgent cases they can carry out investigation acts which cannot be delayed, even if they concern a case which is not within their competence. Their work is immediately reported to the prosecutor who supervises their activity, or to the competent prosecutor. He can visit the crime scene, he can make drawings and take photographs. The data collected in this manner will be corroborated with other information obtained personally.10 (b) The Prosecutor The prosecutor supervises the criminal prosecution, conducts and controls directly the criminal prosecution activity performed by the criminal police and by other special investigative bodies. The prosecutor can carry out any act of criminal prosecution in the files he supervises.

7 By Emergency Ordinance of the Government No 60/2006, Art 201 CCP, withdrawal of the general prosecutor’s assent terminates their tenure as agents within the criminal police office. 8 According to Art 14 para 1 lit b) Emergency Ordinance of the Government No 63/2003; Neagu (n 4) 48. 9 Volonciu (n 1) 250. 10 Decision no 740/1998, High Court of Cassation and Justice, Criminal Section, 508-10; Decision no 851/1980, High Court of Cassation and Justice.

590 Romania The criminal prosecution is performed mandatorily by the prosecutor in the following cases: crimes against state security (CC, Articles 155–74), conflict of interests (CC, Article 253/1), bribery (CC, Article 255), crimes against the financial interests of the EU stipulated by Law 78/2000 etc. In special cases, where the prosecutor does not have the possibility to carry out the criminal investigation personally, a delegation can intervene through rogatory letter, according to CCP, Articles 132–35.11 The prosecutors within hierarchically superior prosecutor’s offices can, in order to perform the criminal investigation, take over cases under the competence of a lower prosecutor’s office, on command of the hierarchically superior leader. In the Romanian legal system, there is no investigative judge. (c) Specialised Investigative Bodies In some cases, given the nature of the offence as well as that of the offender, the CCP expressly stipulates that the criminal prosecution be carried out by a special investigative body (CCP, Article 208). In such cases the criminal investigation may be carried out by the following special investigative bodies: officers, designated by military unit commanders in cases regarding offences perpetrated within the unit by subordinate military;12 the commanders of the military unit; the officers designated by the garrison commanders; the garrison commanders (CCP, Article 208 para 1 lit b); officers designated by military centre commanders; border police officers13(CCP, Article 208 para 1 lit d), harbour masters (CCP, Article 208 para 1 lit e). (d) Certain Bodies Outside Judicial Structures Sometimes, besides the judicial bodies, there can be other non-judicial bodies which can participate in the process of discovering and establishing crimes. These bodies ascertain the existence of crimes committed in their field of activity. Such bodies are: a) the bodies of the state inspectorates as well as other state bodies, the bodies of the units stipulated at CC, Article 145;14 b) the control and leading bodies of the public administration; c) the officers and non-commissioned officers within the Romanian Gendarmerie, for crimes committed during the performance of special tasks. Officers, harbour masters and the other mentioned agencies draft documents which ascertain the crime, are obliged to take statements from the perpetrators and from the persons who witnessed the offence, recording their findings in a statement of facts which comprises the circumstances of the offence. They do not have the competence of drawing up the indictment (which is an exclusive prerogative of the prosecutor) and they also cannot defend it before the court—the prosecutor defends the indictment before the court. The documents issued by the police, harbour masters, other agencies are sent to the prosecutor. Specialised agencies do not carry out the criminal prosecution (CCP, Article 214). 11

Decision no 1665/1992, High Court of Cassation and Justice, Criminal Section, C 6, 452. Through the Law no 281/2003, the provisions concerning their competence and the offences perpetrated in relation with the service in the military unit or outside, by civilian servants of these military units, have been abrogated. 13 Art 71 para 1 Emergency Ordinance of the Government No 105/2001 regarding the state border of Romania. 14 Those communicated by the state, which can ascertain the perpetrating of crimes such as cheating during measurement (Art 296 CC) cheating related to the quality of goods (Art 297 CC). 12

General Aspects of the Procedure 591 4. Threshold for Initiating Investigation and Prosecution The initiation of the criminal prosecution is ordered when there are strong indications that a crime has been committed. According to CCP, Article 681, strong indications exist when the information gathered allows for the reasonable assumption that the person against whom preliminary acts have been initiated is indeed the offender. The criminal prosecution can begin only when there is no impediment concerning the initiation of the criminal action (CCP, Article 228 para 1). The criminal prosecution bodies can only take action after being formally notified about the perpetration of an offence. The external notification is done through complaint or denunciation and by special reporting methods (preliminary complaints, expression of the wish of the foreign government in the case of a crime against a foreign country representative—CC, Article 171). The criminal prosecution body can be informed ex officio and drafts an official record. The decision to initiate the criminal prosecution, taken by the criminal investigation body, is submitted for confirmation of the prosecutor within 48 hours. From the moment of initiation of the criminal prosecution, the perpetrator, in the juridical rapport of the substantive criminal law, is termed the accused in the juridical rapport of the criminal procedural law, until such point as the criminal action is initiated against him, whereafter he is termed the defendant.

5. The Legality and Opportunity Principle The principles nullum crimen sine lege and nulla poena sine lege, which signify the legality of incriminations and the legality of punishments in the criminal law have as correspondent in the procedure the principle nulla justitia sine lege, namely that there is no justice outside the law. Consecrated as a basic rule of the criminal proceedings in CCP, Article 2 para 1, it is shown that the criminal process is carried out both during the criminal prosecution and during the trial, according to the law. The provisions of the CCP, and the modifications brought by Law 202/2010, allow the prosecutor to ponder the opportunity of a criminal investigation in a low importance case, although there is no express consecration of this principle, in order that the investigative resources may be channelled towards more important files. Thus, following the modification of CC, Article 18/1, the text is also applied in the situation of an unknown perpetrator (the text allows for the investigation to be terminated and the application, from the part of the prosecutor, of a sanction stipulated by CCP, Article 91: reprimand, reprimand with warning, or fine in the amount of 10 to 1000 Lei). The new CCP expressly makes reference to the opportunity principle in Article 7, para 2, which stipulates that ‘in the cases and conditions expressly stipulated by law, the prosecutor can give up criminal action, if there is no public interest in the realisation of its object, in relation to the concrete elements of the case’.

6. The Status of the Accused/Defendant In the Romanian criminal process the parties are: the defendant, the injured party and the civil liable party (CCP, Articles 23, 24). In the course of the criminal process, the

592 Romania active subject15 of the crime receives different procedural qualities, which have distinct significations, with resonances in the structure of the content of the juridical criminal procedural relationship. In other words, the procedural qualities received by the perpetrator during the criminal process entail obligations and rights which the person held criminally responsible has to bear or execute during the procedural activity. Before initiating the criminal process, the subject of the juridical conflict relation has the quality of perpetrator (CCP, Articles 200, 214, 215). The perpetrator becomes, after the initiation of the criminal process, the main passive subject of the juridical procedural relationship. The accused is the person against whom the criminal prosecution is carried out, as long as the criminal action has not been initiated against him/her. The accused is subject to procedural rights and obligations, the perpetrator is not such a subject, because there is no criminal procedural setting within which he would have such rights and obligations, which only arise when the criminal prosecution is initiated, at the beginning of the criminal process. The procedural acts through which the perpetrator is conferred the quality of accused, are the resolution and exceptionally the ordinance and the official record.16 The new code of criminal procedure stipulates in c III, Article 77 the notion of suspect. The suspect is the person who, from the data and evidence existing in the case, appears to have committed an act stipulated by the criminal law. The suspect has the rights stipulated by the law for the defendant, unless the law stipulates otherwise. The quality of defendant appears once the criminal action has been initiated. The person against whom the criminal action has been initiated (when the criminal investigation and the criminal prosecution confirm the guilt) is part of the criminal process and is called the defendant (CCP, Article 23). The criminal action represents the legal means by which the goal of the criminal process is realised. Its object is to hold criminally responsible those natural and legal persons who have committed crimes. The moment of initiation of the criminal action is chosen by the criminal prosecution bodies, and coincides with the existence of the reasons which result from the evidence of guilt brought into the case. The procedural acts, through which a person is conferred this status, are the ordinance of initiating criminal action, the indictment, the oral statement of the prosecutor and the decision of the court of law under the conditions stipulated at CCP, Articles 336, 337 and 2781 para 8. The defendant is thus considered a party in the process, having certain obligations which the accused does not have. For example, the defendant can be arrested for a longer period.17 The accused or the defendant, against whom the preventive arrest is ordered, must be heard. The quality of defendant will change to that of convict when the criminal decision becomes final. The defendant also has rights, eg: the right to a defence, the right to know the materials of criminal prosecution, the right to have the last word before court, the right to appeal the decisions rendered against him. To comply with the obligations he has, as well as to exercise his rights, the defendant must effectively participate in the criminal process (CCP, Article 314 para 2).

15 The term ‘active subject’ generally means perpetrator, but it also encompasses the notions of ‘author’, ‘instigator’ and ‘accomplice’ in the sense of the criminal law. 16 The resolution is generally the procedural act through which, according to CCP, Art 228, the criminal prosecution is initiated. 17 The defendant can be arrested by the judge or by the court of law for a period up to 30 days, and the accused up to 10 days.

Investigation Measures

593

7. Specialised Procedure for Financial Criminal Investigations In the Romanian judicial system there is no specialised procedure for criminal financial investigations. There are specialised institutions which carry out periodical financial controls at those institutions which have financial attributions; when these institutions become aware that certain acts must be investigated by the criminal investigation bodies, they inform the prosecutor’s office or the judicial police. The Audit Court exercises a control function over the formation, administration and use of the financial reserves of the state and of the public sector, delivering to Parliament and to the territorial-administrative units reports regarding their use and administration, in accordance with the principles of legality, regularity, economy, efficiency and effectiveness (Article 21 of Law 94/92 for the Organisation and the functioning of the Audit Court). Under the the subordination of the National Agency for Tax Administration (Government Ordinance no 109/2009) there operates the Financial Investigation Office. The National Office for Preventing and Combating Money Laundering has as its object the prevention and combating of money laundering, for which purpose it receives and analyses the information and informs the Prosecutor’s Office attached to the High Court of Cassation and Justice, or the Directorate for Investigating Organised Criminality and Terrorism (Law no 656/2002). The purpose of the Antifraud Fighting Department (DLAF) is the protection of the financial interests of the EU in Romania. The Department has control competences for the Community funds, being national leader in the fight against fraud. DLAF is the contact institution of OLAF and ensures, supports or coordinates, as the case may be, the fulfilment of Romania’s duties regarding the protection of the financial interests of the EU. According to Article 325 of the Treaty, it has the competence to control the allocation and use of Community funds, as well as of the different co-financing funds. DLAF carries out operative on-site checks following the information received from OLAF, from the authorities with competences in the management of the community financial assistance, or ex officio. In exerting these investigative attributions, DLAF—which has unconditional access to the premises of units, as well as vehicles or any other spaces used for economical purposes— can take statements from the perpetrator or the witnesses who have been present at the committing of crimes, can draw up official records about the real circumstances of the perpetration of crimes, and can seize corpus delicti. The criminal prosecution bodies are obliged to immediately inform the prosecutor about the crimes which came to their attention (CCP, Article 218 para 2). After drawing up the indictment, through which the defendant is sent to trial, the prosecutor is no longer informed about the case.

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect According to the current regulations, a person becomes an accused only after the beginning of the criminal prosecution. Article 77 of the new code of criminal procedure stipulates that the suspect is a person who, from the data and evidence existent in the case, appears to have committed an act punished by the criminal law.

594 Romania In Article 109 of the Romanian Constitution it is stipulated that only the Deputies Chamber, the Senate and the President of Romania have the right to request the criminal prosecution of government ministers for acts committed during the exercise of their functions. If criminal prosecution has been requested, the President of Romania can order their suspension from office. The bringing before court of a member of the government leads to his suspension from office. In the special criminal laws, both legal persons and natural persons are obliged to give information requested by the specialised authorities. Similarly, the provisions of Law 87/1994 on combating tax fraud, of Law 650/2002 for the sanction of corrupt acts, and of the CCP which stipulates the obligation of persons holding leading positions, to immediately inform the prosecutor or the criminal investigation body of the perpetration of a crime. Under CC, Article 263, violation of this obligation can become an offence: The act of the public servant who, having knowledge about the perpetration of a crime related to the office where he carries out his duties, omits to immediately inform the criminal prosecution body, according to the criminal procedural law, will be punished with prison from three months to 5 years. If the act is committed by a civil servant holding leading or control attributions, the punishment is prison from 6 months to 7 years.

Before the modification of the CC through Law no 278/2006, in the criminal process in Romania, only a natural person could be a defendant. Through Law no 278/2006, the criminal liability of legal persons has been generalised. CC, Article 531 stipulates main and complementary punishments applicable to legal persons. The main punishment is a fine from 2,500 Lei to 2,000,000 Lei, and the complementary punishments are dissolution, suspension of the activity of the legal person for a period of three months to one year, or suspension for three months to three years of one of the activities of the legal person, related to which the crime has been perpetrated. Places of work can be shut down for a period of three months to three years; businesses may be prevented from making public acquisitions for a period of one year to three years. The financial investigations are carried out by the criminal investigation bodies or by the prosecutor. There are special laws which regulate the initiation procedure. For example, one of the procedures consists of informing the Office for Prevention and Combating of Money Laundering by the institutions and bodies stipulated in Article 8 of the Law on money laundering. The office will then inform the National Anticorruption Directorate and the Directorate for Investigation of Organised Crime and Terrorism. In the case of financial crimes under the competence of the National Anticorruption Directorate, the provisions of the criminal procedure are applied. In the present criminal procedure regulation (CCP, Articles 465–79), the special procedure instituted for certain crimes caught in flagrante delicto is based on the necessity of simplifying the forms of performing the criminal process and for promptly holding the perpetrator criminally responsible. Although this special procedure contains derogatory norms from the normal procedure of the criminal process, the basic principles which guide the criminal process are observed in the same manner. Sometimes the perpetrator is caught ‘red-handed’, or immediately after the perpetration. The offender can at times be pursued by the injured person, by eyewitnesses or by public outcry and also by CCTV and other public cameras. Also, the perpetrator may be caught close to the crime scene with weapons, tools or any other objects which suggest that he was a participant in the crime. Based on the emergency character of this special procedure, the criminal prosecution bodies can handle cases concerning crimes which are given to the exclusive competence of the prosecutor. Other bodies

Investigation Measures

595

stipulated in CCP, Articles 214 and 215 are competent to establish a crime in flagrante delicto as well, eg: the state inspection agencies, the captains of ship or aircraft etc, who are required to immediately turn over to the prosecutor or to the criminal prosecution body, the perpetrator, the works carried out and the evidence collected, in order to observe the terms of this procedure. The competent criminal prosecution body draws up an official report mentioning any findings regarding the crime and the statements of the accused and of the other persons who have been heard. If the case arises, the criminal prosecution body can also collect other evidence. After receiving the file, the prosecutor verifies the criminal prosecution documents and pronounces within two days the closing of criminal prosecution or the return of the file. If the prosecutor orders that the offender be sent to trial, he draws up the act of indictment and immediately submits the file to the court. The measures adopted by the prosecutor can be overruled by the hierarchically superior prosecutor, if they are deemed unlawful. The solution of discharge from criminal prosecution can be appealed in court. 2. Questioning the Suspect Pre-Trial Based on the fact that the accused or the defendant knows best the circumstances in which the crime was committed, CCP, Article 64 has included the statements of the accused or of the defendant amongst the means of evidence in the criminal proceedings. The statements of the accused or of the defendant represent a right and not a duty (nemo tenetur edere contra se). In the first stage of the criminal process, the accused is heard at the beginning of the criminal prosecution (CCP, Article 70) and at the end of the criminal prosecution, as well as when the measure of preventive arrest is taken (CCP, Article 146). In the case of the accused or the defendant, the questioning procedure follows a set of procedural or tactical rules. Before being questioned, the accused or the defendant is asked about his personal data, after which he is informed about the act which constitutes the object of the case, about the legal considerations, the right to have a defence lawyer as well as the right to remain silent, as anything he says may be used against him. As a limitation to this measure, only the Deputies Chamber, the Senate and the President of Romania have the right to request the criminal prosecution of the members of government for acts committed during the exercise of their functions. Therefore even if the accused or the defendant admits the offence (self-incrimination), they cannot be questioned by the criminal prosecution bodies for this act without the authority of the abovementioned institutions (Article 109 para 2 of the Constitution). The statement is recorded in written form and is signed on each page by the accused, defendant, the criminal prosecution body and the interpreter, if one is appointed. In the CCP there is no stipulation of the obligation to cooperate with the criminal prosecution bodies, but such cooperation has some significance, because sincerity and the facilitation of finding or arresting the participants in a crime can represent mitigating circumstances and finally lead to a reduction in the punishment. The questioning is done by the criminal investigation bodies and by the prosecutor, in the criminal prosecution phase. In the case of flagrante delicto crimes, the notified criminal investigation body issues a protocol in which the facts of the crime are recorded, as well as the statements of the accused and of other persons (CCP, Article 467).

596 Romania Assistance by a defence lawyer is mandatory at each stage of the criminal prosecution, as well as during the questioning, only when the accused or the defendant is a minor, committed to a rehabilitation centre or a medical and educational facility (as an educative measure), when he or she is detained or arrested in another case, when the security measure of being committed to a medical facility was taken against them, or when they are required to undergo medical treatment in another case, or when the criminal investigation body or the court deems that the accused or the defendant could not defend themselves. In the judicial review, the court, if the file is returned for remaking the criminal prosecution, can order a new hearing of the accused or of the defendant, establishing also the questions to be asked.

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Party) Practically in every criminal case, in order to find the truth, the statements of witnesses are an essential contribution, a fact which has led some authors to consider testimony evidence as a natural, inevitable proof. Some authors, wishing to highlight the importance of this means of evidence in the criminal proceedings, have regarded witnesses as ‘the eyes and the ears of justice’.18 When defining the witness, the law (CCP, Article 78) stipulates that it is the person who has knowledge about the act or about certain circumstances which can serve to the disclosure of truth in the criminal proceedings. Any natural person can be summoned as a witness in the criminal process, irrespective of his or her physical condition (blind, deaf, dumb),19 or a psychological condition,20 and the judicial bodies have the latitude to appreciate which of these persons are qualified to deliver information, necessary for the solution of the criminal cases. As a restriction, professionals who are obliged to observe the professional confidences (lawyers, doctors, notaries public etc) cannot be summoned as witnesses, according to CCP, Article 79. The disclosure of a state secret or of a professional secret represents a crime (CC, Articles, 196, 251, 298). The quality of witness has priority regarding the facts and circumstances which were known by the witness, before becoming defence lawyer or representative of a party. Those persons, who are not obligated to appear as witnesses, make declarations if they agree to this. In this respect, CCP, Article 80 stipulates that ‘the husband or the close relatives are not obligated to speak as witnesses’.21 If they agree however, they can give evidence as witnesses. According to CCP, Article 82 the injured person or civil party cannot be questioned as witnesses in the Romanian criminal trial, because they are parties interested in the case, and they cannot combine the status of witness with that of a party, because nobody can speak as a witness in his own case (nemo testis idoneus in re sua). The injured person can,

18 19

J Bentham, Traité des preuves judiciaires, vol 1 (Paris, Bossange Frères Publishing House, 1823) 93. A blind person can be heard about a circumstance he has heard, and a deaf about a circumstance he has

seen. 20

A psychologically ill person can be heard. According to CCP, Art 149, close relatives are ascendants and descendants, brothers and sisters, as well as the persons who become by adoption, according to law, such relatives of the accused or of the defendant. 21

Investigation Measures

597

however, be heard as a witness if he is not a civil party in the case or is not participating in the process as an injured party (CCP, Article 82). A lying witness is sanctioned for the crime of false testimony, according to CC, Article 260. The witness has two obligations: to appear at the established place, on the day and at the hour mentioned in the summons, and to declare everything he or she knows related to the aspects of the case. If these two obligations are not properly observed, the witness can be sanctioned with a fine between 250 and 5,000 Lei. The authorisation for witness interrogation is given by the prosecutor who supervises the case, the interrogation being done by the criminal investigation bodies and by the prosecutor. As in the case of questioning of the accused, the defendant or the other parties, this interrogation procedure is preceded by an identification phase (CCP, Article 84). If he has a hostile relationship with the parties, the witness may still be heard, but for the evaluation of proofs this aspect will be taken into account. Before being heard, the witness will swear an oath to tell the truth and not to hide anything of what he knows, holding his hand on the cross or on the Bible. A witness without religion will swear a very similar oath. If there are more witnesses, each one will be heard separately (CCP, Articles 86, 71 para 2). During the criminal prosecution, if there are more witnesses, each one will be heard without the others being present. First, the witness is allowed to declare everything he knows related to the case. The provisions concerning the recording of the statement of the accused or the defendant also apply in the procedure of witness interrogation (CCP, Articles 73 and 86 para 3). The CCP was amended by special provisions of Law no 281/2003, which refer to the interrogation as witnesses of certain protected persons. Therefore, whenever there is enough evidence or strong indications that through the declaration of the witness’s real identity or place of residence, his or another person’s life and body integrity or freedom could be endangered, he can be permitted not to declare these data, and will be given another identity under which he will appear in front of the judicial body (CCP, Article 86/1 para 1). The judicial body competent to order this measure is the prosecutor in the phase of criminal prosecution and in the trial phase, the court, on the motivated request of the prosecutor, of the witness or of any other rightful person. CCP, Article 86/2 stipulates special modalities for hearing a witness whose identity is to be protected. In such situations (for the phase of criminal prosecution), the witness can be admitted to be heard without being physically present at court, through technical means, namely through a CCTV network with distorted image and voice, so that the witness cannot be recognised. The prosecutor supervising the criminal prosecution gives the approval to the criminal investigation body for this modality of hearing the witness and prepares a report in which he motivates his proposition. The statement is recorded both in written form and on magnetic tape or on any other electronic device. The absence of the defence lawyer does not hinder criminal prosecution, if there is proof that the lawyer was informed of the date and the hour of the hearing (eg of a witness). The notification is performed through phone or other means of communication, and an official report is drafted to this effect.

4. Arresting the Suspect and Detention for Questioning The accused or the defendant can be brought with a summons even before being notified, if the criminal prosecution body or the criminal court ascertains that this measure is

598 Romania necessary in the interest of solving the case. A person summoned in such a manner cannot be held at the judicial body’s disposal only strictly for the period of their questioning, except for the case when their detention or arrest is ordered. The summoned person is heard by the judicial body in the shortest time (CCP, Article 183 para 2-4). The summons is served by police bodies, the gendarmerie or the community patrol. If the accused, defendant or the witness refuses to obey the summons or tries to run, he or she will be brought by constraint before the criminal prosecution bodies or before the court (CCP, Article 184 para 1 s¸i 3/1).

5. Pre-Trial Custodial Detention Pre-trial custodial detention falls within the category of preventive measures, which are processes of criminal procedural law, having a coercive character, through which the accused or the defendant is prevented from certain actions which could have negative repercussions on the criminal proceedings. The preventive measures are: the arrest (apprehension), interdiction to leave the town, interdiction to leave the country and pre-trial custodial detention (CCP, Article 136). The conditions required cumulatively in order to take this measure (CCP, Article 146 para 1), are: 1) the existence of evidence or strong indications that the accused committed an act proscribed by the criminal law. According to CCP, Article 681 there are strong indications when, from the data existing in the case, it appears that the person against whom preliminary acts or criminal prosecution acts are carried out, committed the act; this measure can be taken only in the case of acts which are punishable by the criminal law with prison or a custodial life sentence, the measure of pre-trial custodial detention cannot be ordered in the case of offences for which the law stipulates alternatively prison or a fine; 2) the existence of one of the cases stipulated in CCP, Article 148, namely: a) the accused ran or hid in order to evade criminal prosecution or trial, or if there is information that he will evade, in any way, criminal prosecution, trial or execution of punishment; b) the accused violated with bad faith the measure of interdiction to leave the country or the conditions imposed upon him during these measures; c) there is information that the accused tries to hinder, directly or indirectly, the finding of truth by influencing the opinion of a witness or of an expert, or by destroying, distorting or misappropriating evidence; d) there is information that the accused prepares the perpetration of a new crime; e) the accused committed with intention a new crime. If these conditions are met, the prosecutor can issue ex officio or after being notified by the criminal investigation body, a motivated proposal for taking preventive measures against the accused, when he considers that his detention is necessary in the interest of the criminal prosecution; prior to this, the accused ought to be questioned in the presence of a defence lawyer. The proposal of pre-trial custodial detention is resolved in the council chamber by a single judge, irrespective of the nature of the crime. The accused is brought before the judge and will be assisted by a defence lawyer. The participation of the prosecutor is mandatory. If the above-mentioned conditions are fulfilled, the judge orders the pre-trial custodial detention of the accused for a period not exceeding 10 days (this cannot be extended).The decision can be appealed, within 24 hours from the moment of its issue for persons who were present, or from the moment of communication in the case of persons who were absent.

Investigation Measures

599

Due to its duration, the measure of pre-trial custodial detention of the defendant is the most severe of the custodial preventive measures. The conditions of taking this measure are the same as in the case of pre-trial custodial detention of the accused, only the period is longer; according to CCP, Article 149, during the criminal prosecution it cannot exceed 30 days, except under certain conditions. The maximum duration of pre-trial custodial detention during a criminal prosecution is 180 days (CCP, Articles 148–60). In order to execute the arrest warrant, the police can enter the domicile or the residence of a person without their consent, as well as the premises of a legal person, without the consent of its representative. The defence lawyer is informed about the place and the moment of the execution of this measure. It is requested that the lawyer be present at the execution of the measure (when the defence is mandatory ie when the accused or the defendant is arrested).

6. Interception of Postal Communications (Letters) The secrecy of correspondence is not an absolute right, and is susceptible to certain restraints, justified by the necessity of the criminal instruction. Such legal provisions are necessary in a democratic society, in order to safeguard national security, defend public order and prevent crime.22 (a) The Seizure and Delivery of Correspondence and Objects The court may, at the prosecutor’s request during the criminal investigation, or in its own right during the trial, decide that any postal or transport unit seize and deliver the letters, telegrams and any other correspondence, or the items sent by the accused or the defendant, or addressed to them, either directly or indirectly. This measure is decided according to the conditions and the procedure stipulated by CCP, Article 91/1 para 1, regarding the interception of telephonic conversations. The seizure and delivery of letters, telegrams and any other correspondence or objects to which the law makes reference, may also be decided in writing, in urgent and thoroughly justified cases by the prosecutor, who has the obligation to immediately inform the court of this measure (CCP, Article 98).

7. Interception of the Contents of Telecommunications (Content Data) The interception and the recording of conversations and communications performed by phone or by any other electronic communication means is carried out on the authorisation of the judge, at the request of the prosecutor who carries out or supervises the criminal prosecution, under the conditions stipulated by law, if there are facts or solid indications regarding the preparation or the perpetration of a crime for which the criminal prosecution is performed ex officio, and the interception and recording are necessary for establishing the state of facts or because the identification and localising of the participants cannot be done by other means, or the investigation would be much delayed (CCP, Article 91/1

22

Decision no 410/2008, Constitutional Court (Jurisprudent¸ a.com).

600 Romania para 1). The interception and the recording of the conversations or of the communications made by phone or by any other electronic means of communication, can be authorised in the case of crimes against national security, stipulated in the CC and in other laws (eg Law 39/2003 on the prevention and fight against organised crime)23 as in the case of crimes related to drug trafficking, trafficking of weapons, trafficking of people, terrorism acts, money laundering, counterfeit of money or other valuables, in the case of crimes stipulated by Law 78/2000 for preventing, discovering and sanctioning of corruption, in the case of other serious crimes or of the crimes perpetrated by means of electronic communication (CCP, Article 91/1 para 2).24 The authorisation is given for the period necessary for the interception and recording, but not exceeding 30 days, in the council chamber, by the president of the court which would be competent to trial the case in first instance, or from a court which has a corresponding degree of jurisdiction where the seat of the prosecutor’s office is, to which the prosecutor carrying out or supervising the criminal prosecution belongs. The authorisation can be renewed under the same conditions, for solid, justified reasons, each extension not exceeding 30 days. The total period of authorised interceptions and recordings regarding the same person and the same criminal act cannot exceed 120 days. In emergency cases when a delay in obtaining authorisation would produce serious prejudices for the activity of criminal prosecution, the prosecutor can, by motivated ordinance, registered in a special register, order the temporary interception or recording of conversations or communications, for a period not exceeding 48 hours. Within 48 hours from the expiration of this term, the prosecutor presents the ordinance together with the device containing the interceptions and the recordings and an official record of the conversations, to the court for confirmation. The judge decides on the legality and solidity of the ordinance in 24 hours, through motivated trial brief, issued in the council chamber. The intercepted or recorded conversations or communications are entirely reproduced in an official transcript of the record by the prosecutor. The judge must approve the measure, and he also controls its execution. There are no restrictions (eg professional privileges) in taking this measure. Chapter IV, Article 138, para 1 of the new CCP stipulates special investigation techniques of surveillance, as follows: a) interception of conversations and communications (including mail); b) access to an information system; c) video and audio surveillance.

8. Monitoring of Telecommunication Traffic Data The regulation formerly applicable in this matter was Law 82/2012 regarding the retaining of general data or their processing by the providers of electronic communication services destined to the public or public telecommunication networks.25 Law 82/2012 established the obligation of the providers of public services and electronic communication networks to systematically hold certain general data or their processing throughout their activity of delivering electronic communications, in order to make them 23

Published in the Official Journal of Romania No 50, 29 January 2003. LC Kovesi, A Laza˘r, ‘Accesul s¸i supravegherea sistemelor de telecomunicat¸ ii sau informatice: Mijloace de proba˘’ (2003) 7 Dreptul 143. 25 Law no 82/2012 was published in the Official Journal of Romania, 1st Part, no 406/June 18, 2012. 24

Investigation Measures

601

available, on request, to the competent authorities, to be used in investigation activities, for the discovery and prosecution of serious crimes. The law defines as serious crimes the acts stipulated by Article 2, letter e: crimes against EU financial interests, crimes committed by a criminal organization, tax evasion etc. The data stipulated by law must be retained and kept for 6 months starting with the moment when the communication took place. The public communication network providers are obliged, at the request of the prosecuting authority and with the judge’s approval, to send the retained data to them, within 48 hours or, under special circumstances, within 5 days from the request. If there is a decision not to prosecute, the prosecutor is obliged to notify the person whose data was requested within 5 days from the decision.

9. Surveillance in Public and Private Spheres (Acoustic and Visual) The above-mentioned provisions from para 7 apply accordingly also in the case of recordings made in environmental areas, for location and pursuit by GPS or by other electronic means of surveillance in the case of image recordings/video surveillance in public sphere (CCP, Article 91/5). Video recording in the public sphere, with the purpose of protecting the population is carefully considered under the aspect of respecting fundamental freedoms. For the application of the provisions of Directive 95/46/EC and of EC Recommendation no 11750/02/ EN of 2002, the National Supervisory Authority for Personal Data Processing analyses the project of a decision concerning personal data processing through the use of video surveillance. The project establishes the conditions of performing recordings in public spaces, in the public and private spheres, as well as in public access ways for the purpose of preventing and combating crime, assuring the security of citizens and of goods, and monitoring the traffic. Acoustic and video recordings from home surveillance systems are accepted as evidence if the recordings reveal facts or circumstances that could contribute to finding the truth. The surveillance system and the magnetic medium on which the act is recorded, and used for or intended to serve the purpose of a crime, or constituting the product of a crime, are regarded as material evidence within the meaning of CCP, Articles 94 and 95.26

10. Monitoring of Bank Transactions Article 27 of Law 656/2002 for preventing and sanctioning of money laundering stipulates that when there is strong evidence regarding acts of money laundering, or of financing of terrorist acts, for the purpose of collecting evidence or for the identification of the perpetrator, monitoring of bank accounts and of accounts assimilated to them can be ordered. The expression ‘strong evidence’ is not defined by the law, but represents cogent information or data, from which it can be shown without any doubt, that the act in question is being

26

A Laza˘r, Ancheta antifrauda˘ în mediul afacerilor (Bucharest, Lumina Lex Publishing House, 2004) 222.

602 Romania prepared or has been perpetrated. This measure is ordered by the competent prosecutor, who carries out or supervises the criminal prosecution, for a period not exceeding 30 days. For serious reasons, this measure can be extended by the prosecutor through motivated ordinance, each extension not exceeding 30 days (the maximal duration is 120 days). There is no special procedure, the provisions of the criminal procedural code being applied.

11. Tracking and Tracing of Objects and Persons Tracing is requested and ordered for the identification, search, location and apprehension of a person in order to bring him/her before the criminal judicial body, or in order to execute a court decision. Cases when the tracing of a person can be requested and ordered are the following (CCP, Article 493/1): (a)

a preventive arrest warrant could not be executed (a warrant for executing a custodial punishment, an educative measure of placing into a re-education centre, medical hospitalisation or repatriation) because the person against whom one of these measures was taken has not been found; for this case the tracing measure is requested by the police body which has established the impossibility of executing the abovementioned measures; (b) the person has escaped from detention or custody, or has escaped from a re-education centre or from medical hospitalisation; in this case the tracing is requested by the administration of the detention place, of the re-education centre, or of the hospital unit; (c) in order to detect a person who is internationally wanted, about whom there is information that he/she resides in Romania; in this case the right of requesting the tracing rests with the competent prosecutor, according to the law. The tracing is ordered by an order of the General Inspectorate of the Romanian Police. During the tracing procedure a number of activities can be performed in order to identify, search, locate and catch the wanted persons, under the conditions stipulated by the law (CCP, Article 493/3): a) interception and recording of conversations and communications, performed by phone or by any other electronic means of communication, as well as other recordings; b) retaining and handing over of the correspondence and of the objects; c) house search; d) seizing of objects and papers; e) monitoring of bank accounts and of assimilated accounts. The activities stipulated under d) and e) can be carried out only with the authorisation of the prosecutor who supervises the activity of the police, which carries out the prosecution of the traced persons (CCP, Article 4931 para 2 lit c). Security measures are procedural measures aiming at securing movable and immovable goods which belong to the accused or to the defendant and to the civil responsible party, in order for them to be confiscated, for covering the civil damages and for executing a fine punishment (CCP, Article 163), but not for covering the judicial expenses towards the state.

12. Data Mining and Profiling The Ministry of Administration and Home Affairs has a data base, which is exploited by the department for technology of information within this ministry. At the level of the

Investigation Measures

603

Romanian police there is an application called CAMAS, which stores the informational data of all police structures, regarding all types of crimes, including organised crime, corruption and protection of the financial interests of the European Communities. Within this application there is a sub/module called EGI (which keeps the evidence of all criminal groups). This database is managed by the Central Unit for Information Analysis of the Police (UCAI). The prosecutor and the court have the right of direct access to the electronic databases held by the agencies of the state administration. The agencies of public administration which have electronic databases are obligated to collaborate with the prosecutor or with the court in order to insure their direct access to the information of the electronic databases (Art 184/1 CCP). To insure the application of these legal provisions, The Ministry of Justice and the Public Ministry arranged collaboration protocols with the public authorities and institutions which have electronic databases. The services and agencies specialised in collecting, processing and archiving information are obligated to immediately provide the competent Prosecutor’s Office with all the data and information, unprocessed, held with respect to a certain crime, necessary to the evaluation of the necessity of initiating criminal prosecution (Art 66 of Law 304/2004). Pursuant to Article 16/1 of Law no 82/2012, public electronic communication network providers and the providers of electronic communication services for the public are obliged to provide the data retained for a period of 6 months, at the request of the prosecution agencies, of the courts and of state agencies with attributions in the field of national security, formulated according to the provisions of the law. That data will be transmitted within 48 hours and, under special circumstances, within 5 days of the request. The prosecutors and the officers of the judicial police have access, according to their authorization, to classified information. The surveillance performed by the prosecutor also consists of the authorised activities of data collection carried out by undercover agents who have to report the gathered information connected to the preparation and the perpetration of crimes. The surveillance conducted by the prosecutor consists of both the preliminary activity of data collection with a view to initiating criminal prosecution and the activity of criminal prosecution itself.

13. Access to Relevant Premises (‘Crime Scene’) This measure can be applied for any type/gravity of offences when it is necessary to establish the situation of the place where the offence was committed, to find out and settle the traces of the offence, to establish the position and condition of the material forms of evidence, and the circumstances of the offence. To protect the interest of third parties, the criminal investigation body performs the above-mentioned investigation in the presence of assistant witnesses, unless this is not possible (CCP, Article 129). Any criminal investigation act on the premises of one of the public legal persons can be performed only with the approval of the managing board of that legal person or with the authorisation of the prosecutor. In case of flagrante delicto, such approval or the authorisation is not necessary (CCP, Article 204). The prosecutor may give authorisation regarding the performance of any criminal investigation act. This measure is executed by the judicial police officers. An official report is drawn up following the onsite investigation. If the accused or

604 Romania defendant who is held or arrested cannot be brought to the investigation site, he or she is informed by the criminal investigation body that they have the right to be represented, and if they require representation will be appointed (CCP, Article 129).

14. Search and Seizure CCP, Article 99 stipulates the forcible confiscation of things or writs; if the requested object or writ is not voluntarily delivered, the criminal prosecution body (or the court) orders forcible confiscation. During the trial, the order of forcible confiscation of the goods or of the writs is communicated to the prosecutor, who takes measures for its fulfilment through the criminal investigation body. When the person requested to deliver an object or writ such as those mentioned in CCP, Article 98 denies its existence or the fact that they have it in their possession, and if at any time there is evidence that the performance of a search is necessary for the discovery and collection of proofs, a search can be ordered. This measure can be applied for any type/ gravity of offences when it is necessary to take away the objects or writings that may serve as means of evidence in the criminal trial. For seizure, no legal restrictions are stipulated. The home search may be performed between 6 am and 8 pm, and at other times only in case of flagrante delicto, or when the search is to be performed in a public place. A search which began between 6 am and 8 pm may continue during the night (CCP, Article 103). As special measures, the criminal investigation body executes this measure in the presence of assistant witnesses (CCP, Article 104). For the search, in the case of public units and other legal persons, the provisions are supplemented as follows: a) the judicial body proves its identity and, according to the case, shows to the representative of the public unit or to another legal person the authorisation given; b) the confiscation of objects and writings, as well as the search, are performed in the presence of the representative of the unit; c) when the presence of assistant witnesses is mandatory, they may be part of the unit staff; d) a copy of the official report is left with the representative of the unit (CCP, Article 111). The search and seizure ordered during criminal investigation are performed by the prosecutor or by the judicial police, accompanied according to the case, by operational workers (CCP, Article 101). Searches of domestic premises may be disposed only by the judge, during criminal prosecution, upon the prosecutor’s request or during trial. The home search is disposed during criminal prosecution in the council room, without summoning the parties. A body search may be disposed, according to the case, by the judicial police, or by the prosecutor. This authorisation is written and is motivated (CCP, Article 100). An official report is drawn up mentioning the performance of the search and seizure of objects and papers. A copy of the official report is left with the person on whom the search has been performed or from whom the objects or writings have been removed, with the representative, a member of the family, the persons he lives with or a neighbour and, if the case arises, with the custodian (CCP, Article 108). The seizure of objects and papers, as well as the home search are performed in the presence of the person from whom the objects or the writings are taken away, or whose place is searched and, when the person is absent, in the presence of a representative, of a member of the family or of a neighbour, having full capacity of exercise (CCP, Article 104). This measure may not be carried out clandestinely. The defence lawyer is informed about the place and time of the execution of this measure when the search is about to begin, and not before

Investigation Measures

605

this moment, in order to keep the surprise element. The defence lawyer has the right to complain, under CCP, Article 275, to the prosecutor who supervises the activity. The body that performs a procedural act in the presence of assistant witnesses must acknowledge and mention it in the official report (CCP, Article 93). A body search can only be performed by a person of the same sex as the individual subjected to the body search and in accordance with the principle of human dignity. A doctor’s presence is mandatory when the inside of a person’s body is examined. The new Romanian CCP (Article 190 paras 4–7) stipulates that the request for physical examination must be approved by the rights and liberties judge or, in case of an emergency, by the criminal investigation body, through an ordinance which must later be validated by the judge. The physical internal examination of a person’s body or the drawing of biological samples must be performed by a doctor, a medical assistant or a person with specialised medical training, according to the principles of human dignity and private life. 15. On-line Search of Computers The Romanian criminal law makes a difference between computer search (ie search of terminals or work stations belonging to the perpetrator) and online search of computers. The online search of computers is not regulated and in consequence it has no value as legal evidence and it is not applied by the judicial authorities. The measure of immediate preservation of computer data and of data traffic can be ordered for a period of 90 days and can be extended, only once, for a period of 30 days. It ought to be performed in the same conditions as the home search stipulated in CCP, Article 100 et seq. The interception and recording of the communications carried out through computer systems are performed according to the provisions of CCP, Article 911 et seq. These measures can be ordered for a period of 120 days. For the access to computer systems, the interception and recording of communications carried out through computer systems and the search of computer systems, the authorisation is given by the competent judge, according to CCP, Article 911 para 1 and Article 100 para 3. Informing the defence lawyer of the accused /defendant is mandatory only in case of computer search, according to CCP, Article 172. 16. Freezing Security measures are ordered mainly for offences which caused financial losses or for offences that require the confiscation of goods acquired or created as a result of the offence. In this respect, CCP, Article 163 stipulates that the security measures are taken during the criminal trial by the prosecutor or by the court, and consist of freezing movable and immovable goods, by establishing a seizure, in order to repair the damage caused by the offence, and in order to make sure the fine penalty will be executed. The measure, ordered by the prosecutor, can be maintained throughout the criminal trial until a final decision is pronounced, when the court has to decide on the sequestration, according to CCP, Article 353 paragraph 2. According to CCP, Articles 165 and 167 there are two types of sequestration: freezing of movables and immovable goods with the obligation to identify and evaluate them; or freezing of bank accounts, registering the amounts at the disposal of the criminal investigation body on behalf of the accused/defendant. The prosecutor is assisted in this work by the judicial police officers who enforce the sequester ordinance.

606 Romania As a special rule, movable and immovable goods belonging to public authorities, public institutions, legal persons of public interest and public services, cannot be placed under sequester. In the case of corruption offences, crimes assimilated to corruption offences, offences directly connected to corruption and fraud offences affecting the financial interests of the EU, however, the measure is mandatory (CC, Article 145 corroborated with CCP, Article 163). The body that enforces the sequestration draws up an official report of sequester and registration of the mortgage on all acts performed, including a detailed description of the sequestered assets and the specification of their value. The presence of a defence lawyer is not mandatory; nevertheless, he must be informed. 17. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of other Data Collections) This measure can be ordered for any offence stipulated in the CC or in other special criminal laws, according to CCP, Article 96, which stipulates that ‘the criminal investigation body or the court shall request that objects or documents that may serve as means of evidence in the criminal trial be produced’. The professional secrecy of the lawyer cannot be disclosed to the prosecutor in the fight against corruption and organised crime. Banking secrecy and professional secrecy cannot be invoked to the criminal investigation body after the initiation of the criminal investigation, when all the data and information requested by the prosecutor has to be provided, upon written request. Article 16 paras 1 and 4 of the Government Emergency Ordinance no 43/2002 on the organisation and functioning of the National Anticorruption Directorate stipulate that when there is a reasonable suspicion with regard to the commission of a corruption or fraud offence, in order to collect evidence and to identify the perpetrator, the prosecutor can request the submission of financial, banking, accounting or other documents related to bank accounts and accounts assimilated to these. An identical provision is stipulated by Article 15 para 4 of Law no 39/2003 on preventing and combating organised crime. The procedure for the request to produce objects and documents is carried out by the judicial police. The procedure is performed upon a written request of the prosecutor or the judicial police officers (the court during trial). This kind of criminal investigation act is often requested by the judicial police officers, who perform their duties under the direct supervision of the prosecutor. The prosecutor grants authorisation in the criminal investigation stage. The authorisation is given in writing and contains the reasons for which the seizure of objects and documents is needed. The handing in of objects and documents is performed according to CCP, Article 97, on the basis of an official written acknowledgement; more precisely an official report is drawn up, mentioning and identifying in detail the objects and documents handed in.

18. Invoking the Assistance of Experts to Examine Clues According to CCP, Article 116, when, for the clarification of certain acts and circumstances of the case, specialist knowledge necessary, the criminal investigation body may order an

Investigation Measures

607

expert to report on the matter. The criminal law does not stipulate the categories of offence for which an expert is mandatory, with one exception provided by CCP, Article 117: [A] psychiatric expert is mandatory in case of the offence of extremely serious murder, as well as when the criminal investigation body or the court has doubts about the accused or defendant’s mental health.

The main types of expertise required in courts of law are medico-legal expertise, technical expertise, forensic expertise and financial accounting expertise. The expertise is performed, according to CCP, Article 119, by officially authorised experts who are registered with the central office for technical judicial expertise in the Ministry of Justice. The expertise can also be performed by the Institute of Forensic Medicine, the National Criminology Institute and by the laboratory of forensic expertise of the National Inspectorate of the Romanian Police. The prosecutor or judicial police decide the administration of this means of evidence. When there is a danger that certain evidence might disappear or some facts or circumstances related to the case might change, the prosecutor may use the knowledge of a specialist or technician, ordering a technical-scientific ascertainment, according to CCP, Article 112. The prosecutor informs the parties about the objectives of the expertise and about the fact that they have the right to ask that an expert proposed by each of them be appointed, who will take part in the expertise in order to protect their interests, according to CCP, Article 118 para 3 and Article 120 para 1. Also, the parties have the right to make observations regarding the objectives of the expertise and may request their modification and completion. The legal remedy for such situation is provided by CCP, Article 125, which stipulates that: [i]f the criminal investigation body or the court has doubts about the accuracy of the expertise report conclusions, they order a new expertise.

19. Infiltration If there are serious grounds that an offence which cannot be discovered through other means, has been or is going to be perpetrated, investigators with an identity different from the real one may be used in order to gather information (CCP, Article 2241 para 1). Specifically, according to CCP, Article 681: [t]here are serious grounds when from the existing data in the case, emerges the reasonable assumption that the person against whom preliminary acts or criminal investigation acts are performed has committed the offence.

The use of undercover investigators may be authorised in cases of offences against national security, drugs and weapons trafficking, trafficking in persons, terrorist actions, money laundering, money forgery or of other values, corruption offences and other serious offences (CCP, Article 2241). As restrictions, the authorisation for using the undercover investigators is given for an initial period of 60 days and may be extended up to one year only for seriously justified reasons (CCP, Article 224/2 para 2). The undercover investigators are judicial police officers, specially designated by the Ministry of Interior, acting as undercover investigators or as investigators with real identity. The investigators may perform investigations only with the authorisation of the prosecutor

608 Romania who performs or supervises the criminal investigation (CCP, Article 224/2 para 1). The use of undercover investigators can be requested by the judicial police or can be ordered, ex officio, by the prosecutor. All the data and information is included in an official report drown up by the undercover investigator or the investigator with real identity, which may constitute evidence in the criminal case.

20. Controlled Deliveries According to Law no 143/2000 on the prevention and control of illicit drug trafficking and consumption, the supervised delivery procedure can be enforced whenever there is ground and concrete suspicion about the perpetration of an offence regarding the illicit operations with substances placed under national control (drugs, high-risk drugs, precursors and toxic chemical inhalants). The supervised delivery procedure is employed for a period of 60 days and can be extended for seriously justified reasons up to a year, in the same case and with regard to the same person (Article 17 para 6 of Law no 508/2004). For performing supervised deliveries, the prosecutor may authorise the use of undercover investigators for the purpose of revealing facts, identifying the perpetrators and obtaining material evidence (Article 21 para 1 of Law no 39/2003). Mainly, the supervised deliveries may be requested by the specialised structures for combating organised crime within the Ministry of Interior, Border Police, customs or ex officio by prosecutors. Also, in case of joint actions with other states, the supervised deliveries can be requested by rogatory letter issued by the judges or prosecutors from the Members States of the EU or from other states. The conditions required to be met in order to take these measures are the existence of strong evidence or indications that the accused has committed a criminal act. There are serious indications when from the data existing in the case it appears that the person against whom preliminary acts or criminal prosecution acts are carried out, has committed the act (CCP, Article 68/1). The duty to cooperate with the investigative authorities is stipulated by CCP, Article 97 which mentions that ‘any natural or legal person who possesses an object or a document that may serve as means of evidence has the obligation to submit and hand it over to the criminal investigation body or to the court, on the basis of an official report, upon request’. Every person with leading function in one of the units referred to by CC, Article 145, for example public institutions, public authorities or other legal persons of public interest, services of public interest or with control competences, who have knowledge about the perpetration of a crime in that unit, is obliged to immediately inform the criminal investigation body and take measures to preserve the crime traces, the corpus delicti and any other forms of evidence. The same obligation lies with every public servant who notes the perpetration of a crime related to the office where he is fulfilling his duties. There are special measures to protect the interest of third parties affected by this measure. If there are children, protection measures are taken such as placing under tutelage, placing into a family. Security measures are taken as well in order to cover the prejudice. The criminal investigation body must inform the lawyer of the accused/defendant about the performance of these measures (CCP, Article 172). The presence of the lawyer of the accused or defendant is not mandatory. The accused/defendant or any other interested person can file a complaint against the performance of the measure before the hierarchically

Prosecution Measures 609 superior prosecutor, who has to solve the complaint within the 20 days, according to CCP, Article 278, and communicate the solution immediately. The special measures (interception, undercover investigators, supervised delivery) cannot be notified to the suspect or the defence lawyer. According to CCP, Article 278, the prosecutor’s ordinance ordering the use of undercover investigators and supervised delivery can be challenged by the accused person or by the defendant at the hierarchically superior prosecutor, if their legitimate interests have been harmed. They can find out about the measure after its execution, when the criminal prosecution material is presented.

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution The rules for the initiation of criminal investigation are provided by CCP, Articles 221–223 and consist of the information of the criminal investigation body by complaint or denunciation, or ex officio. Any individual or legal person must inform the prosecutor or the competent criminal investigation body when they discover a crime. There is also the possibility that the criminal investigation body is informed ex officio. The prosecutor conducts and checks the criminal investigation performed by the Police or other bodies, and makes sure that the criminal investigation acts are performed in compliance with the legal provisions (CCP, Articles 216 and 218). The orders given by the prosecutor are compulsory for the criminal investigation body (CCP, Article 219). The prosecutor is the only one who decides how to complete the criminal investigation, having exclusive powers in this phase of the criminal investigation. Any person may file a complaint against the criminal investigation acts and measures enforced by the prosecutor if they harmed his/her legitimate interests. The complaint is settled by the hierarchically superior prosecutor (CCP, Article 278). If the complaint is justified the criminal investigation case is reopened and the measure taken by the prosecutor’s act is invalidated.

2. Unilateral Disposal of the Case (Including Remedy Against it) If the informing act or the preliminary acts performed after receiving the complaint or the denunciation lead to one of the cases that impede the initiation of the criminal investigation the prosecutor decides, by resolution, not to initiate criminal action (CCP, Article 228 para 4). Based on CCP, Article 228, the criminal investigation body notified through complaint or denunciation, orders, by resolution, the initiation of the criminal prosecution, when from the content of the seizing act or of the preliminary acts carried out, it doesn’t result one of the cases which hinder the initiation of the criminal action, stipulated in CCP, Article 10, excepting those stipulated at lit b1: a) the act doesn’t exist; b) the act is not stipulated in the criminal law; b1) the act does not have the social danger degree of a crime; c) the act has not been perpetrated by the accused or defendant; d) the act lacks one of the constitutive elements of the crime; e) one of the causes that annul the criminal nature of the act is present; f) the preliminary complaint of the injured person, the authorisation or announcement of the competent body, or any other condition stipulated by the

610 Romania law, necessary to the criminal action is missing; g) amnesty, prescription or death of the perpetrator have occurred, or as per the case, the write-off of the juridical person when it has the quality as perpetrator; h) the preliminary complaint has been withdrawn or the parties have reconciled, or in the case of a perpetrator, irrespective of his discovery as physical person or, even if he is known under his physical data, the identity of the perpetrator could not be established. The criminal investigation may be terminated by cessation or by exemption. In both situations, the prosecutor issues a motivated resolution which is communicated to the person who made the demand, to the defendant and to any other interested person. Against the prosecutor’s resolution deciding to terminate the criminal investigation, by cessation or exemption, the victim or any other person whose legitimate interests have been harmed may file a complaint. The complaint is settled by the hierarchically superior prosecutor, within 20 days, and the solution is communicated immediately to the person who filed the complaint. If the above-mentioned persons are not satisfied by the solution of the complaint filed, they can address to the judge from the court of first instance, the acts and the measures enforced by the prosecutor being subject to judicial control (CCP, Articles 278, 278/1).

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against it) Currently, in Romania a mandatory investigation system for all the offences is applied, as a consequence of the principle of legality typical for the European civil law system. The actual criminal law does not provide any diversionary measures for the criminal trial that allow the prosecutor or the judge to drop the criminal action in certain circumstances. The future CCP, which will enter into force from 2013, stipulates a new discretionary investigation system through the opportunity principle, which will operate together with the mandatory investigation system. Thus, Article 478 of the new CCP stipulates a new diversionary measure, a ‘diversion agreement’, which is an innovative solution that will insure the solving of cases within a predictable and optimal period of time. According to the new CCP, posted on the website of the Ministry of Justice, the ‘diversion agreement’, stipulated at CCP, Article 478, will be applicable for offences punishable by fine or detention up to five years. In this case, the prosecutor may drop the criminal action taking into consideration the circumstances of the offence and the suspect, deciding that the investigation of these criminal offences is not of public interest.

4. Reopening of the Case Closed on Different Grounds Reopening of the prosecution is possible if it is found that the basis on which the prosecutor ended the criminal investigation by cessation or exemption did not, in fact, exist or it disappeared in the meantime. The reopening of criminal prosecution is also possible if the victim or any other person who has a legitimate interest files a complaint against the prosecutor’s resolution deciding not to initiate the criminal action, according to CCP, Article 228, para 6 and Article 2781. Reopening of the criminal prosecution can be ordered by the hierarchically superior

Evidence 611 prosecutor, who is competent to settle the complaint against the prosecutor’s acts. In case the complaint for the reopening of the case is rejected by the hierarchically superior prosecutor, the victim or any other person whose legitimate interests were harmed can address, within 20 days, the competent judge to solve the case in first instance. Thus, reopening of prosecution is also possible if the competent judge admits the complaint.

5. Committing to Trial and Presenting the Case in Court If the prosecutor is aware that the legal provisions that ensure the revealing of the truth have been followed, that the criminal investigation is complete, and necessary evidence exists and has been legally produced, he organises a demand by which he sends the criminal action to the court. The prosecutor, as the representative of the Public Ministry is the only one who can initiate the criminal action. After the prosecutor sends the criminal case to court, by indictment, he is obliged to take part in the court sessions where he can formulate requests, raise exceptions and pass conclusions, according to CCP, Articles 301 and 315, para 1. The prosecutor has an active role in the judicial investigation in order to establish the truth and to ensure compliance with the legal provisions. The prosecutor is free to present the conclusions he considers justified, under the law, taking into account the evidence produced. The prosecutor’s requests and conclusions must be justified according to CCP, Article 316. The participation of the prosecutor in the appeal trial and in the retrial is mandatory according to CCP, Articles 376 and 3852. The prosecutor is obliged to take an active part in the criminal trial, being the only person powered by law to represent the prosecution and to support the indictment, acting as a representative of the public interest, and protecting the order of law and the rights and liberties of the citizens (CCP, Article 315 para 1). There are no specialised bodies that can replace the judicial attributions of the prosecutors before the court of law.

D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence The Romanian CCP of 1968 did not stipulate express sanctions for illegally or improperly obtained evidence; nevertheless, the general provisions in the matter of nullity, which compel courts not to found their decisions on such evidence, were applicable. CCP, Article 64 on the evidence allowed in the criminal trial was modified by the Law 181/2003 which introduced para 2, specifying that ‘illegally obtained evidence may not be used in the criminal trial’. For ‘illegally obtained’ the judicial doctrine and practice refer to the mandatory legal provisions which stipulate the way this evidence is produced. CCP, Article 64/2 sanctions the interdiction against the use of violence, threats, promises or stimuli to obtain evidence. The obtained evidence is also illegal and cannot be used in the case of unauthorised searches, unauthorised recordings of a telephone conversation etc.27 27 Regarding the discharge of unauthorised recordings, see the criminal sentence of the Romanian High Court of Justice, decision no 4177/2005 in A Vasiliu, Nulitatea în procesul penal, practica˘ judiciara˘ (Bucharest, Hamangiu Publishing House, 2006) 210.

612 Romania The theory of the fruit of the poisonous tree has its counterpart in Romanian criminal procedure legislation. The new CCP stipulates at Article 102, entitled ‘dismissal of illegally obtained evidence’, the fact that this evidence may not be used within the criminal trial (para 2). As an exception, these legal provisions don’t apply if the evidence is presented with imperfections regarding its form, or if there are other procedural irregularities which do not generate damage for the redress of which the exclusion of such evidence would be necessary (para 3). Derived evidence is excluded if it was procured directly from illegally obtained evidence and could not have been found in any other way (para 4). Evidence derived from the evidence mentioned at para 2 is not excluded if the illegally obtained evidence is used under the terms of paras 3–5).28 Noteworthy is the fact that in the field of probation, a governing principle is that of the free assessment of evidence.

2. Admissibility of Written Reports Both in the current regulation and in the new CCP, writings can serve as evidence provided that their content shows facts or circumstances which could contribute to finding the truth. Consequently, the Romanian legislation acknowledges written reports in due form of law as evidence. According to CCP, Article 90: [T]he reports passed by the law enforcement agency or by the court constitute evidence. Other reports or determination documents passed by other agencies are considered evidence as well, if stipulated by law.

These reports are means by which an authorised person ascertains directly (ex propriis sensibus) facts and circumstances which can serve in finding out the truth in a criminal case. They are drafted in due form of law. The following categories can pass a report regarding a crime or the circumstances of its occurrence: criminal investigation agencies and prosecutors (CCP, Articles 90, 108, 131, 222, 477); the court and its president (CCP, Articles 90, 299); determination agencies as stipulated at CCP, Articles 214, 215; the Ministry of Administration and Interior operatives specifically assigned to perform prior investigation acts (CCP, Articles 224); the staff of other state agencies with attributions in the field of homeland security, as well as undercover agents (CCP, Article 2241).

3. Status of Evidence Obtained in Other Member States Departing from the principle of territoriality in what concerns the criminal procedure rules, a procedural act performed in a Member State according to the law of that country, is valid before the Romanian authorities. Law 302/2004 on international judicial cooperation in the criminal field, modified and supplemented by Law 224/2006, has brought the regulation at the level convened through the international conventions to which Romania adhered. The request for undertaking criminal procedures addressed to the Romanian judicial authorities is solved, in the case 28 Romania’s new CCP was adopted through the Law 135/2010, published in the Official Journal of Romania No 486, 15 July 2010, to come into full force and effect on a later date.

The Rights of the Suspect/Defendant During Investigation and Prosecution 613 of a criminal investigation, by the prosecutor’s office attached to the court of appeal in the constituency of which the investigated person resides or has been identified. In the case of a trial, the request is solved by the criminal department of the same court of appeal. The court rules and its decision is laid down in an appealable writ within five days after the ruling, which can decide the admission of the transfer and the continuation of the trial according to the Romanian criminal procedure. Foreign decisions recognised in Romania on the basis of a request for recognition before the court of appeal in the range of which the convicted person resides or has been identified, produce the same effects as the decisions rendered by the Romanian courts. Procedural acts requested through international rogatory letter and performed according to the applicable law of the Member State are also valid before the Romanian authorities.

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence Article 23 para 8 of the Romanian Constitution of 1991 acknowledges the presumption of innocence as one of the fundamental rights and freedoms of the citizens under the wording: ‘Until the final sentence is given, the person is considered not guilty’. CCP, Article 52 introduced by Law 281/2003 states that: [E]very person is considered not guilty until their guilt has been established through a final criminal sentence.

The presumption of innocence represents the procedural grounds of the right of defence; it involves the recognition of procedural rights prior to the trial equal to that of the other parties, including the representative of the Public Ministry. This presumption enables the burden of proof to lie with the person bringing the charge, who has the obligation to prove beyond the shadow of a doubt the guilt of the accused or the defendant. The new CCP ceases the use of the word ‘accused’ to denote a party to a trial, and introduces instead a new category, that of the ‘suspect’, a person in respect of whom, following the evidence presented in the case, there is reasonable suspicion that they committed an act incriminated by the criminal law. Maintaining the presumption of innocence, the new CCP mentions that: [A]fter producing the entire set of evidence, any suspicion in shaping the conviction of the judicial agencies is to be interpreted in favour of the suspect or the defendant. (CCP, Article 3 para 2.)

The Constitutional Court stated that the measure of preventive detention, stipulated by the Constitution does not affect the presumption of innocence; nevertheless, any image created by the clothing of the convicted persons which might influence the judges must be avoided. It is thus recommended that arrested defendants be brought to trial in their personal clothes or, if that is not possible, they ought to be brought wearing a different uniform from that of convicted persons.29

29

See Decision No 99/1994 in the Official Journal of Romania, Part I, no 348 of 15 December 1994.

614 Romania 2. The Right of the Defence to Request the Undertaking of Investigative Measures/Acts The defence has the right, among others, to present the judicial agency with written and oral requests, to submit memoirs, to assist in any act of criminal investigation which involves the interrogation and the presence of the accused or the defendant, by formulating objections and complaints regarding the manner of execution. The request for evidence formulated by the defence lawyer cannot be overruled by the judicial agency, if the evidence is conclusive and useful for finding out the truth (CCP, Article 67 para 2). Procedural measures can be taken and evidence can be produced only by the competent judicial agency, according to the legality principle and the ex officio principle; therefore, the defence lawyer cannot perform investigative acts within the entire criminal trial, as this is the exclusive prerogative of the judicial agencies which instrument the case. 3. The Right to Legal Assistance Legal assistance is allowed at any moment during the entire criminal trial, including the criminal prosecution phase, for every participant at the criminal trial (offender, suspect, defendant, witness, expert, victim, plaintiff claiming civil damages). On request, they can be present at the performance of any procedural act which they have the right or the obligation to attend, in the presence of a chosen defence lawyer, on the grounds of the possibility of having a charge formulated against them. During the criminal prosecution, the accused or the defendant’s lawyer has the right to assist at the performance of any criminal prosecution act and he/she can formulate requests and submit statements (CCP, Article 172). The accused or the defendant has the right to be represented by a defence lawyer during the criminal prosecution and the trial, and the judicial agencies are compelled to inform him or her of this right. Legal assistance is mandatory when the accused or the defendant is a minor, committed to a re-education centre or to an educational medical facility, when the minor is detained or even arrested in another case, when the security measure of being committed to a medical facility was taken against him or her, or when they are obliged to undergo medical treatment even in another case, or when the criminal investigation agency or the court deems that the accused or the defendant could not handle his or her own defence, as well as in other cases, as stipulated by law. During the trial phase, the defendant’s legal assistance is also mandatory in the cases where the act committed is punishable by a life sentence or a prison sentence of at least five years. When legal assistance is mandatory, if the accused or the defendant do not choose a lawyer, the court appoints one ex officio (CCP, Article 171 paras 1–4). The right to determine whether the accused or the defendant may not handle his or her own defence rests with the criminal investigation agency in the criminal prosecution phase and with the court in the trial phase. The charge is brought to the detained person only in the presence of a defence lawyer with or without cost. The jurisprudence has stated that mandatory legal assistance is not ensured when the same defence lawyer assists more than one defendant with opposed interests. This can be explained by the fact that the defence provided for one of them would come against another, which would deprive the latter of legal assistance.30 30 See Romanian High Court of Justice, criminal sentence, decision no 1555/2000, Buletinul Jurisprudent¸ ei 2000, 359; it does not apply in the case of a chosen lawyer, because the court cannot overrule the defendant’s

The Rights of the Suspect/Defendant During Investigation and Prosecution 615 In the new CCP the parties and the main trial subjects (including the suspect) have the right to defend themselves or to be assisted by a lawyer, as well as the right to profit from the necessary time and the facilitations for preparing their defence. According to Article 108 of the new CCP, the suspect or the defendant is informed about the following rights stipulated by Article 83: a) the right to refrain from making any statements during the entire criminal trial, being advised that if he or she refuses to make statements they will not be subject to any unfavourable consequences, and any statement made can be used as evidence against him or her; b) the right to consult the file, under the law; c) the right to a chosen lawyer, and if they do not choose one, in cases of mandatory assistance, the right to have one appointed for them; d) the right to propose the production of evidence under the law, to raise exceptions and to formulate conclusions; e) the right to formulate any other requests related to solving the criminal or civil side of the case; f) the right to have a free of charge interpreter when they do not understand, they are not able to express themselves well or they are not able to communicate in Romanian; g) the right to turn to a mediator, in the cases allowed by law; h) other rights stipulated by law. There are no restrictions on the right of defence, the rights of the accused or the defendant stipulated by the current regulations are also guaranteed to them in the new CCP. According to Article 70 para 2 and Article 108 of the new CCP, the accused (suspect) is informed of this right before being interviewed by the judicial agency, after being notified of the act which makes up the object of the case and its judicial setting. Failure to notify this right, both in the current regulation and in the new CCP, has as a consequence the sanction of relative nullity of the documents drafted by the judicial agency, sanction which operates when the accused (suspect) or the defendant has suffered a harm which can be redressed only by the annulment of that document. Failure to ensure the presence of a lawyer with or without cost, in the cases where judicial assistance is mandatory has as consequence the sanction of absolute nullity for the acts of criminal prosecution performed with the violation of these legal provisions.31 The annulment of acts differs according to the trial moment in which the nullity is detected. During the criminal prosecution phase, it consists of the dissolution of the act—following a complaint against the issued act or ex officio—through the rejection of the act by the prosecutor who leads the criminal prosecution or by his/her hierarchic superior. During the trial phase, the sanction varies from case, the two solutions being either the redrafting of the act, or the restitution of the file to the prosecutor for remaking the criminal prosecution. Absolute nullity cannot be removed in any way, as it regards serious breaches, specifically stipulated by law: stipulations referring to the competence according to the field and the quality of the person, to the notification of the court, to its composition, to the publicity of the trial phase; stipulations concerning the participation of the prosecutor, the accused or the defendant’s presence and their assistance by a defender, when they are mandatory as provided by law, as well as to the performance of the evaluation review in the cases in which underage criminals are involved. Absolute nullity can be invoked at any step during

option, Romanian High Court of Justice criminal sentence decision no 1893/1997, Buletinul Jurisprudent¸ ei, 1997, 370. 31 See for a case of a lack of a lawyer, Romanian High Court of Justice, criminal sentence, decision no 737/1997 in Buletinul Jurisprudent¸ei 1997, 366 during the interview of the arrested defendant; decision no 394/1993 in Buletinul Jurisprudent¸ei 1993, 199 during the preventive arrest; decision no 2194/1993 in Buletinul Jurisprudent¸ei 1993, 181 during the presentation of the criminal investigation material.

616 Romania the entire trial (including the criminal prosecution phase), and it can be taken into account even ex officio (CCP, Article 197 paras 2 and 3). Relative nullity attracts the nullity of the act only if it was invoked during the performance of the act, when the party is present or at the first trial with complete procedure when the party was not present. The court takes into account ex officio the breaches of law, at any time during the entire trial, if the annulment of the act is necessary for finding out the truth and for the just solving of the case (CCP, Article 197 para 4).

4. The Right to have Another Person Informed of One’s Arrest The person who was detained or arrested is immediately informed, in the language that he or she understands, of the reasons of his or her detention or arrest, as well as the charge, as soon as possible. The charge is notified only in the presence of a lawyer, chosen or appointed ex officio. When the preventive detention of the accused or the defendant is decided, the judge notifies, within 24 hours, a family member or another person whom the accused or the defendant indicates, of the measures taken, everything being recorded in a report. The detained person can demand that a family member or one of the persons shown above be notified of the measure that has been taken. Both the request of the detainee and the notification are recorded in a report. As an exception, if the criminal investigation agency considers that this would affect the criminal investigation, they inform the prosecutor, who will decide with respect to the notification requested by the detainee (CCP, Article 1371 para 1-3). Romanian criminal procedure legislation does not envisage any restrictions, limitation or attenuation of the person’s right to be informed of their arrest, this right being regarded as a guarantee with a view to ensuring the right of defence. When requiring the detention of the accused or the defendant, the judge has an obligation of quickly informing him/her, without exceeding a 24-hour time span, about his/her right to designate a family member, or other person, whom the judge, during the above-mentioned period of time, informs of the measure that has been taken and then notes it in a report (CCP, Article 1371 paras 2–3). After being confined in a detention centre, the accused or the defendant is informed, among other rights, of his/her right to make private phone calls, including in their mother tongue, under visual supervision, from the public payphones installed in the centre (CCP, Article 82 para 5, Article 47 of Law no 275/2006). The right of the person to be informed of his or her arrest is one of the procedural guarantees recognised in favour of the defendant within the Romanian criminal procedure. The omission to inform about this right, as well as its violation have as consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

5. The Right to Submit Written Statements Romanian legislation in this field ensures the right to submit written statements to the accused (suspect), the defendant, the other parties (the injured party, the civil party and the civil responsible party) as well as to the other participants to the criminal trial

The Rights of the Suspect/Defendant During Investigation and Prosecution 617 (expert, witness etc). The judicial agencies, on the basis of the active role principle, have an obligation to notify every party of this right and to ensure its full exercise. The statements of the accused (suspect) and the defendant made during the entire criminal trial (including the criminal prosecution phase) represent evidence, to the extent that they are corroborated with facts or circumstances which result from the ensemble of evidence of the case. The accused (suspect) or the defendant is notified also of the fact that he or she has the right to refuse making any statements, being at the same time warned that what he or she states can be used against him or her. If the accused (suspect) or the defendant makes a statement, he or she is advised to declare everything he or she knows with respect to the act and the charge. The right of the accused (suspect) and the defendant to refrain from making any statements is also known as the right to silence and it represents a guarantee of every person’s right to express themselves without the risk of self-accusation or that of providing evidence against them. This right enables those concerned to refuse to answer the questions they are being asked with respect to the charge which is brought against them or to give explanations in this respect. The right to silence cannot be used with respect to personal identification information which every person has the legal obligation to present. Once the charge has been formulated against a person within the criminal prosecution phase, according to the principle of the right of defence and that of finding out the truth, the accused (suspect) or the defendant has the right to submit written statements. The accused is informed about this right before being interviewed, after being notified about the act which constitutes the object of the case, its judicial setting and the right to a defence lawyer. An omission to inform about this right, as well as its violation, have as their consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency. The omission to inform about this right associated with the omission to take the accused or the defendant’s statement, the omission to verify his/her defence, respectively to guarantee the right to defence, has as its consequence the absolute nullity of the criminal prosecution acts performed without the defence guarantee, with the consequence that the court returns the file to the prosecutor for the remaking of criminal prosecution (CCP, Article 332).

6. The Right to Ask for a Special Act of Investigation During the entire criminal procedure (therefore during the criminal prosecution phase also), the parties, including the defendant, can produce evidence (CCP, Article 67). Requests for probation can consist of: the interview of a witness, the performance of an observation or an expertise, the verification of concrete circumstances related to the crime which has been perpetrated, the performance of certain audio-visual interceptions and recordings, the supplementation of the evidence produced, the formulation of certain objectives with a view to performing an expertise etc. The parties, including the defendant, can formulate requests for probation during the entire criminal investigation phase, and during the trial phase (only in the court research stage, meaning until the debate stage, when the prosecutor and the parties suggest conclusions regarding the matter of the case). After this court research stage of the trial phase, the formulation of requests for probation is no longer permitted, and the court gives a sentence based on the existing evidence, produced in the court research stage.

618 Romania One of the obligations of the judicial agencies is to produce evidence that acts both to the defendant’s advantage and disadvantage, as they are compelled to clarify the case in all its aspects. If there is evidence of guilt, the accused (suspect) or the defendant has the right to prove the inconsistency of the evidence (CCP, Article 66 para 2). When a charge is brought against a person, as an expression of exercising their function of accusation, criminal research agencies and the prosecutor in the phase of the criminal prosecution are compelled, on the basis of the active role principle, to explain to the accused (suspect) or the defendant what are the trial rights and guarantees that the legislation recognises in his or her favour, and to ensure their full enforcement. Amongst them there is the right to formulate requests for probation. Before being interviewed, the suspect or the defendant is notified, among other things, of the following rights stipulated by CCP, Article 83: the right to propose the production of evidence under the law, the right to raise exceptions and to formulate conclusions, and the right to formulate any other requests which pertain to solving the criminal and civil side of the case. The omission to inform about these rights, as well as their violation, have as a consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

7. The Right to be Informed that his/her Statements may be used as Evidence Law enforcement agencies have an obligation to notify the accused (suspect) or the defendant of his or her right to remain silent. Nevertheless, if he chooses not to make use of this right, anything the accused (suspect) or the defendant declares can be used against him or her. Thus, the judicial agency notifies him or her about the obligation to declare everything he or she knows regarding the act and the charge. Article 83 lit a of the new CCP grants the same right to the suspect or the defendant before the interview (CCP, Article 70). The probative value of the suspect or the defendant’s statements is relative, and they can serve at finding out the truth only to the extent that they are corroborated with facts and circumstances which result from the ensemble of evidence of the case. Suspect needs to be informed of this right before the interview, when they are notified of the charge for the first time, respectively the act and its judicial setting, about the right to a lawyer, as well as about the above-mentioned right. According to the current regulation, as well as the new CCP, the applicable sanction is relative nullity. An initial omission of the judicial police officers to inform, followed by the notification of the accused (suspect) or defendant of this right, before the hearing performed by the prosecutor, resulting in the acceptance to declare, has as a result the correction of the omission and of the legal setting in order to take the statement while respecting the right to defence. Any statement given by the accused (suspect) or the defendant when there has been a failure to inform them about this right, associated with a breach of the right to a proper defence, is struck by absolute nullity, and it cannot be used as evidence during the criminal trial. A new statement can be given in compliance with the legal setting.

8. The Right to a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement Deriving from the right of the accused (suspect) or the defendant to make oral or written statements, including holographs, during the criminal trial, Romanian judicial literature infers the right of the accused (suspect) to request a specific wording of the statements.

The Rights of the Suspect/Defendant During Investigation and Prosecution 619 Obviously, in the case of holograph statements this matter is not an issue. The accused (suspect) and the defendant’s statements are recorded in writing, accurately and completely, and after being read, the statement is signed, a fact which asserts consent with everything that has been signed. Consequently, the wording regards the written form and the exactitude of the facts which have been stated as compared to those recorded. Before interview, the accused (suspect) or the defendant is notified of the committed act, its legal setting, his or her right to representation and to agree or refuse to make statements. If the accused (suspect) or the defendant agrees, he or she is notified of this right, and after the oral account phase and the phase of questions and answers, will move on to recording, reading and signing the statements. An omission to inform the accused (suspect) about this right, as well as its violation, have as their consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

9. The Right to Refer to Documents During Interview During interview, the accused or the defendant may not present or read a previously written statement; nevertheless, he or she is allowed to use written support for the details which are difficult to remember (CCP, Article 71 para 5). The accused or the defendant can refer to the evidence which he or she requests that they be produced by the judicial agency, including writings (CCP, Articles 66, 67). Romanian jurisprudence considers writings slightly more credible and exact, as they are usually performed before committing an act with or without the intent of them serving as evidence in the future. The CCP does not refer expressly to the timeframe in which the accused (suspect) or the defendant needs to be informed of this right. CCP, Article 250 et seq stipulate that before the defendant is sent to trial, the judicial agency has the procedural obligation to ask the defendant to come before them, to inform him or her of the fact that he or she has the right to be notified of the criminal investigation material, at the same time mentioning the judicial setting of the act committed, to ensure the possibility to be immediately notified about the material and then to ask if he or she would like to make any additional statements. The new CCP stipulates at Article 83 lit d, among the rights of the suspect or the defendant: [T]he right to propose the production of evidence under the law, to raise exceptions and to formulate conclusions.

This right is notified to the suspect or the defendant before the interview. The omission to inform about this right, as well as its violation have as consequence, both in the current regulation/new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

10. The Right to Consult Relevant Legal Acts Before hearing the accused (suspect), the judicial agencies have the obligation to inform him/ her about: the crime of which he or she is being accused, its judicial setting and to ensure his or her possibility of preparing and exerting a proper defence (CCP, Article 6 CCP).

620 Romania The accused (suspect) has, in this context, the correlative right to consult relevant legal acts presented by the judicial agencies so that he/she can fully understand the accusation formulated against him/her, and can exert a proper defence.

11. The Right to be Informed About Possibilities of Reconciliation with the Victim The reconciliation procedure is recognised by Romanian legislation in the form of the institution of the parties’ settlement which has to be express, total and unconditional. The settlement of the parties usually occurs in the case of crimes for which the criminal action is initiated through a prior complaint, respectively crimes with a smaller degree of danger (eg assault and battery) and as an exception in the case of crimes prosecuted ex officio: unlawful interference with possession, seduction. In order to produce effects, the settlement ought to be complete and unconditioned, both on the civil and the criminal side. There are no restrictions to this right. Romanian legislation does not expressly stipulate this moment, but it does mention that according to the active role, the criminal investigation agency is obliged to explain to the accused (suspect) or the defendant, as well as to the other parties, their procedural rights. In the criminal investigation practice, the procedural laws are notified to the accused (suspect) or the defendant, before the interview and after he or she is informed of the act which constitutes the object of the case and its judicial setting. The omission to inform about this right, as well as its violation have as consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

12. The Right to be Informed of the Place of Detention The court, admitting the detention proposition, quickly issues the accused or defendant’s arrest warrant. The warrant duly comprises the specifications shown at CCP, Article 151, among which lit i indicates the place where the person arrested will be detained. According to CCP, Article 152 para 1, a transcript of the warrant is handed to the person arrested, he or she being guaranteed the right to be informed about the place of detention. The same provisions are applied for the execution of the warrant which enforces the penalty. The new CCP, in Articles 210 and 228, offers the detained person the right to personally inform or to ask the judicial agency which took that measure to inform a member of his or her family or any other person he or she assigns, about the measure taken against them and about the place of detention. There are no restrictions to this right. The law impels the judicial agencies to proceed ‘right away’ to informing the person about this right, after the warrant which indicates the place of detention is issued. The new CCP stipulates at Article 210 the right to be informed ‘immediately after the detention’. The omission to inform about this right, as well as its violation, have as their consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

The Rights of the Suspect/Defendant During Investigation and Prosecution 621 13. The Right to be Informed of the Charges Once the criminal investigation has started, and before the interview has commenced, the judicial agencies have the obligation to inform the accused (suspect) of the act of which he or she is being accused, its judicial setting and to ensure his or her possibility to prepare and exert a proper defence (CCP, Article 6). There are also other procedural moments which imply the obligation of the judicial agencies to inform the accused (suspect)/defendant of the charge: during the trial phase, on the occasion of the reading of the court notice (the first hearing with the complete procedure), on disposition of the preventive measures and every time the change of the judicial setting is imposed, the extension of the criminal trial. During the criminal investigation phase, according to CCP, Article 6 para 3, the judicial agencies have the obligation to inform the accused (suspect) or the defendant about the act he or she is charged with and its judicial setting, once the criminal investigation has started, as soon as possible and before the interview. According to Article 10 para 3 of the new CCP, the suspect is entitled to be informed, before the interview, about the act for which he or she is prosecuted and its judicial setting. The defendant has the right to be informed as soon as possible about the act for which the criminal action has been started against him and its judicial setting. The omission to notify about this right has as its consequence both in the current regulation and in the new CCP, the sanction of relative nullity of the acts drafted by the judicial agency, sanction which operates if the accused (suspect) or the defendant has suffered a harm which can be redressed only through the annulment of that act. Not respecting this right has in certain cases as a consequence the sanction of absolute nullity for the criminal investigation acts performed with the violation of the above mentioned legal provisions. The judicial practice and doctrine interpreted, in these cases, the legal provisions in the wider sense of the necessity to respect the principle of the right of defence, through corroboration with CCP, Article 6 para 3. The statement made by the accused (suspect) or defendant under the omission to inform about this right and the subsequent acts, associated with the breach of the right to a proper defence are struck by absolute nullity and cannot be used as evidence in the criminal trial. If the file reached the trial phase, it is returned to the prosecutor for completion of the criminal prosecution (CCP, Article 332 para 2).

14. The Access to the File During Pre-Trial Proceedings A principal guideline of the criminal investigation in the Romanian judicial system is the fact that the adversary principle is limited to the needs of finding out the truth. The criminal investigation proceeds in a confidential manner, and its main objective is to find out the truth. Thus, not all acts can be adversarial, because there are certain imperatives of the criminal investigation which have to be balanced against the individual’s right of defence. The adversarial principle is recognised for certain activities, such as establishing the expertise objectives, the lawyer’s participation to the performance of the criminal investigation acts as well as at the end of the criminal investigation, when the investigation agency has to present the accused or the defendant with the criminal investigation material in the presence of the lawyer, being at the same time obliged to take into consideration his or her requests, deciding over them through ordinance.

622 Romania By limiting the adversarial character of the criminal investigation to the acts which ought to be performed with confidentiality, the Romanian legislator considers that the request of finding out the truth in every criminal case is better met. Nevertheless, within the criminal investigation practice, the judicial agency can invest with adversarial character certain acts which they perform, if this way the process of finding the truth is not tempered with. The guarantee of this right stems from the provisions of CCP, Article 250f which allow the individual—through the institution of presenting the criminal investigation material, at the end of the criminal investigation—to become informed about the entire criminal investigation material and to formulate a defence accordingly. During the criminal investigation, the accused (suspect) or the defendant, represented by his or her lawyer, is entitled to assist in the performance of any criminal investigation act, with the exception of special surveillance or research techniques. The absence of the lawyer does not prevent the performance of the criminal investigation act, if there is evidence that he or she has been informed of the date and time of the performance (CCP, Article 172). During the trial, the defendant has all the time to get acquainted with the evidence produced (CCP, Article 294). The new CCP stipulates at Article 83 lit b, among the rights of the suspect or the defendant, ‘the right to consult the file, under the law’. Until the presentation of the criminal investigation material, at the end of the criminal investigation phase, the judicial agencies decide upon the necessity, opportunity and utility of the presentation of the documents which constitute the evidence material to the accused (suspect) or the defendant. Thus, although in the criminal investigation practice he or she has access to relevant judicial documents (the indictment, the expertise reports, the research reports, the witness statements etc), certain acts may remain secret to him or her, until the presentation of the criminal investigation material, at the end of the investigation. During the trial, the possibility of restricting access to any piece of evidence does not exist. The new CCP enumerates restrictively the criminal investigation acts, the performance of which the suspect or the defendant’s lawyer does not have the right to assist, restricting this right: special surveillance or research techniques, IT search, body search or vehicle search in case of flagrante delicto, as well as when the presence of a lawyer would bring prejudice to the right of the other parties or to the main trial subjects, in which case his or her questions can be formulated by the criminal investigation agency. This request is expressly stipulated for the moment of the presentation of the criminal investigation material. CCP, Articles 250–257 regulate the institution of the presentation of the criminal investigation material. This institution pertains to a group of acts aiming at ending the criminal investigation after the interview of the defendant who was notified about the existing evidence and now has the possibility to prepare his or her defence, being aware of the incriminating material. The new CCP stipulates at Article 108 the obligation of the judicial agency to notify the suspect/defendant, before the hearing, of the rights set out at CCP, Article 83, including ‘the right to consult the file, under the law’. The omission to inform the suspect/defendant of this right, as well as its violation have as a consequence, both in the current regulation and in the new CCP, the sanction of relative nullity for the documents drafted by the judicial agency.

The Rights of the Suspect/Defendant During Investigation and Prosecution 623 (a) The Meaning of the Term File The meaning of the term ‘file’ is not defined by the CCP. Nevertheless, the doctrine and the practice understand by it all the acts performed on the occasion of the criminal investigation in rem as well as in personam. (b) Persons who may have Access The criminal investigation material is presented to the accused or the defendant, the defence lawyer (according to CCP, Article 250 et seq corroborated with CCP, Article 6,the lawyer can substitute himself or herself to the rights of the accused or the defendant and can assist at all the acts which concern him or her), and the victim (the CCP does not include express provisions concerning the victim’s access to the file during the procedures which precede the trial, but in the criminal investigation practice, the judicial agency can nevertheless, at the victim’s request, allow his or her access to the file). Romanian legislation does not allow access of other persons to the entire documentation, as the criminal investigation is confidential and non-public. (c) The Moment when such Access is Possible During the investigation, in the final phase of the investigation, access to the file is guaranteed through the imperative procedure of showing the criminal investigation material, stipulated by CCP, Article 250 et seq. The presentation of the criminal investigation material is an institution which marks, on one hand, the fact that the criminal investigation agency has performed all the acts which informed the conviction that the defendant should be sent to trial and, on the other hand, constitutes a guarantee for the exercise of the right of defence of the defendant at the end of the criminal investigation. Both during and after the investigation, the judicial agency can allow access to the file—during the investigation— and can confer a contradictory character to the acts that they perform if this way the activity of finding the truth is not tempered with. At the end of the investigation, the access is guaranteed through the imperative procedure of presenting the criminal investigation material, as stipulated at CCP, Article 250 et seq. During the criminal investigation, until the phase of the presentation of the criminal investigation material, access can be postponed by the judicial agency so as not to interfere with the activity of gathering evidence and finding the truth. (d) The Possibility not to Disclose Certain Documents The prosecutor has the legal possibility of censoring totally or partially the access of the accused (suspect) or defendant, as well as the other parties, to the criminal investigation file or to other acts, in order to avoid tempering with the activity of gathering evidence and finding the truth. At the presentation of the criminal investigation material, the prosecutor is obliged to present the entire file to the accused or the defendant, without divulging the identity of the witnesses with protected identity and of covert operatives, under the law.

624 Romania (e) The Possibility to Make Copies of the File and to Transmit them to other Persons There are no express legal provisions regarding this aspect; although, in criminal investigation practice, the prosecutor can sanction, at the request of the party’s lawyer, the execution of copies of certain acts, such as the act of placing under accusation and the expertise reports, in order to offer the possibility to formulate objections. The file can be copied only after the court has been notified. (f) The Consequences of not Respecting the Above Rules If the obligation to present the criminal investigation material is not respected, the sanction is absolute nullity, being assimilated to the violation of the right of defence. For other situations, regarding the access to the file, not being stipulated expressly by the Romanian CCP, there are no procedural sanctions.

15. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) The right of defence is guaranteed by the following: the granting of procedural rights, especially to the accused (suspect) and the defendant—even before being interviewed— and during the entire criminal trial, such as: the right to be informed about the accusation brought against him or her, its judicial setting, the right to have enough time to prepare and exert the defence. The judicial agencies have an obligation to notify the accused, even before the interview, of the accusation brought against him and prevent ‘blind exploration’ and situations in which the accused, not knowing of what he or she is accused, may selfincriminate; the right of the accused or the defendant to be informed that he or she has the right to a lawyer, before making his or her first statement—this must be recorded in the interview report; in some situations stipulated by law, the accused or the defendant is appointed a lawyer, if he or she did not choose one (CCP, Article 6). During the entire criminal procedure (including the criminal prosecution phase), the judicial procedure is in Romanian. Consequently, before the judicial agencies, the use of the mother tongue is guaranteed to the parties and the other persons called to the trial, but all procedural acts are drafted in Romanian. If one of the parties or the other persons involved in the criminal trial do not understand or do not speak Romanian, the judicial agencies have the obligation to provide an interpreter without cost, in order to guarantee the chance to be informed of all the pieces and the works of the file, to talk before the judge and to formulate conclusions, through an interpreter. These costs are supported by the state (CCP, Article 191). The suspect or the defendant is notified orally of the pieces of the file, but there are no limitations in this sense, regarding the conditions of form (written or oral). Law 178/1997, as modified, stipulates the conditions a person must meet in order to be able to be an interpreter in the Romanian criminal trial. Among these we mention: the person ought to have a bachelor’s degree or equivalent, testifying to his or her competence regarding that language, the person ought to not have had any convictions, etc. The right to a defence lawyer is guaranteed in any phase of the criminal procedure (including the criminal prosecution phase). The judicial assistance of the accused

The Rights of the Suspect/Defendant During Investigation and Prosecution 625 (suspect) or the defendant is mandatory in certain cases expressly stipulated by law and optional, left at the assessment of the accused (suspect) or the defendant, in the rest of the situations, according to CCP, Article 171. The Romanian judicial system provides for obligatory defence. According to CCP, Article 171, judicial assistance is mandatory in the following situations: when the suspect or the defendant is a minor, is committed to a rehabilitation centre or a medical and educational facility, when he or she is detained or arrested in another case, when the security measure of being committed to a medical facility was taken against them, or when they are obliged to undergo medical treatment even in another case, or when the criminal investigation agency or the court deems that the accused or the defendant could not defend themselves. During the trial, judicial assistance is also mandatory in cases where the law stipulates the penalty of life in prison, or prison for at least five years. Refusal of the lawyer does not have any judicial consequences, as an effect of his or her incapacity to decide over the rejection of a lawyer. The right of defence is a procedural guarantee, not a personal one. In the situation of a chosen lawyer, the defendant bears the costs. In the case of an appointed lawyer according to CCP, Article 191, the costs are supported by the state, and if he or she convicted, they will be paid by the defendant on the basis of the sentence.

16. The Right to Silence During the Pre-Trial Procedure The Romanian judicial system provides for the right to silence through the provisions of CCP, Article 70 which establishes the obligation of the judicial agencies that before the interview, the accused (suspect) or defendant be informed about the act which makes up the object of the case, its judicial setting, the right to a lawyer. Before the interview, the accused (suspect) or defendant is informed about his or her right to silence, being at the same time warned of the fact that anything he or she declares can be used against him or her. The right to silence is appreciated in the Romanian doctrine as a guarantee of each person’s right to express themselves, aiming at avoiding self-incrimination or the provision of self-incriminating evidence. The judicial agencies have the obligation of informing the accused (suspect) or the defendant about this right before the interview. The proof concerning the fulfilment of this procedural obligation stands in the drafting of a report also signed by the suspect, which attests to the fact that he or she has been notified about this right. The omission to inform about this right, as well as its violation have as consequence, both in the current regulation and in the new CCP, the sanction of exclusion for the documents drafted by the judicial agency. The sanction of excluding illegal evidence, or evidence that has been disloyally produced operates in the case of a substantial and significant breach in the criminal procedural law, if the equity character of the trial has been damaged. This right allows those in question to refuse answering any questions regarding the charge brought against them or give explanations in this respect. The right to silence refers only to statements. The production of any other evidence does not make the object of the right to silence. The right to silence does not apply in the case of personal identification information, which ought to be divulged, as a legal obligation. Romanian legislation does not provide for the suspect’s obligation to inform the prosecution on the nature of his defence.

626 Romania 17. Rights of Legal Persons in Criminal Proceedings The Romanian Code of Criminal Procedure does not distinguish between the natural person and the legal person with respect to procedural and trial related acts; the legal person has the same trial rights and obligations as the natural person. The French-inspired Law no 278/2006 sanctions the right for the legal person— as a collective subject of law—to stand in the criminal trial as active subject of the crime. This means that the legal person can be held criminally responsible either by itself, or jointly, alongside the natural person who committed the crime. With respect to the quality of active subject of the crime, the legal person is presumed innocent every time there is a criminal complaint against it. It also has the right to remain silent and to withhold any statement during the entire criminal trial, the right to a fair trial, the right to be tried within a reasonable period of time, the right to not be tried more than once for the same crime etc. The law also sanctions the right to defence of the legal person, which includes the right to a trial lawyer during the entire course of the prosecution phase or of the trial, and other trial-related guarantees as well. Thus, the legal person has the right to be informed about the charges brought against it, about its right to consult the file, under the law, the right to be appointed a lawyer; the right to propose the production of evidence, as stipulated by law, the right to raise exceptions and draft conclusions; the right to make any other requests related to solving the criminal and civil side of the case; the right to an interpreter, when they are not able to understand, have trouble expressing themselves or communicating in Romanian; the right to a mediator in the cases allowed by law etc. At the end of the prosecution phase, the legal person also has the right to be fully informed of the entire prosecution material ie they will have the right to get acquainted with all the pieces of the file, as a guarantee of the right to defence. Since the legal person cannot be sent to prison, there are a few distinctions as to the preventive measures which do not apply here. Therefore, the following are not to be found amongst the rights of legal persons: the right to be informed about the measure of detention or arrest, the right to be informed about the reasons of the arrest, the duration of the arrest, the place of detention etc. On the other hand, there are certain trial-related acts that also apply in the case of legal persons ie seizures of objects and writs and searches—the law sanctions the possibility to perform searches at the legal persons’ headquarters, their work points, at their main or secondary headquarters. Also, onsite searches and crime reconstructions can be performed at the legal persons’ headquarters.

17 Scotland LORNA HARRIS CBE

Introduction

S

COTLAND AND ENGLAND were united peacefully in 1603 when Queen Elizabeth I of England died childless and her nephew, King James VI of Scotland, became King James I of England too. In consequence, both countries retained their own separate laws and legal systems, and still do. Scottish criminal procedure, like its English counterpart, is broadly accusatorial, and viewed from continental Europe the similarities between the systems are more obvious than the differences. Significant differences do exist, however, and much could be written about them. Here, however, it is necessary to mention only two. The first is the position of the public prosecutor. Unlike England, where public prosecutors are a recent introduction, Scotland has known public prosecutors since the sixteenth century. Furthermore, the Scottish public prosecutor is a more powerful figure than his equivalent in England—and unlike in England, where the title of ‘public prosecutor’ is shared among several different official agencies, each of which is entitled to bring criminal proceedings in the name of the state, the Scottish public prosecutor is a single unit with a monopoly. The second difference to be mentioned here relates to the sources of the law. Unlike in England and Wales, where the basic rules of criminal procedure lie scattered among a mass of different statutes, most of the basic rules of criminal procedure in Scotland are contained in something that looks more like a continental criminal procedure code: the Criminal Procedure (Scotland) Act 1995.

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure Article 86 TFEU distinguishes between investigation, prosecution and bringing to judgment. The distinction between investigation and prosecution is also found in the Scottish legal system, but not the distinction between these two phases and bringing to judgment. An investigation in this context is a criminal investigation. A criminal investigation is an enquiry by an appropriate authority into whether a criminal offence has taken place, and if so, by whom. Prosecution is the process by which a person or persons charged with committing a criminal offence or offences are brought before a criminal court with a view to establishing their guilt or innocence.

628 Scotland Bringing to judgment is not a separate stage in the Scottish legal context, as the prosecution brings the person accused before the court and there is no separate action required. 2. Sources of Criminal Procedural Law Procedural rules in criminal trials in Scotland are set down in statute. These ensure certainty. The principal statute is the Criminal Procedure (Scotland) Act 1995, in which most of the basic rules are consolidated. Case law, including the case law of the ECtHR and the ECJ, may be used to interpret statutory provisions. 3. Bodies Carrying out Investigation and Prosecution (a) Police The police are the main authority charged with the investigation of criminal offences in Scotland. There are some minor offences which are investigated by other authorities, such as, for example, contraventions of statutory provisions on trading standards and health and safety. These may be investigated by separate investigators, but the prosecution is still passed to the centralised prosecution service for Scotland. (b) Prosecution Service The prosecution service directs the investigation of the Police, and also undertakes a small amount of investigation itself. There are no investigative judges or specialised agencies involved in investigations in the Scottish legal system. The police initiate all investigations into criminal offences, with the minor exception of offences mentioned above. In the case of particularly serious offences, such as murder, the lawyers in the prosecution service are involved from the outset, and can direct particular lines of enquiry. But the police remain the main investigative agency. The Crown Office and Procurator Fiscal Service is the sole prosecuting authority in Scotland. The prosecutor determines the charges and forum for prosecution of those charges. As has been indicated above, the division of labour depends on what crime/offence is being investigated. But, for the vast majority of crimes, the police are the only authority with power to investigate. 4. Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principle The police will investigate a case if they suspect that a crime has been committed. The distinction between suspicion and serious suspicion is unknown in our law. Prosecution will not be initiated in Scotland unless the prosecutor is satisfied there is a sufficiency of credible and reliable evidence to establish by ‘corroborated proof ’ that the accused committed a crime known to the law of Scotland. In such circumstances the prosecutor may raise proceedings if it is in the public interest to do so.

Investigation Measures 629 Prosecution remains discretionary. Factors such as public interest will affect the decision whether to prosecute. There is no publicly available document outlining such considerations in Scots law. The prosecutor is formally seized of the case at the point at which the formal charge has been made. As has been mentioned already, however, in particularly serious cases the prosecutor may have become involved at an earlier stage, and may have been advising the police throughout the investigation. The prosecutor remains seized of the matter until there is a decision of guilt or innocence by the court. He will further remain seized of the case if the decision of the court is appealed, and will retain control of the case until the final determination of the case. The sheriff court, where most cases are heard, has two separate jurisdictions: one where the sheriff sits alone, without a jury, and is restricted in his sentencing power, in most cases, to six months’ imprisonment. When the sheriff sits with a jury of 15 people, he can sentence up to five years’ imprisonment. For the most serious cases, the High Court (a judge and jury) can sentence to more than five years, although obviously it can sentence to lesser terms too. The decision as to which court is appropriate is one for the prosecutor only, and cannot be appealed.

5. The Status of the Accused/Defendant There are no rules affecting the status of such persons, until they are charged, as there is no official status of ‘suspect’ in Scots law. The difference between a suspect and a defendant within the Scottish system is that a suspect has not been charged. A suspect becomes an accused person, or defendant, when he is charged with a crime or summonsed to attend court. At the stage of charge/summons, the person acquires certain rights.

6. Specialised Procedure for Financial Criminal Investigations There is no specialised procedure for financial criminal investigations, which are treated as any other crime. A specialised prosecution unit with appropriate training and skills deals with such crimes. The procedures used by this unit are the same as for any other crime, however. This special unit will become involved when it is thought likely that an application to the court for confiscation under the proceeds of crime legislation will be made in the event of a conviction.

B. INVESTIGATION MEASURES

1. Formal Designation as a Suspect There is no formal designation as a suspect within the Scottish legal system. It is merely a term used in its normally understood meaning to describe someone whom the police think may have committed a crime, and whom they may be questioning in relation to that

630 Scotland crime. As explained above, a person moves from being a suspect to a defendant when he is formally charged with an offence. A suspect has no duty to cooperate with investigating authorities, in the sense of being obliged to answer questions or furnish information, but there are penalties for obstructing the police, as well as for failing to attend as a witness to a crime at formal interview with the prosecutor during his independent investigation of cases involving serious criminal conduct.

2. Questioning the Suspect Pre-charge A suspect may be questioned by the police pre-charge. There are strict rules on the limit of questioning after charge and before trial however. When a person still has the status of suspect, an informal status in our system, questioning is permissible. If the person is a suspect, he should be cautioned before any questions are asked. If he is just a possible witness, no such caution is necessary. This applies regardless of the gravity of the alleged offence. There are no rules that restrict the extent of questioning by the police, although such questioning must be objectively viewed as fair and proportionate to the criminal conduct under investigation. Failure by the police to observe that requirement may lead to the court finding the evidence inadmissible and not able to be used in evidence. As above, the suspect is under no duty to cooperate with the authorities. However, where they have reasonable grounds to suspect that a person has committed or is committing a crime, the police may require the person to tell them his name, address, date and place of birth and nationality, and to stay with the police until they verify the information the person has provided and any explanation offered by the person. If the person is detained or arrested, the police may take samples of hair, fingernail cuttings and scrapings as well as mouth swabs and fingerprints, palmprints or print or impressions of any external part of the body. Where pre-charge questioning takes place the police may either note in writing the record of the interview or, more likely in cases of serious criminal conduct, both tape- and videorecord the interview. The suspect is entitled to have a named person and lawyer advised he is detained for interview. Following a decision of the Supreme Court in October 2010, there is now a requirement that a defence lawyer be present/involved both prior to interview and during the interview. The decision in Cadder1 resulted in emergency legislation in Scotland, and the provisions in this are now contained in the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. With regards to providing assistance of a nonlegal nature to a suspect or third party, there is no statutory provision for interpretation for a suspect but this is routinely provided. A person who requires a support person to be present during interview, due to mental or other incapacity, will be entitled to have such a person present. Failure by the police to provide such assistance will likely render any resulting evidence, such as a confession, inadmissible as evidence before the court. In all cases it is the duty of the trial judge at common law, to ensure a fair trial. The judge would be able to exclude evidence unfairly obtained in the exercise of that duty.

1

Cadder v HM Advocate [2010] UKSC 43; [2010] 1 WLR 2601.

Investigation Measures 631 There is no provision for judicial review of such decisions. However, a failure to provide an interpreter or other assistance in certain circumstances may render evidence inadmissible. Admissibility will be decided by the court in accordance with the rules of evidence.

3. Interrogation of Witnesses in the Investigation Stage (Including Complainants/ Injured Party) The police have a duty to investigate crime. They can interview witnesses as they see fit, both to establish whether a crime has been committed, and to determine who has committed a crime. Thus, police may interview witnesses regardless of the gravity of the crime suspected. There are limits to the extent to which husbands and wives may be asked questions about the conduct of their partners, the exception being where one is the alleged victim of a crime of violence committed by his/her spouse. Apart from that, there are no statutory limits on how the police conduct their investigations. In practice, the police would not conduct interviews in the middle of the night. However, unlike other jurisdictions, there are no statutory limits on when the police may make enquiries—even those that include search and seizure measures at residential premises. Neither an accused person nor a witness can be compelled to give evidence that may incriminate himself. There is no statutory exception in Scots law to exempt professional material from examination, but to do so the prosecutor will require a search warrant order from the court. There is no general statutory period of prescription of crime in Scotland unless the statute that creates the offence provides for that. As most crimes in Scotland are founded in the common law, the majority of criminal conduct in Scotland has no time prescription. Material covered by legal privilege may not be seized. Witnesses commit a criminal offence if they fail to attend when required by the prosecutor during the investigation. However there is no statutory requirement by law to cooperate with the police or prosecutor. Exceptionally the prosecutor may require the witness to attend court before the trial process itself and give a statement before the court. The questioning of witnesses may be noted, videoed and/or tape-recorded by the police at their discretion (similarly, by the prosecutor, if they so wish). Any interview of a witness before the court will be recorded in writing and the witness required to sign the statement before the judge. The witness is entitled to 48 hours’ notice of a requirement to attend at the prosecutor to provide a statement. There is no notification requirement in relation to providing a statement to the police. A witness is not entitled by law to have a lawyer present at interview either with the police or prosecutor. If giving a statement at the request of the prosecutor before the court, the witness may have a lawyer present at the discretion of the court. There is no statutory provision to provide assistance to a suspect or third party in an interview situation, but it is provided as otherwise the result of the interview may be rendered inadmissible as evidence, as having been obtained unfairly. Ultimately, the court hearing the case will rule on any measure taken, its fairness, and whether any lack of fairness may cause prejudice to the proceedings.

632 Scotland 4. Arresting the Suspect and Detention for Questioning Where a police officer has reasonable grounds for suspecting that a person has committed or is committing a crime, the police officer may arrest or detain the person. If those grounds are challenged at trial, they are assessed objectively by the court but are viewed subjectively of the information the police officer had at the time of arrest or detention. A person may be detained where there are reasonable grounds to suspect the person has committed a crime punishable by imprisonment. There are no rules that restrict the extent of the questioning by the police, although such questioning must be objectively viewed as fair and proportionate to the criminal conduct under investigation. Failure by the police to observe that requirement may lead to the court finding the evidence inadmissible and not able to be used in evidence. The detained or arrested person is under no duty to cooperate with the authorities. However, where the police have reasonable grounds to suspect the person has committed or is committing a crime, the police may require the person to tell them his name, address, date and place of birth and nationality, and to stay with the police until they verify the information the person has provided and any explanation offered by the person. If the person is detained or arrested by the police, the police may take samples of hair, fingernail cuttings and scrapings as well as mouth swabs and fingerprints, palmprints or prints or impressions of any external part of the body However the detained or arrested person will be cautioned that anything they do say may be noted and may be used in evidence. All arrests are documented by the police. Questioning after arrest will take place in a police station where the police may either note, audio- or video-record the interview with a detained or arrested person. There are no notification requirements for the detained or arrested person other than the caution previously mentioned. The detained person must be notified of the suspicion that gave rise to the detention, the general nature of the offence for which he has been detained and the reason for the detention. See section B.2 for the position on questioning, and access to legal advice, in Scotland following the decision in Cadder in the Supreme Court in October 2010. There is no judicial oversight of arrest and post-detention questioning of a suspect although the court will always have regard to issues of fairness as far as they are said to affect the resultant evidence obtained by interview.

5. Pre-Trial Custodial Detention For the purpose of this section, ‘pre-trial detention’ is taken to mean detention post first appearance in court. The question could be taken to refer to prolonged detention post-arrest, and before court appearance, but there is no such prolonged detention in Scots law. Once a person is charged, he is brought before the court, as soon as possible (in most cases this means the next day, although courts in Scotland do not sit on Saturdays and Sundays or Bank Holidays). It is then a matter for the court to determine whether the person should be released on bail pending trial, or whether he should remain in custody. Bail is available for all crimes in Scotland. The court must determine the question of bail having regard to the nature of the offence, the previous criminal history of the accused, in particular his UK and foreign previous convictions, whether he has been entrusted before to the court by way of court order and whether he has observed the terms of those orders.

Investigation Measures 633 The court must determine the question of bail or remand in custody having regard to whether the person poses any substantial risk to the public and whether there are special conditions of bail that would safeguard the public interest and safety, is likely to commit any further offence, likely to interfere with or intimidate witnesses or fail to attend future sittings of the court. The standard bail conditions, when bail is granted, are that the person does not commit any offences while on bail, does not interfere with or intimidate witnesses and attends all sittings of the case. Extra conditions, such as not to contact certain people, to abide by a curfew, or geographical restrictions, can be imposed where the court considers them necessary. There are not normally any special rules for financial investigations, although it would be possible to impose as a condition of bail that a suspect does not undertake particular financial dealings. If the suspect is not detained, then he can be released subject to certain conditions imposed by the court. A person accused of a violent or sexual offence, or of drug trafficking who has a previous conviction for that, will only be granted bail in exceptional circumstances. The process for seeking remand in custody is that the prosecution seeks to persuade the court that the remand in custody or any special conditions of bail are necessary. However, the court must also hear the defence’s submissions on the issue. The decision is made verbally, and endorsed in writing, with the accused signing the bail order. The court must explain to the accused the conditions of bail, the consequences of any breach by him of the conditions of bail and the need for him to reside at a particular address. Such matters are subject to review, in the sense that a right of appeal exists in favour of both the prosecutor and the accused. The prosecutor may also subsequently seek a review of bail separate from an appeal where material information not available at the time the court considered the question of bail is received. As the suspect has to be before the court for detention to be considered, there are no notification requirements. If the suspect has instructed a lawyer, than the lawyer will need to be informed of the time and date of the hearing. The defence lawyer will have the opportunity to consult his client before a hearing which will decide whether or not a person should be detained in custody. An interpreter will be present in court if the suspect cannot understand English. There is no statutory requirement for this although at common law it is deemed necessary. It is not necessary to provide interpretation for third parties.

6. Interception of Postal Communications (Letters) The Regulation of Investigatory Powers Act 2000 (RIPA) applies to the interception of communications taking place over public postal services and over both public and private telecommunications systems and the investigation of electronic data. There is no prescribed degree of suspicion before the measure may be sought, but regard will be taken to the purposes referred to in the following paragraph. Scots law does not prescribe the types of offences for which interception may be used as investigative tool. However, authorisation will only be granted where it is necessary on the following grounds; (a) for the purpose of preventing or detecting crime or of preventing disorder; (b) in the interests of public safety; or (c) for the purpose of protecting public health.

634 Scotland It will additionally be available for a serious crime, which for the purposes of interception is defined firstly where the sentence available on conviction, for a first offender over the age of 21, is three years’ imprisonment or more, and secondly where the crime either involves violence, results in substantial financial gain or is committed by a large number of persons, pursuing a common purpose. There are some general considerations on the confidential holding of confidential private information, information from journalistic sources and those from the young or vulnerable all provided for within codes of practice. Communication between a solicitor acting in a professional capacity and his client will generally be regarded as confidential. In general, communications between professional legal advisers and their clients will be subject to legal privilege unless they are intended for the purpose of furthering a criminal act or to obtain advice thereon. Legal privilege does not apply to communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably). Legally privileged communications will lose their protection if, for example, the professional legal adviser is intending to hold or use them for a criminal purpose. But privilege is not lost if a professional legal adviser is properly advising a person who is suspected of having committed a criminal offence. The concept of legal privilege applies to the provision of professional legal advice by any individual, agency or organisation qualified to do so. The Regulation of Investigatory Powers (Scotland) Act 2000 does not provide any special protection for legally privileged information. Nevertheless, such information is particularly sensitive and any source which acquires such material may engage Article 6 of the ECHR (right to a fair trial) as well as Article 8. It is required by the Code of Practice made under this Act that the authorising officer take into account the risk of intrusion into the privacy of persons other than those who are directly the subjects of the operation or investigation (collateral intrusion). Measures should be taken, wherever practicable, to avoid unnecessary intrusion into the lives of those not directly connected with the operation or investigation. Authorisation is sought on application by a chief constable of a Scottish police force, a commissioner of Her Majesty’s Revenue and Customs and the Directors General of the Scottish Crime and Drug Enforcement Agency and the Serious Organised Crime Agency, but only for the purpose of preventing or detecting serious crime in Scotland. Authorisation of interception warrants comes from the Scottish Ministers, who can only issue such warrants where they are exercisable in or as regards Scottish jurisdiction. The warrant must be written and signed and record details such as date of granting and any time limit placed on the exercise of the measure. An emergency procedure is available whereby a senior official, rather than the Secretary of State, is enabled to issue a warrant. In such a case, it will be valid for no more than five days. At the end of that period, a warrant may be applied for in the normal fashion. An appeal may technically be possible where the person is aware of the measure but given its nature and intent it is not unreasonable to assume they will not. As in England, the product of the measure is inadmissible as evidence as a matter of law before the courts; in other words, intercepts may be used for gathering intelligence, but not, as such, for securing convictions. However, the measure is not subject to any form of judicial review. There is no notification to the subject of the enquiry, but there will be on the data provider who will receive the warrant (where the interception is of telecommunications data). Additionally, any person who grants or cancels authorisation must notify that fact to an Interception Commissioner. The notice must be in writing and must be given to the

Investigation Measures 635 Interception Commissioner as soon as reasonably practicable after the authorisation was granted or cancelled. The special body in charge of controlling the execution of this measure consists of those acting under the direct authority and operational control of the chief constable, directors general of the Scottish Crime and Drug Enforcement Agency and the Serious Organised Crime Agency (Scotland). Oversight is provided by the Intelligence Commissioner.

7. Interception of the Contents of Telecommunications (Content Data) and Monitoring of Telecommunication Traffic Data For both of these, the legal regime is the same as the one governing interception of communications, discussed above.

8. Surveillance in Public and Private Sphere (Acoustic and Visual) The Regulation of Investigatory Powers (Scotland) Act 2000 provides a statutory framework for three distinct forms of surveillance: (a) directed surveillance; (b) intrusive surveillance; and (c) the conduct and use of covert human intelligence sources. Surveillance is directed if it is covert but not intrusive and is undertaken: (a) for the purposes of a specific investigation or a specific operation; (b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and (c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this act to be sought for the carrying out of the surveillance. Surveillance is intrusive for the purposes of the mentioned act if, and only if, it is covert surveillance that: (a)

is carried out in relation to anything taking place on any residential premises or in any private vehicle; and (b) involves the presence of an individual on the premises or in the vehicle or is carried out by means of a surveillance device. Surveillance is not intrusive to the extent that it is carried out by means only of a surveillance device designed or adapted principally for the purpose of providing information about the location of a vehicle. Surveillance which: (a)

is carried out by means of a surveillance device in relation to anything taking place on any residential premises or in any private vehicle; but (b) is carried out without that device being present on the premises or in the vehicle,

636 Scotland is not intrusive unless the device is such that it consistently provides information of the same quality and detail as might be expected to be obtained from a device actually present on the premises or in the vehicle. A person is a covert human intelligence source if the person: (a)

establishes or maintains a personal or other relationship with another person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c) below; (b) covertly uses such a relationship to obtain information or to provide access to any information to another person; or (c) covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship. Under the Act, (a)

surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place; (b) a purpose is covert, in relation to the establishment or maintenance of a personal or other relationship, if and only if the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose; and (c) a relationship is used covertly, and information obtained is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question. There is no absolute restriction on what types of offences interception may be used in relation to the investigation of. However, authorisation will only be granted where it is necessary on the following grounds; (a) for the purpose of preventing or detecting crime or of preventing disorder; (b) in the interests of public safety; or (c) for the purpose of protecting public health. It will additionally be available for a serious crime, which for the purposes of interception is defined firstly where the sentence available on conviction, for a first offender over the age of 21, is three years’ imprisonment or more, and secondly where the crime either involves violence, results in substantial financial gain or is committed by a large number of persons, pursuing a common purpose. In all other respects also, the same considerations and restrictions apply as set out in section B.6, except in respect of authorisation. Authorisation is applied for by an officer of the appropriate rank of the agency concerned. It can be granted by those whom Scottish Ministers have designated under secondary legislation as appropriate persons to grant such authorisations within the particularly prescribed agency which are police forces, the Scottish Crime and Drug Enforcement Agency and Serious Organised Crime Agency (Scotland) as well as other designated public bodies. However that relates only to directed surveillance and the use of covert human intelligence sources. Authorisation of intrusive surveillance can only be granted by a chief constable of a police force or the Director General of the Scottish Crime and Drug Enforcement Agency

Investigation Measures 637 for the limited purposes of preventing or detecting serious crime or the Director General Scotland of the Serious Organised Crime Agency. The authorisation is in writing and the reasoning must be noted. Rules are provided for by the Code of Practice. In cases of urgency, for intrusive surveillance, where neither the chief constable nor his designated deputy are able to authorise intrusive surveillance, then an application for authorisation may be made to a person holding the rank of deputy chief constable or assistant chief constable. Otherwise an authorisation by the relevant designated person of the relevant agency may be made on an oral application but such an authorisation will cease after 72 hours unless a renewal is granted. Authorisation for such a measure is granted in writing. The document records the information required by the Code of Practice and held by the relevant designated authority of the agency, namely: the reasons why the authorisation is necessary in the particular case and on the grounds (eg for the purpose of preventing or detecting crime) listed in section 7(3) of the RIP(S) Act; the reasons why the authorisation is considered proportionate to what it seeks to achieve; the purpose for which the source will be tasked or deployed (eg in relation to an organised serious crime, espionage, a series of racially motivated crimes etc); where a specific investigation or operation is involved, nature of that investigation or operation; the nature of what the source will be tasked to do; the level of authority required (or recommended, where that is different); the details of any potential collateral intrusion and why the intrusion is justified; the details of any confidential information that is likely to be obtained as a consequence of the authorisation; and a subsequent record of whether authority was given or refused, by whom and the time and date.

9. Monitoring of Bank Transactions In a confiscation investigation, there must be reasonable grounds for suspecting that the person whose bank account it is desired to monitor, has benefited from his criminal conduct. In the case of a money laundering investigation, there must be reasonable grounds for suspecting that the person has committed a money laundering offence. For any investigation, there must be reasonable grounds for believing that the customer information is likely to be of substantial value to the investigation, and that it is in the public interest for the bank information to be provided. The measure can only be applied to the person subject to the criminal investigations. The measure can last for only 90 days, but further applications may be made. The order may be sought in connection with confiscation or money laundering investigations. The Proceeds of Crime Act 2002 clearly states that it may be used only in a confiscation investigation or a money laundering investigation. So if there has been a financial gain to the offender, it can be used, but only if there is a confiscation or money laundering investigation. There is no specific offence for failure to cooperate with the investigative authorities, but it would be contempt of a court order to fail to comply, and would be dealt with accordingly under the common law.

638 Scotland The measure is executed by the police, but requires the authorisation of a court. Such authorisation will be applied for by the prosecution, and if authorisation is given, it will be in written form without reasoning, although reasoning would have to be given by the prosecution making the application. The measure is always recorded in both the court records and the written order itself. There would be the possibility of an appeal, although this measure is usually applied for without the knowledge of the suspect, and therefore appeals are unlikely. There are provisions for discharge or variation of the order. There are no notification requirements where the monitoring of bank accounts is concerned, as the measure would normally be executed without the knowledge of the account holder. The measure may also be undertaken before there is any defence lawyer appointed. There are provisions for the variation and discharge of the order. Application for variation or discharge may be made by any person affected by the order. 10. Tracking and Tracing of Objects and Persons This is understood within the context of domestic enquiries. There are central records of persons, property ownership and vehicles. This measure can be applied for any type/ gravity of offence, and there are no restrictions on its use, as these registers are public with the exception of those for vehicles. The police financial investigation units have access and agreements with various financial organisations. There are no special measures to protect the interests of third parties affected by the measure apart from the requirement by banks to have a domestic search warrant prior to releasing information on a person’s bank account. There is only a duty to cooperate with investigative authorities if a search warrant has been granted by the court on the application of the prosecutor. Authorisation must be sought by the prosecutor from the court, and any authorisation granted will be in writing. If a search warrant is granted at the request of the prosecutor, it will be executed by the police. The prosecutor remains in charge of controlling the execution of the measure by the police. Judicial review of the measure is possible. The person may also make a separate application to have the search warrant suspended where there is evidence the warrant was initially granted as an abuse of process. 11. Data Mining and Profiling The question is understood to relate to the tracking of particular patterns within data recovered. There is no fixed set of rules for such investigations, which are undertaken as part of normal investigations into offences of any type or gravity without restriction. The measure is executed by the prosecutor who has oversight and direction of the enquiry. There is no duty to cooperate with investigative authorities; the prosecutor may ask the police or an expert to carry out an analysis of data such as bank transactions or a witness from the institution which has provided the information. The police must follow every lawful instruction of the prosecutor, but otherwise there is no requirement to cooperate.

Investigation Measures 639 No authorisation is required for the measure, but it will be documented in writing. It is not required that a defence lawyer be present or involved at the execution of the measure, but if the analysis is to be used as evidence then the defence are entitled to make their own enquiries.

12. Access to Relevant Premises (‘Crime Scene’) The scene of a crime comes under the authority of the prosecutor especially in serious cases such as murder. However the police will ordinarily exercise control over a crime scene and permit and restrict access as necessary without recourse to the prosecutor. This will occur regardless of the seriousness of the crime or its type, and there are no special rules or requirements of law. There are no recognised special forms of this measure, however, if the crime scene is no longer designated as such, and the police need to have renewed access they can do so either by consent of the occupier or person who has control over the place or by order of the court following an application by the prosecutor. There is no duty to cooperate with investigative authorities unless there is an order of court where a criminal offence of obstructing the police may then occur. There is an offence at common law of obstructing the police, which could be applied at any stage. Authorisation is only required if a court order is necessary, due to circumstances detailed in the preceding paragraph. If a court order is necessary for those reasons, then the prosecutor will apply to the court for authorisation to be granted, which will be done in writing. There is no judicial review of such a decision, but the defence may, subsequent to the search, seek to suspend the court order and prevent the results of the enforcement of the order being used in evidence at any trial. Any court order will be recorded in the court record. Normal police enquiries at the scene of a crime, which have not required a court order, will be recorded by the police in their notebooks. It is not necessary to inform anyone of the measure’s existence; search and seizure under court order or search and seizure by consent can take place at any time. No lawyer need be present, and there is no statutory requirement that an interpreter be provided if the first language of the person concerned is not English. However, an interpreter would usually be provided in such circumstances.

13. Search and Seizure On arrest, the police have the power to take fingerprints, palm prints and other impressions. If a senior police officer of at least the rank of inspector agrees, the police may additionally take the following samples, using reasonable force if necessary: body hair samples (other than pubic hair), finger or toe nail clippings, blood or other body tissue gained by swabbing or rubbing, and saliva that can be swabbed from inside the mouth. Blood samples can also be taken, but only if there is court warrant to do so. If the arrest has taken place following a warrant, then an intimate body search is also permitted, but not an invasive search. A special warrant has to be obtained to carry out an invasive search, and this has to be carried out by a medical practitioner.

640 Scotland The prosecutor may make application to the court to search premises. The prosecutor must satisfy the court that there are reasonable grounds to suspect that the items which are sought to be seized are believed to be in the premises the prosecutor seeks to have searched. The court will also have regard to the proportionality of such a request for search and seizure, but while the court may question the prosecutor on the importance and relevance of the item sought to be seized within the context of the criminal enquiry, the prosecutor need not comply and there is a degree of discretion afforded the prosecutor. There are no restrictions on the measure, and there are no special measures to protect the interest of third parties affected by this measure, other than the court being satisfied as to its proportionality. Anyone who is on the premises that are searched must comply with the search and interference with the police search constitutes an offence. The measure will be executed by the police on behalf of the prosecutor. The prosecutor will have had to apply to the court for authorisation, which, if granted, will be written. There is an emergency procedure when there is not time for authorisation to be sought; thus items can be seized and search effected where there is true emergency such as a reasonable fear that unless the item is seized it may be destroyed or put beyond the reach of the authorities. The measure will be recorded in writing. There are no notification requirements as a search warrant and search of the person arrested may be at any time. As before, interpreters will be provided if required, although there is no statutory requirement for them to be so provided. 14. On-line Search of Computers In relation to on-line search of computers, the rules are the same as those for the interception of letters at section B.6 above. In addition, the prosecutor may make an application for a search warrant either under statute or common law from the sheriff of the jurisdiction where the premises sought to be searched are located. Such an application may also include a request to search and seize computers within the premises and may also include a request that computer analysts be present at the search to enable them to search the hard drive of the seized computer or take mirror image copies of the hard drive while in the premises. This can be especially effective where the premises requested to be searched under an international letter of request are occupied by a foreign national and the evidence sought to be seized from the computer is in a language other than English. In such circumstances, the court can grant authority for foreign police officers or analysts to be present to search and examine the seized computer and avoid its physical transfer.

15. Freezing The degree of suspicion necessary for the executing officer to apply this measure is set down in sections 119 and 120 of the Proceeds of Crime Act 2002. The relevant provisions are as follows: 119. Conditions for exercise of powers The court may exercise the powers conferred by section 120 if any of the following conditions is satisfied.

Investigation Measures 641 The first condition is that— (1) A criminal investigation has been instituted in Scotland with regard to an offence, and there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct. (2) The second condition is that proceedings for an offence have been instituted in Scotland and not concluded, and there is reasonable cause to believe that the accused has benefitted from his criminal conduct. (3) The third condition is that an application by the prosecutor has been made under section 104, 105, 111 or 112 and not concluded, or the court believes that such an application is to be made, and further that there is reasonable cause to believe that the accused has benefitted from his criminal conduct. (4) The fourth condition is that an application by the prosecutor has been made under section 106 and not concluded, or the court believes that such an application is to be made, and further that there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the accused’s benefit exceeds the relevant amount (as defined in that section). (5) The fifth condition is that an application by the prosecutor has been made under section 107 and not concluded, or the court believes that such an application is to be made, and further that there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section). 120. Restraint orders etc. If any condition set out in section 119 is satisfied the court may make an order (a restraint order) interdicting any specified person from dealing with any realisable property held by him.

These measures are available in relation to any offence of any type or gravity from which the offender is believed to have benefitted. There are no restrictions, but it is always subject to the supervision of the court, so may be reviewed on application by any person affected by the order. There are special types of the order for immoveable property, but this is to ensure that the order is effective against such property. The interests of third parties affected by the measure are protected by the fact that persons affected by the order may apply to the court for variation or recall of the order. Authorisation is required; it will be applied for by the prosecution and granted by the court in appropriate circumstances. The measure is executed by the police, and a failure to comply with it will constitute an offence of obstruction under the common law. The authorisation is written, and follows oral and written submissions from the prosecution. It does not contain reasoning. It can be subject to appeal. Notification of the making of the order has to be made to every person affected by it, but there is no requirement that a defence lawyer be informed of, or present at, the execution of the measure. Judicial review is provided for by way of the possibility of making an application for recall of the order.

16. Production Orders (in Particular for Banks, Service Providers, Public Authorities and Administrators of Other Data Collections) In order for these to be potentially available, the officer applying is required to be investigating any relevant offence. If the production order also seeks a power to enter and search

642 Scotland premises the court must be satisfied there are reasonable grounds for suspicion that the items sought by search and seizure are believed to be in the premises to be entered. The measure may be applied for in relation to all offences where relevant evidence is believed to be held by banks. Items subject to legal privilege may not be seized under this measure. In order for a production order to be valid, it must have been authorised by the court. Thus, it will be applied for by police officers or officers of revenue and customs, although the prosecutor may also be present. Such an order can only be granted by the court, and this will be in writing. There is no judicial review available of this measure specifically, although if evidence is recovered and sought to be used at trial its admissibility may be challenged. Any suggestion the warrant was granted unlawfully may be reviewed by application for suspension of the warrant. The order/warrant will be executed by the police, and failure to observe and comply with the terms of the order may be punished as a contempt of court. The measure’s existence and results of the warrant will be in writing with the record of search noted together with any items recovered. Where a document is removed under a production order or a warrant the officer who removes it can be required to provide a record of what was removed within a reasonable time. There are no notification requirements. Notification takes place when the order is executed. If the procedure is by way of court order to satisfy the relevant legislation, then it may be possible to execute the order by consent, ie by notifying the holder of the material, and arranging for access. This would only be done where the holder is known to be compliant. The order is unlikely to be executed in a clandestine way as the authority permits enforced entry and search. There is no requirement that a defence lawyer is present at the execution or informed of its occurrence.

17. Invoking the Assistance of Experts to Examine Clues etc. Such assistance can be invoked at the discretion of the prosecutor for any offence where it is thought to be helpful. They may become experts on a semi-permanent basis, as for example where forensic pathologists are retained by the Crown, and used where necessary, or they may be ad hoc experts, brought in as required. If an expert is needed in a case, then it will be agreed between the police and the prosecutor who should select the expert and make relevant arrangements with them. Authorisation is not required, and it is not necessary that a defence lawyer be informed. Judicial review is not provided for in relation to expert evidence, although the validity of expert evidence could be subject to an appeal at the instigation of the opposing legal team. The defence is entitled to instruct its own experts and lead them in evidence.

18. Infiltration There is no specified degree of suspicion required before this process can be deployed. However the authorised use of covert human intelligence sources may only be permitted

Investigation Measures 643 in the detection of serious crime, which includes measures taken to establish by whom, for what purpose, by what means and generally in what circumstances any crime was committed and refers to measures taken to apprehend the perpetrator(s) of the crime. Serious crime is defined as firstly where the sentence available on conviction, for a first offender over the age of 21, is three years’ imprisonment or more and secondly where the crime either involves violence, results in substantial financial gain or is committed by a large number of persons, pursuing a common purpose. Such a measure must always be authorised; non-urgent authorisations will be permitted for three months’ duration, and urgent for 72 hours. There must usually be a written authorisation, although exceptionally in urgent situations oral authorisation may be sought. Authorisation will be sought by the relevant officer of the respective law enforcement agency, and considered/granted by the Chief Constable of the relevant jurisdictional police force area or the Director General of the Scottish Crime and Drugs Enforcement Agency. Judicial review of the measure is available to the extent that any evidence which is the product of the covert human intelligence source may be challenged as inadmissible at any trial. The Office of the Surveillance Commissioner Scotland, which provides independent oversight of the use of all such covert human intelligence sources, must be notified if such authorisation is granted, but there is no requirement to inform, or have present at the execution, a defence lawyer, due to the clandestine nature of the measure. The measure is executed by the relevant law enforcement agency whether police, Scottish Crime and Drugs Enforcement Agency or Serious Organised Crime Agency assisting either of the two relevant agencies above. The execution of the measure will be controlled by the relevant law enforcement agency under the general superintendence of the Office of the Surveillance Commissioner Scotland. There is no specific regulation on covert agents committing a crime. However, they are expected to operate in accordance with the law and if they fail to do so then, in principle, they incur criminal liability. If such officers are required to give oral evidence in court at any trial, an application may be made for a witness anonymity order to ensure the protection of the identity of the witness.

19. Controlled Deliveries There are no statutory requirements governing the use of controlled deliveries. However there may be instances where controlled deliveries form part of the overall law enforcement inquiry and will be governed and regulated as part of the overall law enforcement ability mentioned earlier and above. These are such instances as substitution of innocuous substances for drugs in postal delivery, a covert human intelligence source who is involved in such a delivery or other delivery. This measure may be applied to any crime, but is most likely in cases concerning serious, organised crime. Restrictions are only imposed where the measure falls within the framework outlined above involving the use of surveillance. In this area, Scots law prescribes no particular protection for third parties. Although there is technically a duty to cooperate with the investigative authorities, the covert nature of controlled deliveries means that this is not usually an issue.

644 Scotland The relevant law enforcement agency executing the measure will be either the relevant police force with geographical jurisdiction for the location in which or through which the controlled delivery may travel. Most likely it will be the Scottish Crime and Drug Enforcement Agency, which has Scotland-wide jurisdiction. It may also be Serious Organised Crime Agency which, while having no direct operational authority in Scotland may provide support and guidance to relevant law enforcement agencies especially in cross border operations involving both Scottish and rest of UK law enforcement. The authorisation required will depend on the exact situation and the way in which the controlled delivery is being executed. If human intelligence sources or the monitoring of communications are involved, then the authorisation required will be that referred to in the relevant paragraph above. There is no specific judicial review of controlled deliveries, but all surveillance/interception measures are subject to overall superintendence by the relevant commissioner. All evidence may be challenged in court proceedings as having been unlawfully obtained.

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution It is the duty of the investigating authority (in nearly all cases, the police) to inform the prosecuting authorities of the facts of a case. Members of the public routinely report alleged crimes to the police. The information can come in any way or form. The investigating authority, usually the police, in most (minor) cases, will inform the prosecutor at the conclusion of the investigation. A written report will be submitted. In more serious cases, the police and the prosecutor will have been working together throughout the investigation and the reporting will have been ongoing. Relationships between police are prosecutor and close and good. The police and public prosecutor have absolute monopoly over prosecution decisions at this stage; the victim has no role at the stage when proceedings are initiated, unless the victim indicates that he/she does not wish to proceed with the allegation. No specific statutory remedy, as such, is provided for against the decision to open, or not to open, proceedings. In principle the decision is probably justiciable under the general rules governing judicial review of administrative acts but there is no reported Scottish case law.

2. Unilateral Disposal of the Case (Including Remedy Against it) Cases will not be prosecuted where there is insufficient evidence. There are also specific statutory time bars for a number of offences in Scotland. There are two levels of criminal procedure in Scotland: summary and solemn. In summary the accused may be sentenced up to one year’s imprisonment. In solemn it can be either up to five years’ imprisonment when the case is prosecuted before the lower court or up to life imprisonment in the higher court. In summary cases the trial must commence within 40 days if the person is detained pretrial. If on bail, there is no time limit within which the trial must commence.

Prosecution Measures 645 In solemn cases, the accused must be served with an indictment within 80 days of being fully committed by the court, when the court is satisfied there is sufficient evidence to proceed, which is within seven days of initial court appearance. In the lower court, the trial must commence within 110 days if the accused is in pre-trial detention. If on bail, the trial must commence within 12 months of initial court appearance. In the higher court, the trial must commence within 140 days if the accused is in pretrial detention. If on bail, the trial must commence within 12 months of initial court appearance. It is possible to reopen a dropped case as long as there has not been a verdict in the case. The decision to reopen a case is one for the prosecutor only. Members of the public (victims, victims’ families) may make representations, but it is the decision of the prosecutor alone. The decision will be taken on the grounds that there is sufficient evidence and that it is in the public interest to prosecute. There is no remedy against the decision to reopen or not to reopen proceedings. Private prosecution is available where the person asks the court to permit them to prosecute the case but before they can do so the prosecutor must endorse the case. This is very rare.

3. Multilateral Disposal of the Case (Including Negotiated Justice, Diversion and Remedy Against it) Theoretically all crimes are subject to provisions offering diversionary measures with exception of murder and rape, although in practice it is restricted to lesser and minor criminal conduct. The diversionary measures are: warning letter from the prosecutor; conditional offer of fixed penalty of up to £300; compensation order up to £5,000; combined conditional offer of fixed penalty and compensation order; work order of between 10 and 50 hours’ unpaid work for the community. In order for a diversionary measure to be used, the defendant must agree to its use. The prosecutor will then write to the accused offering the diversionary measure. Authorisation will be written, and the measure will be recorded within prosecutorial documents. The accused must reply within 28 days of receiving the order that the order is accepted. If there is no reply the accused is deemed to have accepted the order. If the accused declines the order, prosecution will follow. There is no requirement to involve a defence lawyer. If the prosecutor elects to pursue this route, then there is no recourse for a victim who would prefer a prosecution to be brought.

4. Closing an Investigation There is no process by which the decision to close an investigation may be legally challenged.

646 Scotland 5. Committing to Trial and Presenting the Case in Court (a) Committing to Trial It is for the court to decide that a case should proceed to trial. This decision will be made by the same court as will ultimately try the case. The case will proceed to trial if the prosecutor believes that the evidence disclosed by the investigation makes a conviction more likely than not, and it is in the public interest to prosecute. Normally the judge is not involved until the actual trial stage, ie until the evidence is to be led. In some serious cases in the High Court, the judge may have a slightly more supervisory role, and may, for example, set timetables for particular stages of the case, or may make preliminary rulings on admissibility. He will not hear the evidence however until the start of the trial proper. The victim does not have a role at this stage. The important feature to bear in mind is that the judge is there to decide on the evidence presented before him. Before the evidence is actually presented, his role is very limited. In summary cases, for example, he has no role before that stage, other than to set trial dates, and to determine conditions of pre-trial detention/release. (b) Presenting the Case Qualified lawyers who are members of the Crown Office and Procurator Fiscal Service present cases in court. For serious cases, the Lord Advocate (the Government Minister responsible for prosecution in Scotland) or one of his Deputies, prosecute the case. Victims may not present the case in court unless the Lord Advocate declines to prosecute and the victim exceptionally obtains the consent of the High Court of Justiciary and the Lord Advocate to pursue a private prosecution. Such a course is rare but remains competent. There are no specialised bodies to present the case instead of the prosecution, as in Scotland the procurator fiscal is the sole prosecuting authority. D. EVIDENCE

1. Status of Illegally or Improperly Obtained Evidence Evidence that is illegally obtained will not be admissible in evidence. 2. Admissibility of Written Reports Written reports are in principle admissible. But Scots law generally requires disputed matters to be proved by oral testimony, and places general restrictions on the use of de auditu testimony to prove matters of fact that are disputed. The requirement for oral testimony of disputed facts will not necessarily be displaced because the fact in question is recorded or asserted in an official report.

3. Status of Evidence Obtained in Another Member State As long as evidence obtained in another MS has been obtained in accordance with the usual rules, and there has been no unfairness, then it will be admitted.

The Rights of the Suspect/Defendant During Investigation and Prosecution 647 E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence The Scottish criminal justice system operates on the basis of the presumption of innocence. This presumption applies until a finding of guilt at first instance. This means that in all criminal trials the prosecution has to prove beyond reasonable doubt that the accused person committed the crimes alleged. There are a very few special circumstances in which the accused himself has to prove something—where the accused alleges self-defence, or alibi, or blames someone else for the crime, then there is a burden on him to prove those allegations, but otherwise the accused does not have to prove anything. 2. The Right of the Defence to Undertake Investigative Measures/Acts in its Own Right The accused can undertake any investigations he chooses. He can interview witnesses, conduct scientific tests, instruct experts, etc. The defence cannot use coercive powers however, eg to execute a search warrant. 3. The Right to Legal Assistance In all criminal cases where the accused person has been arrested and detained, the accused person has a right to consult a publicly funded lawyer before his court appearance from custody. If he has not been detained, but summonsed to attend court, he may be entitled to free representation, but this will be subject to means testing. The defence is entitled to legal representation in all criminal cases, without exception, but he may have to pay, or to make a contribution towards the cost. If he is in custody, he will be informed about this before he is due to appear in court. Otherwise, he will be informed before the first court appearance. If, notwithstanding all of this, he appears in court unrepresented, but says at that stage that he requires legal advice, the case will be adjourned for that to happen. If he is unrepresented when he expressed a wish to be represented, he may say this to the court, which will adjourn the hearing for representation to be obtained. If he had expressed a wish to be represented at a pre trial stage, and this had been ignored, then any evidence relating to that pre trial stage would not be admissible. However, he does not have to be represented in a pre trial stage unless he has asked for representation. 4. The Right to have Another Person Informed About One’s Arrest The detained person may have any reasonably named person informed of his detention. If the police take the view the person is not so reasonably named they can decline to contact the person, eg if they believe the person may be a co-accused to the crime or could dispose of evidence related to the alleged crime. The suspect needs to be informed of this right at the time of detention and prior to any interview by the police. As it is a reasonably named person as opposed to a legal adviser, there are no legal consequence for a failure to observe the requirement.

648 Scotland 5. The Right to Submit Written Statements Scottish criminal procedure broadly relies on oral evidence. There is no place in this system for written statements on behalf of the defence. The only time that these could be considered is where the evidence comes from a witness who cannot, through frailty or illness, attend court personally. Otherwise, the defence, and witnesses on its behalf, must give evidence orally in court.

6. The Right to Ask for a Special Act of Investigation The defence does not to have seek permission to make its own investigations. It can do so without prior authority. If the defence is publicly funded, there may need to be application to the court for specific funding for specific investigations—say a financial report—but otherwise, there is no need to seek authority for particular types of investigation. If the investigation sought is abroad, then the defence will have to apply to the court for the court to issue a letter of request to the foreign state, but that is the only situation where the court will have to be involved.

7. The Right to be Informed that One’s Statements may be Used as Evidence Once the suspect is charged, he will not be asked further questions, and he will not make any statements. However, at the moment of charge, the suspect is advised that anything he says in response to the charge may be recorded and used in evidence. If he were not warned of this consequence, then anything he subsequently said would be inadmissible.

8. The Right to Require a Precise Wording of his/her Statements and the Right to Full and Accurate Recording of the Statement Anything that the suspect says in consequence of section E.7 above must be recorded exactly as it is said. The matter would then be one of credibility for the court: which evidence was to be preferred.

9. The Right to Refer to Documents During Interview At interview with the police, prior to charge, the suspect may be shown documents. And if he wishes to produce his own documents he may ask the police who interview him for permission to access those documents—they may be eg at home. Evidence obtained by the police in an interview that proceeded ignoring such a request would be challenged in court and would be likely to be ruled inadmissible.

The Rights of the Suspect/Defendant During Investigation and Prosecution 649 10. The Right to Consult Relevant Legal Acts The accused person and his legal team have the right to access and study all the documents that the prosecution intend to rely on in the course of the prosecution. The practice of ‘disclosure’ of unused material is not as developed, nor as regulated, in Scotland, as in England and Wales, but there remains a duty on the prosecution to ensure that the accused person has access to all relevant material. It is beyond question that he would have access to the indictment/charge. 11. The Right to be Informed About Possibilities of Reconciliation with the Victim This is not normally part of the interview process. If there is a victim, it would be up to the victim to indicate to the police that he/she did not want the investigation to continue. The views of the victim would be relevant to the preparation of the prosecution case, and would be taken into consideration by the prosecution. 12. The Right to be Informed About the Place of Detention Following charge, if there is to be any detention, the accused will of course be told where he is to be detained. If he is to be taken somewhere, he will know where that place is, not least because on entering whichever establishment it is, there will be indications of its identity. He has no right to choose his place of detention however. 13. The Right to be Informed About the Charges The charges are presented orally to the defendant—he will be informed in this way. If the charges were not presented then he would not have been charged, so the process would not have begun. They are also recorded in writing and may be referred to at a later date. 14. The Right to a Full and Accurate Recording of the Statement Anything the defendant says after charge will be recorded, and may be used in evidence. He is warned that this is his right before he is charged, and reminded that he does not have to say anything. Before the suspect is charged, he may have been interviewed as a potential witness, and any statement he made at that stage will have been recorded by the police. Depending on the place of interview, it may be either in manuscript, in a notebook, or it may have been recorded on a tape machine. 15. Access to the File During Pre-Trial Proceedings The concept of ‘a file’ is not known in our system. Prior to trial, the accused person will know the charges against him, and, for serious charges, will know the names and contact

650 Scotland details (although not the addresses) of witnesses whom the prosecution proposes to call. In most cases, the defence will only know the names etc of the witnesses. In more serious case, the prosecution will reveal statements given by the witnesses to the police. However, the Crown in Scotland also ‘precognosces’ its main witnesses in serious cases. This is a private interview between the witness and a representative of the prosecution service. The precognition is private and is not disclosed to the defence. However where the prosecution receives evidence at precognition which is either contrary to the witness’s statement to the police or discloses evidence that either assists the accused or undermines an aspect of the prosecutor’s case, the precognition must be disclosed to the defence. The overarching Crown duty of disclosure was set out in McLeod v HMA (No 2) 1998 JC 67 and was more recently expressed in McDonald v HMA 2008 SLT 993, which was an appeal heard by the Privy Council. In MacDonald the duty was expressed as including information obtained during the course of the investigation and any criminal proceedings, of which the Crown is aware, which is likely to be of real importance to any undermining of the Crown case, or to any casting of reasonable doubt on it, and which is of positive assistance to the accused. The Crown has a subsisting duty to provide proactively to the defence all information which: would materially weaken or undermine the evidence that is likely to be led by the prosecutor in the proceedings against the accused; would materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused.

The Crown’s duty of disclosure has been placed on a statutory footing from 6 June 2011 in Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010. The Crown duty is a continuing one and lasts in perpetuity and beyond the conclusion of the case. The Crown will also disclose the previous criminal history of all witnesses.

16. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) (a) Translator If the suspect does not speak or understand sufficiently English (or is deaf/mute), then an interpreter will be arranged for him for interview. After charge, when he is an accused person, the court will arrange for an interpreter. At interview stage, the police bear the cost of interpretation, and at court stage, the court bears it. During the court process where an accused person cannot speak/understand English, the proceedings will be interpreted orally and simultaneously for the accused. Key documents—the indictment, eg may be translated in writing. Normally, commercial interpretation agencies are used for the provision of interpreters. Courts and the police will have contracts with such agencies to provide assistance.

The Rights of the Suspect/Defendant during Investigation and Prosecution

651

(b) Defence Lawyer The accused person always has a right to a defence lawyer if he appears from custody. He is also able to consult a duty solicitor on duty at all courts. He may have to pay for legal advice, depending on his financial circumstances. There is no obligation to have a defence lawyer, although, especially if the case is complicated, the use of a lawyer is encouraged. The publicly available lawyer may be accepted by the defence, or he may choose another. Defence legal aid is means tested, apart from the first court appearance, where it is free. Where there is entitlement to free legal aid, then the defence costs will be met by the state. In other cases, the accused person has either to pay all, or some of the defence costs, depending on financial status. The accused is entitled to consult a lawyer prior to being interviewed by the police. Failure to allow him to do so will lead to the statement being rendered inadmissible as contrary to the accused’s rights under Article 6 of the ECHR. The accused may decline an interview with a solicitor but if he does so, that does not amount to a waiver of his right of access to a lawyer and any subsequent interview will be inadmissible.

17. The Right to Silence During the Pre-Trial Procedure When a person becomes a suspect, he is cautioned, and remaining silent is one of the rights at that stage of which he is informed orally. If this information is not given in the caution, then any answers given may be rendered inadmissible. In nearly all criminal cases, there are no restrictions on the right to silence. However, in the investigation of serious or complex fraud, or in financial investigations, compulsory questioning may be used. (See eg section 51ff of the Criminal Justice (Scotland) Act 1987 as amended) The answers to questions posed in such cases may not be used against the accused person however. If the questioning is compulsory, it would be a separate offence to refuse to answer specific questions, or to produce relevant documents. Generally, the suspect is not required to inform the prosecution of the nature of his defence. But where the accused sets out what is called a ‘special defence’, then he has to notify the prosecution in advance. The only special defences are the defences of alibi, incrimination, or self-defence. In serious cases only the prosecutor is entitled to question the accused directly at a judicial examination. If such an examination takes place, it is conducted before a judge, in the presence of the defence lawyer and is tape recorded with a transcript of the interview then being transcribed and made available for trial. The defence agent is not permitted to intervene but can interview his client prior to the examination. If the accused at the examination offers a defence the prosecutor must investigate that. If the accused offers a defence and then at the trial offers another defence, this change may be commented on by the prosecutor and judge at the trial but they must do so with caution, given the practical effect it may have on the determination by the jury of the guilt or innocence of the accused.

18. Rights of Legal Persons in Criminal Proceedings Legal persons may not be questioned, or interviewed, so the same rules do not apply.

18 Slovenia PRIMOŽ GORKICˇ

A. INTRODUCTORY NOTES

1. Overview of Slovenian Criminal Procedure

T

HE 1967 AMENDMENT to the then Yugoslav Code of Criminal Procedure (old CCP) set out the basic structure of criminal procedure in Yugoslavia,1 and consequently in Slovenia. Criminal procedure was considered essentially a court procedure, following the accusatorial-inquisitorial (mixed) model. In cases of ex officio prosecution, the judicial investigation was preceded by a policeled preliminary procedure. In theory, a sharp distinction was envisioned between the preliminary procedure and the court criminal procedure. The former was in theory not considered a part of criminal procedure, simply because no trilateral relationship between the court, the prosecutor and the defendant had yet been established.2 Initially, the aim of such a structure was to reduce the powers of the police, who were no longer considered a body of criminal procedure.3 The formal separation of police and judicial proceedings had a great impact on the standing of the alleged perpetrator. The suspect in preliminary procedure could, of course, not be considered a party to the criminal proceedings, thus not the addressee of procedural (defence) rights. A suspect had the right to a defence attorney only in exceptional cases, such as in case of arrest. The old CCP made no reference to a right to a defence lawyer when questioned by the police. Finally, the separation of police and judicial proceedings led to a distinction in the nature of the material and the information the police and the courts collected. Material and information collected by the courts (during judicial investigation or at the trial) could be used in evidence: the court could make valid references to such ‘formally’ collected material. Conversely, material and information collected by the police could in principle not be used in evidence. This prohibition was especially strict in regard to statements: there was a firm ban on police interrogating persons as if they held the status of the accused or of a witness. Rather, they were ‘informally’ questioned (not ‘interrogated’) as citizens, as persons able to offer information of interest to the police. As to other types of information, some important exceptions to this rule were envisaged: the police could lege artis conduct 1 In former Yugoslavia a new CCP was passed later on, in 1976, resting on the same principles set out in 1967. See in more detail, K Šugman, Dokazne prepovedi (Ljubljana, Bonex, 2000) 115–19. 2 Eg D Dimitrijevic´, Krivicˇno procesno pravo, 8th edn (Belgrade, Savremena administracija, 1982) 238. 3 Z Fišer, ‘Predkazenski postopek’ in K Šugman(ed), Izhodišcˇa za nov model kazenskega postopka (Ljubljana, Inštitut za kriminologijo pri PF v Ljubljani, 2006) 58f.

Introductory Notes 653 urgent investigative acts, eg searches of premises and persons, seizures of objects and crime scene inspections. The distinction between ‘informally’ police-collected material (also termed informal investigative acts) and material ‘formally’ collected by the courts, was aimed at establishing an ‘information barrier’, as a means of reducing the powers of the police. This, however, was impossible to achieve, as critics pointed out:4 the courts drew heavily on police-gathered materials (collected ‘informally’ or by means of urgent investigatory acts), which typically became a part of a court dossier. The distinction between ‘informal’ police acts and the ‘formal’ investigative acts, however, remains to this day, and is essential for the understanding of the nature of statement-gathering from the suspect in the preliminary procedure.

2. Phases of Slovenian Ordinary Criminal Procedure Under the current CCP,5 the ordinary criminal procedure6 in cases of offences prosecuted ex officio typically consists of four main stages:7 a. b. c. d.

pre-trial procedure; submission of the charge sheet (indictment); trial; and (optional); appeal procedures. Pre-trial procedure is further divided into:

i. preliminary proceedings; and ii. the phase of judicial investigation. Of course, not all proceedings will follow each of the above stages. Additionally, it is possible for the state prosecutor to file a direct indictment (CCP, Article 170), immediately after the preliminary procedure, if he finds there is no need for judicial investigation. Similarly, no judicial investigation will take place in case of summary criminal procedure. It is not possible, however, to imagine a criminal procedure for ex officio prosecuted offences without a preliminary, police-led procedure.

4 Šugman (n1) 132ff; BM Zupanc ˇicˇ, ‘Prispevek k teoriji kontradiktornosti’ (1984) Zbornik znanstvenih razprav 159ff. 5 Criminal Procedure Act (Zakon o kazenskem postopku) Uradni list RS, Nos 63/1994, 25/1996 Odl US: U-I-18/93, 39/1996 Odl US: U-I-33/95-12, 5/1998 Odl US: U-I-25/95, 49/1998-ZPol, 72/1998, 6/1999, 42/2000 Odl US: U I 282/99, 66/2000, 111/2001, 32/2002 Odl US: U-I-92/96-27, 3/2003 Odl US: U-I-204/99-22, 21/2003 Odl US: U-I-190/00-11, 44/2003 Odl US: U-I-149/99-15, 56/2003, 92/2003 Odl US: U-I-319/00-21, 114/2003 Odl US: U-I-426/02, Up-546/01-21, 116/2003-UPB1, 43/2004, 68/2004 Odl US: U-I-296/02, 83/2004 Odl US: Up-729/03, U-I-187/04, 96/2004-UPB2, 101/2005, 8/2006-UPB3, 14/2007, 32/2007-UPB4, 102/2007-ZSKZDCˇEU, 21/2008 Odl US: U-I-96/06-13, 23/2008-ZBPP-B, 65/2008 Odl US: U-I-328/04-22, 68/2008, 89/2008 Odl US: U-I25/07-43, 77/2009, 88/2009 Odl US: Up-3871/07-26, U-I-80/09-26, 109/2009 Odl US: U-I-46/08-20, 29/2010 Odl US: U-I-50/09-18, Up-260/09-17, 58/2011-ZDT-1. 6 In Slovenia, there are two types of criminal procedure (not including the procedure against minors): an ordinary procedure, conducted for offences carrying a sentence of more than three years of imprisonment, and a summary procedure, conducted for offences carrying a fine or a sentence of imprisonment of up to three years of imprisonment (CCP, Art 25). For further reading on Slovenia’s criminal procedure, see K Šugman Stubbs, ‘Criminal Procedure in Slovenia’, in R Vogler and B Huber, Criminal Procedure in Europe (Berlin, Duncker & Humblot, 2008) 487ff. 7 In a terminological sense, this outline follows the translations proposed by Šugman ibid 488.

654 Slovenia B. INVESTIGATION AND ITS PARTICIPANTS

1. Police and Investigating Judge The term ‘investigation’ applies strictu sensu only to the phase of judicial investigation. Similarly, the term ‘acts of investigation’ applies to acts, intended to be carried out in the phase of judicial investigation. It is the investigating judge that authorises and in principle carries out all acts of investigation in the judicial investigation phase. The judge also has powers to carry out acts of investigation even before the judicial investigation has been opened.8 As such, the notion of ‘investigation’ as a technical term denotes procedural activities of the investigating judge. However, the police in preliminary procedure exercise investigatory powers as well. Largely, their powers consist of so-called ‘informal’ acts of investigation. The police are authorised to investigate when ‘grounds exist for suspicion that a criminal offence liable to state prosecution has been committed.’ The police are ‘bound to take steps necessary for discovering the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, detecting and preserving traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful conducting of criminal proceedings’ (CCP, Article 148/1). For these purposes, the police may (CCP, Article 148/2): (i) seek information from citizens; (ii) inspect transportation vehicles, passengers and luggage; (iii) restrict movement within a specific area for a specific period of time; (iv) perform what is necessary to identify persons and objects, including taking tissue samples, photographing and publishing photographs (CCP, Article 149); (v) send out a wanted circular for persons and objects; (vi) inspect in the presence of the responsible person specific facilities, premises and documentation of enterprises and other legal entities, and (vii) undertake other measures necessary. Their primary role is to gather sufficient information for the state prosecutor to decide whether to act upon a criminal report or not, ie either to request judicial investigation or proceed directly with the submission of indictment, or to dismiss the criminal report. The above-mentioned acts, therefore, are not yet ‘acts of investigation’ in the meaning set out above. In exceptional cases,9 however, the police have powers to carry out specified formal acts of investigation (search of premises and of persons, inspection, seizure and ordering of expertise), if there is a danger of delay (CCP, Article 164). In addition to this, the police are authorised to execute covert investigating measures in the preliminary proceedings (with approval of the court or the state prosecutor). Therefore, the term ‘investigation’ may be used to designate the substance of acts carried out by both the police and the investigating judge, in both preliminary procedure and the judicial investigation.

8 Either upon the prosecutor’s motion (CCP, Arts 165, 165a) or ex officio after a motion for judicial investigation has already been filed by the prosecutor, but not yet decided by the investigating judge (CCP, Art 166). 9 At least in theory. Practice shows that a vast majority of certain formal investigating acts are carried out in preliminary proceedings by the police. Such is the case of search of premises and search of persons.

Investigation and Its Participants 655 2. State Prosecutor The state prosecutor, as a rule, does not carry out investigations. It does, however, have significant powers to a) direct the work of the police in the preliminary procedure, and b) powers to request judicial investigation and participate in it (ie file motions to perform acts of investigation, request the judicial investigation be supplemented etc). These powers are set out in CCP, Article 45: [I]n respect of criminal offences prosecuted ex officio, the state prosecutor has the jurisdiction: (i) to take the necessary steps concerning the detection of criminal offences, tracing of perpetrators and directing of preliminary criminal proceedings; and (ii) to request that investigations be undertaken.

These powers are further elaborated in the CCP. As to preliminary procedure, the prosecutor’s most important power is the power of directing the preliminary proceedings: the state prosecutor sets guidelines for police work by giving directions, expert opinions and proposals for the information gathering and execution of other measures coming within the competence of the police, with a view to detecting a criminal offence and its perpetrator or gathering information necessary for his decision (CCP, Article 160(1)). The prosecutor’s directing of preliminary proceedings is optional as a rule, and mandatory in cases when covert measures are applied or when the matter is assigned to a special group of prosecutors for organised and economic crime,10 recently reorganised as Specialised Prosecution Office under the new State Prosecution Act of 2011. In addition to this, the state prosecutor has the power to carry out ‘informal’ acts of investigation (CCP, Article 161/2, referring to CCP, Articles 148, 149) in order to gather sufficient information to decide upon a criminal report. As a rule, the state prosecutor requests the police to do so. Judicial investigation is carried out only upon a request of the state prosecutor. The request must specify: the person against whom an investigation is requested, the description of the act which indicates elements of a criminal offence, the statutory designation of the criminal offence, the circumstances warranting the suspicion of a criminal offence, and evidence already collected. The state prosecutor must indicate which particular circumstances should be explored in the investigation and which particular acts of investigation should be performed, and may propose that the person against whom investigation is requested be detained (CCP, Article 168/2). During the investigation, the prosecutor may propose the undertaking of acts of investigation (CCP, Article 177), request the investigation be expanded to another criminal offence or against another person (CCP, Article 175(2)), or request that the investigation is supplemented after the investigating judge decided to close the investigation.

3. Other Agencies There are no specialised agencies with powers to investigate in the sense explained above. However, the CCP imposes a duty upon public sector bodies to file a criminal report should

10

Established under Art 10f of the State Prosecutor Act.

656 Slovenia they suspect one has been committed (CCP, Article 145). In this sense, all state agencies and organisations having public authority must report criminal offences liable to state prosecution of which they have been informed or which were brought to their notice in some other way. By doing so, they must indicate evidence known to them and undertake steps to preserve traces of the crime, objects on which or by means of which the crime was committed and other items of evidence.

4. Suspect, Accused, Defendant After 1991 and the adoption of the new constitution, two opposing forces shaped the position of the suspect in pre-trial procedure proceedings. First was the legacy of the 1967 reform and the consequences it had for the suspect. The new CCP, when it came into force in 1995, retained the separation of police and judicial proceedings, which in turn reflected in a different understanding of the suspect and the defendant (the accused). CCP, Article 144 defined the suspect as: [A] person against whom the competent government agency undertook, before the introduction of criminal proceedings, a specific act or measure because grounds existed to suspect that he had committed, or participated in the commission of, a criminal offence. The accused was defined as: [T]he person against whom judicial investigation is conducted. Later on in the proceedings the accused was termed ‘the defendant’ as the indictment became final.

The addressee of defence rights was at that time no doubt only a person who had the legal status of the accused (later the defendant). As defence rights were understood as rights of the accused in criminal procedure, their application in preliminary procedure was still limited mainly to cases of deprivation of personal freedom (arrest). Suspects were entitled to a defence lawyer when in custody, but not otherwise.11 The second force to shape the current standing of the suspect came with the adoption of a new constitution in 1991 and the ratification of the ECHR in 1994. Both brought changes in the understanding of defence rights.12 To this end, the Constitutional Court of Slovenia has participated significantly through its judgments passed on the basis of the mechanism of constitutional complaint. In addition, theoretical advances pointed out that the formal separation of preliminary police procedure and judicial procedure failed:13 the preliminary procedure has been recognised as the critical phase of the procedure, determining the outcome of the procedure—thus calling for a change in the structure of the preliminary procedure and especially the suspect’s position and the scope of defence rights. At the core of the argument lay a change in the notion of charge: instead

11 It must be noted that such statements had to be excluded from the files (former CCP, Art 83). However, prior to their exclusion, the investigating judge had the opportunity to read and thus utilise them for the benefit of the investigation. 12 Today, the scope of defence rights is mainly construed according to Art 6 ECHR and Arts 18, 19, 20, 21, 27 and 29 of the Constitution: (1) prohibition of torture; (2) respect of human personality and dignity; (3) prohibition of coercion; (4) right to personal liberty; (5) presumption of innocence; (6) the right to have adequate time and facilities to prepare his defence; (7) the right to be present at his trial and to conduct his own defence or to be defended by a legal representative; (8) the right to present all evidence to his benefit; and (9) the right not to incriminate himself or his relatives or those close to him, or to admit guilt. 13 See Šugman (n1) 137ff.

Investigation and Its Participants 657 of charge in a formal sense (ie a request to the court to open proceedings), a different approach was proposed, resting on the notion of a focused police investigation.14 The courts15 and the legislator, however, have not followed suit until recently. As said, the legislator in general followed the ideas of the 1967 Act. Slowly, however, it became clear that a different approach was necessary. In 2003, CCP, Article 148/IV was amended as follows: When in the course of information gathering the Police establish that there are grounds to suspect that a particular person (the suspect) has perpetrated or participated in the perpetration of a criminal offence, they shall inform that person, before starting to gather information from him, the criminal offence he is suspected of and the grounds for suspicion, and shall instruct him that he is not obliged to give any statement or answer questions and that, if he intends to plead his case, he is not obliged to incriminate himself or his close relatives or to confess guilt, that he is entitled to have a counsel of his choosing present at his interrogation, and that whatever he declares may be used against him in the trial. The article applies regardless of whether the suspect has been apprehended or not— and in this respect it represents a ground-breaking development in Slovenian criminal procedure. In short, by adopting such wording, the legislator has de facto rejected the above-mentioned separation of police and court procedure, by recognising the suspect as the addressee of the rights granted originally to the accused (and later the defendant). The distinction between informal gathering of materials and information and ‘formal’ acts of investigation, however, remains and will be explained in detail later on. The impact of this distinction is most evident when we differentiate between ‘informal questioning’ and ‘formal interrogations”, both powers of the police, but different in nature and their probative value. Nowadays, a suspect is considered ‘charged’ when the investigation in preliminary Police proceedings has focused on a particular person, suspected of committing or participating in a particular offence. This is the moment when the alleged perpetrator is considered the addressee of defence rights, in particular the right to remain silent, the right to a defence attorney and the right to be informed of the nature and grounds of the charge.

14 It should be noted, that the notion of ‘fair procedure’, particularly the concept of equality of arms, has begun to develop in theory quite early, back in late 1960. However, the notion was limited to the judicial procedure (see P Kobe, ‘Enakost orožja’ ’ v kazenskem postopku in jugoslovansko kazensko procesno pravo [1968] Zbornik znanstvenih razprav, 81ff). In mid-1980, when the strict separation of police and court procedure came under closer scrutiny, the notion of ‘charge’ was applied very vigorously in determining the addressee and the scope of defence rights. It was construed in the light of American caselaw, relying on the concept of ‘focused’ police investigations. See BM Zupanc˘ic˘, ‘Legitimatio ad causam: primerjava med kazenskim in pravdnim postopkom’ in BM Zupanc˘ic˘ (ed), Odloc˘be in razprave (Ljubljana, UL RS, 1988) 215ff. 15 See eg Supreme Court of the Republic of Slovenia, 30 May 2008, Kp 16/2007, not without some stimulus from Šubinski v Slovenia App no 19611/04 (ECtHR, 18 January 2007) stating: ‘The Court notes that in the preliminary proceedings the Police must collect enough evidence to enable the state prosecutor to substantiate all the elements of the request for an investigation ... In the instant case, the Court observes that one of the steps taken for that purpose was the questioning of one of the school teachers.... Given the content of her statement and in view of the fact that a request for an investigation concerning the criminal offence of sexual abuse of a minor was ultimately lodged against the applicant, the Court presupposes that the Police must also have taken other measures in order to gather evidence in support of the reasonable suspicion against him. Clearly, any such measures resulted in interference with the applicant’s right to respect for his private life, it being precisely this aspect of his life that the Police and the prosecution authorities had to scrutinise. The Court thus concludes that the activities of the Police in the preliminary proceedings must have substantially affected the applicant’s situation at the material time’.

658 Slovenia C. PRINCIPLES APPLICABLE TO INVESTIGATIONS IN SLOVENIAN CRIMINAL PROCEDURE

The CCP does not set out an exhaustive list of principles governing criminal procedure in Slovenia. Some of the principles need to be construed by virtue of interpretation of its provisions and of applicable caselaw. Doctrine, in general, recognises the following general principles:16 the fair trial principle, the principle of accusation, the principle of officiality, the principles of legality and opportunity, the principle of free evaluation of evidence, the truth-finding principles (along with the inquisitorial maxim), the presumption of innocence (including in dubio pro reo), the ne bis in idem principle, the principle of oral hearing and the principle of immediacy. It is obvious that some of the above hardly apply to pre-trial procedure and the submission of charges (eg the principle of oral hearing and of immediacy). Others, however, do. At this point, the following principles and their application to investigation and prosecution measures will be further explored: the presumption of innocence; the principles of officiality, of accusation, of legality and of opportunity;and the truth-finding principle.

1. The Presumption of Innocence The presumption of innocence is formulated in Article 27 of the Constitution and CCP, Article 3: Any person accused of a criminal offence shall be deemed innocent until his guilt has been determined in a judgment.

Its effects, however, go beyond the stated prohibition of designating guilt without a conviction. First of all, it does not apply only to persons accused of a criminal offence (ie a person charged with a criminal offence). Instead, its effects go beyond the scope of criminal procedure. In principle, it prevents any application of criminal law measures against an individual, thus securing the individual from unjustified intrusions by the criminal justice system.17 And second, the presumption of innocence imposes a burden of proof on the investigation authorities. Application of criminal law measures is admissible only when competent state bodies dispose with an adequate amount of information that justifies further investigation measures. In other words, the competent investigatory bodies (ie the police, the state prosecutor or the investigating judge) need to meet the standard of proof, required for executing a specific investigation measures. Standards of proof (and their severity) correspond to the intensity of investigation measures. Measures of lower intensity may, under the CCP, be executed with a minimum of information termed ‘grounds for suspicion’ (eg questioning or interrogating a suspect, questioning other persons, fingerprinting, etc). Measures that intrude upon one’s rights and freedoms more intensely (typically, one’s privacy), however, require that the competent bodies show ‘reasonable’ grounds

16 17

Šugman (n 6) 491ff. Constitutional Court of the Republic of Slovenia, 20 November 2003, U-I-296/02.

Principles Applicable to Investigations in Slovenian Criminal Procedure

659

for suspicion (eg search of persons, premises, covert surveillance etc).18 Pre-trial judicial detention, considered the most severe of measures aimed at the alleged perpetrator during the investigation phase, may be ordered only upon show of ‘reasonable suspicion’.19 For these reasons, the presumption of innocence can be considered the most important of principles governing the investigation of criminal offences. Its application is tightly joined with the principle of proportionality, leading the competent bodies to assess the intensity of intended investigative measures and the quality of information they already possess in individual cases. As such, the presumption of innocence is an essential component in securing individual’s rights and freedoms during criminal investigations. In as much as investigating bodies must pursue the truth of the matter, they must observe the limitations set by the presumption of innocence, constitutionally protected rights and freedoms and required standards of proof.20

2. Principles of Officiality, of Legality, of Opportunity and of Accusation These principles apply to prosecutorial decisions during or at the end of the pre-trial procedure. Under the principle of officiality, the state prosecutor will make a decision on prosecution regardless of the interests of the injured party (ex officio). It does not apply when law provides for private criminal prosecution; and is of limited scope in case of offences prosecuted upon motion of the injured party. In the case of a private criminal prosecution, it is the injured party acting as private prosecutor, due to a prevailing personal element of the offence (eg slander, libel, family relations etc). In case of offences prosecuted upon motion of the injured party, the state prosecutor retains it powers to prosecute. He may not, however, request the opening of judicial investigation or file an indictment without prior motion of the injured party (CCP, Article 136). In these cases, lack of motion of the injured party does not preclude the investigation of an offence by the police. It does, however, preclude the opening of a judicial investigation or the filing of an indictment. The decision of the state prosecutor is governed by the principle of legality: he is bound ‘to institute criminal prosecution, if there is reasonable suspicion that a criminal offence liable to prosecution ex officio has been committed’, unless provided otherwise by the CCP (CCP, Article 20). The state prosecutor will ‘institute criminal prosecution’ either by requesting that judicial investigation be opened or by filing an indictment. He is, in principle, bound to do so, as long as information collected during preliminary Police investigation provides for a ‘reasonable suspicion’ a specific person committed a specific criminal act. As noted, the duty to proceed with criminal prosecution, is not without exceptions. The legality principle is complemented with cases when the state prosecutor may apply the principle of opportunity. Under Slovenian law, settlement (CCP, Article 161a) and conditional suspension of prosecution (CCP, Article 162) are considered such measures that digress from the principle of legality. In effect, the application of the two mentioned measures will result in the state prosecutor rejecting the criminal report, thus closing the criminal investigation with the ne bis in idem effect. 18 19 20

Constitutional Court of the Republic of Slovenia, 27 November 1995, U-I-25/95. Constitutional Court of the Republic of Slovenia, 11 April 1996, U-I-18/93. K Šugman, ‘Pomen dokaznih standardov v kazenskem postopku’ (2007) Zbornik znanstvenih razprav, 245ff.

660 Slovenia The principle of accusation, too, has significant effects upon the investigation process. Under CCP, Article 19, criminal procedure (specifically, judicial criminal procedure) can only be instituted upon request of the authorised prosecutor. The principle applies to the opening of judicial investigation as well: Investigations shall be conducted at the request of the state prosecutor. (CCP, Article 168.)

In this sense, the accusation principle is crucial in determining the scope of the judicial investigation, as it will only be conducted against the criminal offence and the accused specified in the ruling on the opening of investigation (CCP, Article 175/1). Expansion of investigation is allowed upon motion of the state prosecutor (CCP, Article 175/3).

3. The Truth-finding Principle The truth-finding principle, as stated in CCP, Article 17, requires the court and other state bodies participating in criminal procedure (therefore, including the police and the state prosecutor) to: [E]stablish completely and according to the truth the facts relevant for passing a lawful decision, [examining] with equal attention those facts which incriminate the accused and those facts which are in favour of the accused.

As such, ‘truth of the facts’ is a legal value all state bodies are required to pursue. Given that the court is, at the end, responsible for the fact-finding process, the most important consequence of the principle is, of course, the inquisitorial maxim. The inquisitorial maxim, strictusensu, applies only to the court, both during the judicial investigation and later on, during trial. In this sense, the investigating judge will: [P]erform the investigative acts required by the parties and those which he deems necessary for the successful execution of investigation. (CCP, Article 176.)

The inquisitorial maxim applies both to facts and to evidence: it is for the court to establish which facts are relevant during the investigation and what evidence is to be produced. The court is not bound by the submission of the parties during the judicial investigation. This does not, however, suggest that the police and the state prosecutor do not hold similar powers. Under CCP, Article 148, the police are bound: [T]o take steps necessary for discovering the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, detecting and preserving traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful conducting of criminal proceedings.

The state prosecutor, although without powers to investigate, may request the police to undertake the necessary acts in order to discover the criminal offence and the perpetrator (CCP, Article 161/2) and may request the investigating judge to undertake specific investigative acts and may request the investigation to be supplemented (CCP, Article 184/2). The truth-finding principle is not without limitations, most of them already mentioned above. Most importantly, the truth-finding process must observe limitations set by the rights and freedoms of individuals (alleged perpetrators and others). Any digressions will typically result in exclusion of evidence, rendering useless any evidence gathered by means of unlawful intrusion upon the individual’s integrity, despite its contribution to the truth of the matter.

Procedural Safeguards During the Investigation 661 D. PROCEDURAL SAFEGUARDS DURING THE INVESTIGATION

1. Introductory Note In general, the standards of procedural safeguards have been improving in Slovenian criminal procedure, perhaps most obviously during the preliminary procedure and during judicial investigation. Thisdevelopment goes hand in hand with a reform of the suspect’s status after 1995. As the suspect was granted the position of a subject to (preliminary) criminal procedure, the discussion about the level of procedural safeguards has intensified. More specifically, the suspect’s position increasingly resembled thatof the accused and of the defendant during the judicial investigation and at the main hearing; this development led some to speak of ‘juridisation’of the preliminary procedure.21

2. Right to Remain Silent and the Right to Legal Assistance The above-mentioned evolution of procedural safeguards has significantly contributed to the scope of the right to remain silent during the preliminary procedure. While the accused (during judicial investigation) enjoyed the right to remain silent all along, before 2003 this right was explicitly granted only to suspects under arrest (CCP, Article 4) or when being interrogated by the investigating judge. The right to remain silent included (and still does) the duty of the police or the investigating judge to inform the suspect of his rights. After 2003, the right to remain silent was expanded to suspects regardless of whether or not they had been arrested, provided, of course, that they became the focus of the police investigation and the police decided to question or interrogate the suspect (CCP, Articles 4, 148/IV, 148a and 157/V). Similar was the development of the right to a defence lawyer during the preliminary procedure. At present, the right to remain silent and the right to a defence lawyer apply to the following procedural situations during the preliminary procedure: —

—

—

—

21

On the arrest of a suspect. Suspects under arrest enjoy the right to remain silent and the right to a defence lawyer from the moment of the arrest (CCP, Article 4) and during the entire period of police or custodial detention. Informal questioning of a suspect that lies in the focus of the investigation (CCP, Article 148/IV). Before the police may either initiate informal questioning or (perhaps) interrogate the suspect, they must inform the suspect of the right to remain silent and the right to a defence lawyer. The same applies to a suspect under arrest or if detained (CCP, Article 157/5). Before and during formal police interrogation (CCP, Article 148a). If a suspect, when informed of his rights under CCP, Article 148/IV), decides to obtain a defence lawyer, the police may proceed in the presence of the lawyer with formal interrogation of the suspect and again, offer information on the rights of the suspect (CCP, Article 148a, 227). Apprehended suspects brought before the investigating judge for interrogation and further custodial detention are to be informed of their rights under CCP, Article 4. (CCP, Article 203). Z Fišer, Uvodni komentar k Zakonu o kazenskem postopku (Ljubljana, UL RS, 2002) 64–65.

662 Slovenia —

Suspects (at large), interrogated by the investigating judge pending a decision on the prosecutor’s request to open judicial investigation, are notified of their right to remain silent and the right to a defence lawyer (CCP, Article 227/2) and at any time they are interrogated during the judicial investigation.

The right to remain silent specifically allows the suspect or the accused to refuse to make statements. There is no general rule that would allow the suspect or the accused to refuse production of documents or other objects or data. In some instances, the suspect or the accused is exempt from sanction if he/she refuses to produce data necessary to access an electronic device (CCP, Article 219a). Commentators are of the opinion the a suspect or an accused should be exempt from a duty to comply with a request to submit documents, objects or other data.22 (a) Mandatory Defence Lawyer Slovenian criminal procedure does have a system of mandatory defence by a lawyer. The system appears quite complicated: whether the mandatory defence rule applies or not depends on the stages of the procedure, the personal circumstances of the suspect/accused/ defendant, the nature of the charged offence etc. A suspect or the accused must have a defence lawyer (CCP, Article 70): 1. when interrogated (by a judge): — if he/she is deaf, dumb or otherwise incapable of defending him/herself; — if the object of criminal proceedings is an offence carrying a penalty of imprisonment of 30 years or more; — if he/she is arrested (or detained by the police) and later brought before the investigating judge; 2. during a hearing on custodial detention (CCP, Article 204a) and at all times if in custodial detention; 3. at the time he/she is served with the indictment for an offence carrying a penalty of imprisonment of eight years or more (and subsequently). More importantly, there is no mandatory defence rule when the suspect is questioned by the police. Although the police are only authorised to formally interrogate the suspect in the presence of a defence lawyer, the decision to obtain one lies entirely with the suspect. 3. Right to be Assisted by an Interpreter The right to be assisted by an interpreter applies in court proceedings and court-led investigation measures. Under CCP, Article 8, parties, witnesses and other participants in the proceedings have the right: — —

22

to use their own language in investigative and other judicial actions and at the main hearing; to oral translation of their statements and the statements of others, and to the translation of documents and other written evidence, if a judicial action or the main See Š Horvat, Zakon o kazenskem postopku s komentarjem (Ljubljana, GV Založba, 2004) 520.

Procedural Safeguards During the Investigation 663 hearing is not conducted in the languages of these persons (ie in a language they understand). As to the investigation, the right of a suspect or the accused to be assisted by an interpreter applies explicitly to any investigative measure taken by the investigating judge before or during the judicial investigation, if—of course—the suspect or the accused is present. CCP, Article 8 does not specifically apply to police-led investigative measures. However, in as much as the police carry out formal acts of investigation, the same rules apply, in particular in the case of formal interrogation of the suspect.23

4. Right to be Informed of the Charges This procedural safeguard, too, has becomeincreasingly important during investigations. The right to be informed of the charge is a necessary precondition for an effective exercise of other procedural safeguards. The decision whether to remain silent or whether to obtain a defence lawyer should depend to a large extent on the information provided by the police of the investigating judge on the nature and the basis of the charges. It is therefore not surprising, that the right to be informed of the charge, in some way or other, is present at every procedural situation already mentioned (see above). More specifically, the CCP recognises the right of the suspect: —

—

—

to be informed of his/her arrest. Under CCP, Articles 4 and 157/3, any arrested person is to be advised immediately by the police of the reasons for the arrest, of the criminal offence and of reasons for suspicion against him/her; the information must also be repeated by the investigating judge (CCP, Article 203); to be informed of the criminal offence under suspicion and the basis for the suspicion, when the police decide to initiate informal questioning or to interrogate the suspect (CCP, Article 148/IV); to be informed of the charges when interrogated by the investigating judge, either when brought in for interrogation (CCP, Article 203) or pending the investigating judge’s decision on the prosecutor’s request to open judicial investigation (CCP, Article 169).

5. Right of Access to Files The right to access to files under the CCP applies only to court files (CCP, Article 128). The issue remains unresolved regarding access to the police or prosecutor’s file. In this sense, the suspect or the accused may request access to a courtfile either during the preliminary procedure (if it exists) or during the judicial investigation. Access to files implies access to full documentation in the court file and obtaining copies (at the cost of the defence). Access will be granted to the suspect or the accused (CCP, Article 128/V) and, of course, his defence lawyer (CCP, Article 73). In addition, victims will also be granted access to the court file, after they have been interrogated as witnesses (CCP, 23

See Horvat (n 22) 318.

664 Slovenia Article 59/3). In fact, any person having a legitimate interest may have access (although with reservations when matters of national defence or security are in question, or when the public is excluded from the main hearing: CCP, Article 128/3). Access to a court file (for the defence) is possible at any time during and after the judicial investigation (in respect of any investigating measure undertaken before the judicial investigation was opened, including covert investigative measures etc). Before the opening of the judicial investigation, access to a court file will be possible: — — —

if any of the ‘formal’ (overt) investigative measures are undertaken; or after the arrested suspect is brought to the investigating judge for interrogation (CCP, Article 203); or when the prosecutor submits the request to open judicial investigation.

In the last two cases, the investigating judge will already have been presented with a criminal report and all of the information gathered during the preliminary procedure; the materials collected through covert investigative measures will also be available to the defence. There are cases where documents are stored separately from the main court file or erased from file, as in the case of evidence excluded from file (CCP, Article 83/3) and data on protected witnesses (CCP, Article 240a). Evidence excluded from file can only be accessed by the president of the court or by an appellate court, if it is necessary to decide or review a decision to exclude a judge (CCP, Article 83/4). Data on protected witnesses (CCP, Article 240a/1(1)) and any statements taken during an ex parte hearing on measures of witness protection (CCP, Article 240a/5) are stored separately and proclaimed officially secret. If the protected witness is interrogated anonymously, data can be accessed in order to verify the witness’s identity.

6. Right to Ask for an Act of Investigation and to Participate in the Investigation The CCP does not recognise the right of the suspect or the accused to investigate on his/ her own. Slovenian law does, however, recognise the right of the suspect to be present when formal acts of investigation are carried out in a preliminary procedure and the right of the accused to be present when acts of investigation are carried out during judicial investigation (CCP, Article 178/9). The police or the investigating judge are obliged to notify the suspect/accused and the defence lawyer, unless there is a danger of delay or if prior notification of a suspect would jeopardise the outcome of the investigation act.24 The CCP also recognises the right of the accused to ask for a specific act of investigation (CCP, Article 177). There is no such right during preliminary procedure. The request of the accused is handled by the investigating judge. If the investigating judge disagrees, the request is taken to a chamber of three judges that may either grant or reject the request. The court must comply with the request if:25 — —

24 25

the act proposed is relevant to the issue; and the defence substantiated the existence and the legal relevance of the proposed investigating act. Constitutional Court of the Republic of Slovenia, 2 July 2009, Up-3367/07. Constitutional Court of the Republic of Slovenia, 25 April 2002, Up-11/00.

Prosecution Measures 665 When in doubt, the court must follow the request, unless it is evident that the act will not be successful. Failure to comply with the right to ask for a special act of investigation will have no specific consequences during the judicial investigation. The accused may repeat the request to have evidence taken at the main hearing. If denied in accordance with the rules on such motions, he/she may either file an appeal to challenge the facts of the case or—if such a motion at the main hearing is denied unlawfully—may argue a substantial breach of procedure (CCP, Article 371/2), typically resulting in an annulment of the judgment and repeated main hearing.

E. PROSECUTION MEASURES

1. Opening of Criminal Proceedings (a) Starting the Investigation At the earliest of stages, it is usually the police that start the investigation ex officio (CCP, Article 148/1). If grounds exist to suspect that a criminal offence liable to public prosecution has been committed, the police shall be bound to take steps necessary for discovering the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or flee, detecting and preserving traces of crime or objects of value as evidence, and collecting all information that may be useful for the successful conduct of criminal proceedings. The police initiate investigations either on their own initiative or upon receipt of information giving rise to the suspicion above. The police are not entitled to drop the case. They must proceed with the investigation and either file a criminal report or submit a report stating that no grounds (in its opinion) exist for prosecution (CCP, Article 148/9, 10). The prosecutor may request the report be supplemented (CCP, Article 161). The state prosecutor, too, may ask the police to investigate, either when informed of the alleged crime by a criminal report, submitted by third parties, or even when rumours of a crime become known to the prosecutor (CCP, Article 161). Usually, the police or the state prosecutor are informed of the facts of the case through a criminal report. The CCP distinguishes between: —

—

a private criminal report (CCP, Article 146): any person may report a criminal offence which is liable to public prosecution; omission of a crime report is not illegal, with exceptions where failure to report a crime is itself considered a criminal offence; an official criminal report (CCP, Article 145): all state agencies and organisations having public authority are bound to report criminal offences liable to public prosecution of which they have been informed or which were brought to their notice in some other way; in submitting crime reports the agencies and organisations must indicate evidence known to them and undertake steps to preserve traces of the crime, objects on which or by means of which the crime was committed and other items of evidence.

Under CCP, Article 147, crime reports are submitted to the competent state prosecutor, in writing or orally. If a crime is reported orally, the person reporting it must be warned of the consequences of false accusation. Oral reports and reports received over the telephone must be entered in the record and officially registered. Crime reports submitted

666 Slovenia to the court, the police or to a state prosecutor that lack competence to proceed must be accepted and forwarded forthwith to the competent state prosecutor. There are no provisions as to the content of the crime report, with the exception of police crime reports (CCP, Article 148/9). The criminal report may be filed against an unknown suspect or a known suspect. (b) Decision to Prosecute There are two systems of prosecution in place in Slovenia: public (ex officio) and private. In principle, offences are prosecuted ex officio, unless otherwise provided by law. In this way, there are two types of prosecutors entitled to initiate prosecution: — —

state prosecutors; private prosecutors, ie victims of a crime.

However, the CCP allows for the injured party to initiate or continue the prosecution (where the state prosecutor has decided not to) as a subsidiary prosecutor. In the final stages of the preliminary proceedings, the state prosecutor decides whether to reject the criminal report or not, or to proceed by: — —

requesting the opening of the judicial investigation (CCP, Article 168); or by filing a direct indictment, ie an indictment not preceded by a judicial investigation (CCP, Article 170).

Under Slovenian law, the prosecutor’s decision to prosecute is typically expressed by filing a request for judicial investigation and later on by filing an indictment, if he finds sufficient grounds to do so after the judicial investigation is concluded. The state prosecutor decides autonomously whether to prosecute or not. Not only does he not seek approval of the court when filing or withdrawing the indictment, there is also no legal remedy against the decision of the state prosecutor to dismiss the criminal report, beyond the possibility of the injured party taking over the prosecution as subsidiary prosecutor (CCP, Article 60).

2. Ending the Investigation (a) Dropping Cases and Killing-off Investigations It is important to note that under Slovenian law, the police do not have the right to close an investigation. They may either file a criminal report or file a report stating no grounds for a criminal report exist (CCP, Article 148/9, 10). In both cases, the prosecutor may request that the police supplement the reports. The state prosecutor, however, may in effect kill off an investigation, if he decides to dismiss the criminal report (thus, refusing to request the judicial investigation be opened): the criminal report will be dismissed (CCP, Article 161/1): —

if it is apparent from the report itself that the reported act is not a criminal offence subject to prosecution ex officio; — if prosecution is barred by statute or the offence has been amnestied or pardoned; — if other circumstances exist which bar prosecution (ne bis in idem ...);

Prosecution Measures 667 — — — —

if no reasonable suspicion exists that the suspect has committed the indicated criminal offence; if he finds that the lesser meaning of the offence and the consequences of the criminal procedure are out of proportion; if he opts for one of the diversionary measures (CCP, Articles 161a and 162 CCP); or if he chooses to refrain from prosecution under CCP, Article 163 CCP.26

There is no remedy against the decision of the prosecutor, with the exception of the injured party acting as prosecutor. The prosecutor must inform the injured party and inform him of the possibility of initiating proceedings himself. In the event of diversionary measures, the injured party must consent to such measures, resulting in a loss of the right to initiate prosecution himself (CCP, Articles 161a, 162). The investigation may be killed off when the investigating judge refuses to open the judicial investigation. The investigating judge may only open judicial investigations when he finds reasonable suspicion exists that a specified person committed a specified crime (CCP, Article 167). If he disagrees with the prosecutor, he submits the request to a panel of judges (CCP, Article 169). They may either open the investigation or reject the request. The accused, the state prosecutor and the injured party have the right to appeal against their decision. If the injured party has appealed successfully, he takes over the role of the prosecutor. Finally, the judicial investigation may be stopped at any time in the course of an investigation by a panel of judges (CCP, Article 181): — — — — —

if it finds that the offence the accused is charged with is not a criminal offence; if circumstances exist which exclude criminal responsibility of the accused and there are no grounds for application of security measures; if criminal prosecution is statute-barred, or the offence is covered by amnesty or pardon, or other circumstances exist which bar prosecution; if there is no evidence that the accused has committed a criminal offence; or if the lesser meaning of the offence and the consequences of the procedure are out of proportion.

The panel may stop the investigation when deciding on an extension of detention or when giving a ruling in cases of disagreement between the investigating judge and the state prosecutor, or indeed when deciding any other issue during the investigation. The investigating judge does not have the power to kill off an investigation, unless the state prosecutor declares he is refraining from prosecution (CCP, Article 180). The judge informs the injured party of the prosecutor’s declaration. If the injured party does not take over the proceedings, the judge stops the investigation.

26 CCP, Art 163: ‘The state prosecutor shall not be obligated to start criminal prosecution, or shall be entitled to abandon prosecution: 1) where the Penal Code lays down that the court may or must grant remission of penalty to a criminal offender and the state prosecutor assesses that in view of the actual circumstances of the case a sentence alone without a criminal sanction is not necessary; 2) where the Penal Code provides for a specific offence a fine or imprisonment up to one year and the suspect or the accused, having genuinely repented of the offence, has prevented harmful consequences or compensated for damage and the state prosecutor assesses that in view of the actual circumstances of the case a criminal sanction would not be justified.’

668 Slovenia (b) Reopening Dropped Cases and Remedies It is possible to reopen a case where the criminal report has been dismissed by the prosecutor. The decision on dismissal has no ne bis in idem effect, with the exceptions of dismissal due to successful diversionary measures.27 However, in practice, the prosecutor may only reopen the case and prosecute the case when new facts and evidence are available, given that he has already exercised his right to prosecute when he decided to dismiss the report.28 In other cases, the possibilities of reopening a case after the investigation has ended are limited. First, it is possible to reopen the case, when a request for judicial investigation has been rejected by a final ruling of the panel of judges, due to the lack of the request by the authorised prosecutor, or of the motion of the injured party, or with the permission of a state agency or because of other circumstances which have temporarily barred prosecution (CCP, Article 408). The proceedings may be resumed at the request of the prosecutor as soon as the reasons for the rendering of such ruling cease to exist. And second, the investigation may be reopened, if the request for investigation was dismissed by a final ruling for lack of reasonable suspicion that the suspect or the accused has committed a criminal offence. The investigation may be reopened at the request of the prosecutor, provided new evidence is produced on the basis of which the panel can satisfy itself that conditions for starting criminal proceedings exist (CCP, Article 409). Decisions of the panel or the investigating judge to stop judicial investigation under CCP, Articles 180 and 181, however, have ne bis in idem effect. The investigation may not be reopened.

3. Diversion In the case of lesser offences, the prosecutor has the power to decide on one of the two diversionary measures available under Slovenian law: — —

settlement procedure (CCP, Article 161a); and conditionally suspended prosecution (CCP, Article 162).

These two measures constitute a departure from the principle of legality of prosecution. The prosecutor may resort to diversionary measures as an alternative to instituting prosecution, that is, when he finds no grounds for dismissal of the criminal report, provided that the type and nature of the offence, the circumstances in which it was committed, the personality of the offender, his or her prior convictions for the same type or for other criminal offences, as well as his or her degree of criminal responsibility warrant their application. Settlement procedure may be applied in the case of criminal offences for which a fine or imprisonment of up to three years is prescribed and criminal offences of aggravated bodily harm, grievous bodily harm, grand larceny, disavowal and damage to property. If the criminal report is submitted against a minor, settlement may be applied for criminal

27 28

See Horvat (n 22) 368. See ibid 317.

Prosecution Measures 669 offences carrying a prison sentence of up to five years. Conditionally suspended prosecution may be applied in the case of criminal offences for which a fine or imprisonment of up to three years is prescribed and criminal offences of facilitating drug-taking and substances prohibited in sports, grand larceny, disavowal, blackmail, business fraud, damage to property, misappropriation and unjustified use of other’s property and the presentation of bad cheques and the abuse of bank or credit cards. The same rule as with the settlement procedure applies when a criminal report is filed against a minor. The consent of the injured party and of the suspect is required for their successful application. The decision to apply these measures lies entirely with the prosecutor and no judicial authorisation is required. Likewise, there is no legal remedy against the prosecutor’s decision to apply or not to apply these measures. The consenting injured party is considered to have waived the right to initiate prosecution after the state prosecutor dismisses the criminal report (CCP, Articles 161a(6) and 162(5)).

4. Committing the Case to Trial Committal procedure under Slovenian law is intended to guard against frivolous or evidently unsubstantiated indictments. As already mentioned, the decision to file an indictment is an autonomous decision of the state prosecutor and typically takes place after the investigating judge deems the investigation finished and sends the file back to the state prosecutor.29At this point, the prosecutor may declare that he refrains from prosecution, request the investigation be supplemented or file an indictment so that the charges may be decided at the main hearing. The committal procedure has two phases. The first phase consists of a formal check to make sure the indictment containsall of the legally required components (CCP, Article 269): — — — — — —

personal data of the accused; description of the act; the statutory name of the criminal offence; indication of the court before which the trial is to be held; proposal as to which evidence is to be taken at the main hearing; particulars of the indictment that also lists, in accordance with the results of the investigation, evidence which establishes the key facts, arguments of the accused and the position of the state prosecutor on the allegations of the defence.

The formal check is performed by the judge assigned to be the chair of the panel at the main hearing. A formally invalid indictment will be returned to the state prosecutor to be amended. The accused will be served an indictment that satisfies the formal requirements. The second phase, however, takes place only upon an objection bythe accused to the indictment (CCP, Article 274) or upon a request of the judge assigned to chair the panel at

29 In cases when the prosecutor wishes to file a direct indictment (under CCP, Art 170, bypassing the judicial investigation) the consent of the investigating judge is required, except for offences carrying a sentence of less than eight years of imprisonment.

670 Slovenia the main hearing (CCP, Article 284). They may request the panel to rule that the charge be disallowed and the criminal procedure discontinued if it finds that (CCP, Article 277/1): — — —

— —

the act charged is not a criminal offence; or circumstances exist which exclude criminal liability and that there are no grounds for application of security measures; or the criminal prosecution is statute-barred, or the act is covered by an amnesty or pardon, or other circumstances exist which exclude prosecution (eg ne bis in idem); or there is not enough evidence to suspect with good reason that the accused has committed the act with which he is charged; or if the lesser meaning of the offence and the consequences of the procedure are out of proportion.

If no objection and no request of the judge is filed, or when the objection is dismissed or rejected, the indictment come into effect (CCP, Article 285) and preparation for the main hearing may begin. If, however, the panel decides to discontinue the proceedings, its decision terminatesthe procedure with ne bis in idem effect.

F. INVESTIGATION MEASURES

1. General Following the presumption of innocence and required standards of proof, the CCP requires that a specified amount of information exists prior to initiation of investigation, ie a standard of proof must be met. In this sense the threshold for the police to initiate gathering of information in preliminary procedure is ‘grounds for suspicion’ (CCP, Article 148(1)). The activities of the police and other participants in the preliminary procedure are aimed at gathering sufficient information to establish whether conditions for the opening of judicial investigation exist. The standard of proof is relatively higher: the threshold for the investigative judge to open judicial investigation, upon request of the prosecutor and against a specific person, is ‘reasonable suspicion’ (CCP, Article 167). In principle, the choice of investigation measures required during the investigation lies with the police, the state prosecutor and the investigative judge, depending on the rules governing specific measures. This does not imply, however, that the choice of investigative measure depends merely on its expected output and benefit to the investigation. The presumption of innocence, as already explained, requires application of any investigative measure be subject to principle of proportionality, reflected in the standard of proof that competent bodies need to show in order to proceed with a specific measure. In this sense, investigative measures can be ranked according to their gravity and intensity of infringing upon an individual’s legally protected interests.30

30 K Šugman, ‘Preiskovalna dejanja’ in K Šugman (ed), Izhodišcˇa za nov model kazenskega postopka (Ljubljana, Inštitut za kriminologijo pri PF v Ljubljani, 2006) 165ff.

Investigation Measures 671 The following overview of investigative measures under Slovenian law reflects the nature and the intensity of measures presented, starting with overt measures aimed at obtaining statements and ending in an overview of covert measures, considered most intrusive under Slovenian law.

2. Obtaining Statements from Suspects or Accused in Pre-Trial Procedure The recent regime of statement-gathering from suspects recognises three different situations. First, a statement may be obtained without prior information on the right to silence and to a defence lawyer. Such a situation will occur when police question a person (a citizen) who will only later gain the status of a suspect, or when the police fraudulently refuse to give proper instructions to a suspect. Such an official note must be excluded from file by the state prosecutor (CCP, Article 83(1)) and no judge will have any knowledge of its contents. There are, however, no apparent restrictions on the police or the state prosecutor acting on the information contained in such a statement in preparation of further investigation. Second, a statement may be obtained from a suspect who was properly informed of his rights, but has either waived his right to a defence lawyer or the lawyer failed to show in due time.31 In this case, the police may proceed with informal questioning, resulting in an official note (CCP, Article 148/VI), that may not, however, be used in evidence at the main hearing or quoted or referred to in a court judgment. There is, however, no provision for physical exclusion of the official note from the court file and the judge is acquainted with its contents. And third, the police (and not the state prosecutor) have been given the power to formally interrogate suspects, provided that a defence lawyer is present (CCP, Article 148a). This line of obtaining statements results in a formal record of the suspect’s statements and may be used in evidence at the main hearing. The latter two regimes apply regardless of whether the suspect is arrested and regardless of the type of offence under investigation. Neither informal questioning nor formal interrogation are mandatory at any stage of the preliminary police procedure. If they do take place, they may be repeated—as far as such conduct does not constitute coercion.32 Later on, these two forms of statement-gathering will be explored. In both cases, the investigation of the police has already focused on a particular person, for a particular offence. The right course of action for the police will depend on the decision of the suspect whether to retain a defence lawyer or not. (a) Informal Questioning of a Suspect The police may proceed with informal questioning of a suspect, after the suspect has been given an opportunity to contact a defence lawyer, but has chosen not to—or if the lawyer fails to attend on time. A waiver can only be valid after the suspect has been properly informed

31 In the case of a suspect who is not arrested, the lawyer must arrive within the time determined by the police. A minimum of two hours must be allowed for (CCP, Art 148/5). In case of an arrested suspect, the defence lawyer must arrive within two hours from the moment the suspect was given an opportunity to contact him (CCP, Art 157/4). 32 See Horvat (n 22) 317.

672 Slovenia of his rights as stated in CCP, Article 148/IV, given that his decision is voluntary. There are no provisions, however, regarding the manner in which suspects are to be informed of their rights or on the manner of recording waivers, should they decide so. It is important again to note that the suspect is granted the right to a defence lawyer after the police have sufficient and founded information to conclude that a particular person has committed a particular offence. The police investigation must therefore already be focused on that particular suspect. If the police proceed by informal questioning of a person who is still not the object of a focused investigation (not charged), they are not obliged to proceed according to CCP, Article 148/IV and instruct him of his defence rights. However, should that person at a later stage (during or after such an informal questioning) become the centre of investigation (ie becoming the person charged with the offence), the police must proceed under CCP, Article 148/IV.33 Should the police decide to informally question an arrested suspect, CCP, Article 148/IV applies by virtue of CCP, Article 157/III: The person deprived of freedom without a court decision shall in his capacity as suspect be immediately informed as provided by the provisions of the first paragraph of Art 4 and the fourth paragraph of Art 148 of this Act. When the person who has been deprived of freedom is a foreign citizen, the person shall be informed that, on the basis of his request, the body responsible must notify the consulate of the country in question about the person’s deprivation of freedom.

The informal questioning under CCP, Article 148/IV is an example of informal investigatory acts by the police. The official note is left on file—it is not excluded, as was the case with the first type of informal questioning (with no instruction about defence rights). Therefore, the court may not use it in evidence when rendering a decision on the charges in the indictment. However, the court may draw on the information contained therein when collecting evidence, or it may refer to it when rendering a decision on other issues arising prior or during the judicial investigation: a decision on search of premises or persons, a decision on pre-trial detention, a decision on opening the judicial investigation.34 (b) Formal Police Interrogation of a Suspect The police may proceed with a formal interrogation under CCP, Article 148a provided that the suspect chooses to contact a defence lawyer and the lawyer is present.35 The decision whether to obtain a defence lawyer or not lies entirely with the suspect.The police do not have the authority to appoint a defence lawyer to ensure the possibility of carrying out a formal interrogation. It is interesting to note that lawyers have repeatedly chosen not to attend at the police station, thus preventing the police from proceeding under CCP, Article 148a. The suspect’s statement, recorded during the formal police interrogation, may be used in evidence without any restrictions (provided, of course, it was obtained lege artis). Here

33

See ibid 312. Supreme Court of the Republic of Slovenia, 26 May 2005, I Ips 114/2005. 35 CCP, Art 148a: ‘(1) The interrogation of the suspect may only be conducted in the presence of the defence counsel’. 34

Preliminary

Informal questioning (CCP, Arts 148/ IV, VI)

Police

Official note

No

At large (CCP, Art 148) or detained (CCP, Art 157)

Phase

Measure

Body

Document

May be used in evidence

Other

Suspect

Preliminary

Suspect

At large or detained, provided a defence lawyer is present (at suspect’s disposal)

Yes

Record of interrogation

Police

Investigative judge

Formal interrogation (CCP, Art 169)

Preliminary

Suspect

Brought before the investigative judge to decide on pre-trial custodial detention; defence lawyer mandatory

Yes

Before opening of judicial investigation, interrogation mandatory. Since judicial investigation has not been opened, a term suspect is still in order.

Yes

Record of interrogation Record of interrogation

Investigative judge

Formal interrogation Formal interrogation (CCP, Art 148a) (CCP, Art 203)

Preliminary

Suspect

Modes of obtaining statement from suspect/accused in pre-trial procedure

The status of the ‘accused’ gained when judicial investigation opened.

Yes

Record of interrogation

Investigative judge

Formal interrogation

During judicial investigation

Accused

Investigation Measures 673

674 Slovenia lies the difference between the two regimes: in 2003, the legislator sought to provide the police with the means of gathering statements from a suspect, equal in their probative force to statements gathered during court interrogations (as this clearly was not the case with the informal questioning). (c) Formal Judicial Interrogation of a Suspect/Accused Judicial interrogation of a suspect or the accused is performed by the investigative judge and may take place either in the concluding phases of the preliminary procedure (when arrested suspect is brought before the investigating judge for further pre-trial detention (CCP, Article 203) or when the suspect is interrogated for the purposes of deciding on the opening of judicial investigation (CCP, Article 169/2) or later on during the judicial investigation.

3. Obtaining Statements from Other Persons (Including Witnesses, Injured Party) in Pre-Trial Procedure Similar to measures for obtaining a statement from suspects are the principles for obtaining statements from citizens (the injured party, potential witnesses) etc. Here, too, we need to distinguish between informal questioning of citizens and formal interrogation of witnesses (including the injured party). (a) Informal Questioning of Citizens The power to conduct informal questioning of citizens lies with the police (CCP, Article 148/1), as soon as the police believe there are grounds for suspicion of an offence prosecuted ex officio. The police may also summon persons to attend the informal questioning (CCP, Article 148/3); they may be forcibly brought to attend, if previously warned of such a possibility. The CCP holds very little other information on how to proceed with the informal questioning. Most importantly, the police may not examine citizens as witnesses. The effect of this prohibition is twofold. First, rules on formal interrogation of witnesses do not apply. Therefore, the manner of questioning lies very much at the discretion of the police. A person is—unlike a witness— not under a duty to provide any information to the police. If a person does give a statement, the essential information is summarised by the police officer and an official note is written. Second, informal notes may not be used in evidence. Caselaw, however, allows for a certain exception. Official notes may be used in support of court orders for searches, seizures, pre-trial custodial detention and opening of judicial investigation. In addition, official notes may be used in the evaluation of witness credibility. More specifically, although they may not be used to substitute official interrogation, a trial judge may use the official notes when assessing the testimony and its probative value.36

36

Supreme Court of the Republic of Slovenia, 18 January 2007, I Ips 65/2005.

Investigation Measures 675 (b) Formal Interrogation of Witnesses Formal interrogation may take place at any stage of the procedure. It is always conducted by a judge. Typically, it is carried out during judicial investigation and at the main hearing. Records on formal interrogation of witnesses may be used in evidence. In preliminary procedure, a judge will interrogate a witness upon motion of the state prosecutor (CCP, Articles 165, 165a) or—after a request for judicial investigation has already been filed—ex officio. In a preliminary procedure, interrogation of witnesses will be carried out only in cases of emergency (when interrogation at the main hearing is threatened). In order to secure their presence, there are various measures that both the police and the investigative judge have at their disposal: —

—

persons found at the scene of the crime, having residence abroad, may be sent by the police to the investigative judge, or be held until his arrival at the scene (but for no longer than six hours), if such persons supply information important for the criminal procedure and if it appears likely that an examination of these persons at a later date would be impossible or would significantly protract the procedure or cause other difficulties (CCP, Article 149/1); and persons may, of course, be summoned by the investigative judge for interrogation, with the possibility of being brought forcibly before a judge (CCP, Article 244).

(i) Restrictions There are several restriction regarding the interrogation of witnesses under Slovenian law. Under CCP, Article 235, (i) a person who, by giving testimony, would violate the obligation to keep an official or military secret, may not testify until the competent body absolves him of that obligation; and (ii) a defence lawyer may not testify on matters confided to him by the accused, unless the accused himself so requests. A recent decision of the Constitutional Court,37 however, introduced radical changes regarding interrogation of witnesses under a duty to keep secret data. The decision annulled a provision of the Police Act38 giving to the Minister of the Interior exclusive power to absolve police officers or police cooperatives from protecting secret data. The Court recognised the need to deny disclosure of various sensitive data (pertaining to the identity of persons, police tactics, national security etc). At the same time, it also recognised that the provision disproportionately restricts the rights of the defence, due to a lack of court supervision. Under an interim regime imposed by the court, the trial judge is required to submit a decision of the minister to the president of the appellate court for supervision. The police are required to submit both the secret data and the reasons for non-disclosure. The president of the appellate court may order the witness to testify and disclose secret data, reject disclosure altogether or—when secret data point to the identity of a witness—order any measure necessary to protect the identity of the witness during interrogation.

37

Constitutional Court of the Republic of Slovenia, 24 March 2011, U-I-271/08. Police Act (Zakon o policiji), Uradni list RS, No 49/1998, 43/2001 Odl US: U-I-407-98-25, 93/2001, 56/2002ZJU, 26/2003-ZPNOVS, 48/2003 Odl US: U-I-272/98-26, 79/2003, 110/2003-UPB1, 43/2004-ZKP-F, 50/2004, 54/2004-ZDoh-1, 102/2004-UPB2, 53/2005, 70/2005-UPB4, 98/2005, 113/2005-ZJU-B, 3/2006-UPB5, 36/2006 Odl.US: U-I-152/03-13, 78/2006, 107/2006-UPB6, 14/2007-ZVS, 42/2009, 47/2009 Odl US: U-I-54/06-32, 66/2009-UPB7, 22/2010, 26/2011 Odl US: U-I-271/08-19, 58/2011-ZDT-1. 38

676 Slovenia Further restrictions relate to privileged witnesses and the right to refuse an answer to a particular question.CCP, Article 236 enumerates persons that may waive testimony (privileged witnesses). These persons are: — — — — —

the spouse of the accused or the person with whom he lives in a domestic partnership; persons related to the accused by blood in direct line, persons related to him collaterally at three removes and persons related to him by marriage at two removes; the adopter or adoptee of the accused; a father confessor, on matters confessed to him by the accused or by another person; a lawyer, doctor, social worker, psychologist or other person, on facts he came to know in the exercise of his profession, if bound by the duty to keep secret what he learns of in the exercise of his profession, except in instances referred to in CCP, Article 65/3,39 or if statutory conditions are fulfilled under which such persons are absolved from the duty to keep secret or are bound to disclose confidential information to competent bodies.

Under CCP, Article 238, a witness is not obliged to answer those questions by which he would be likely to disgrace, inflict considerable material damage or make liable to criminal prosecution himself or his close relatives. (ii) Special Modes of Witness Interrogation There are four special modes of witness interrogation: confrontation, witness identification procedure (CCP, Articles 242, 242a), interrogation of protected witnesses (CCP, Article 204a), and interrogation via video conference (CCP, Article 244). Witnesses may be confronted if their testimonies regarding material facts are mutually at variance. Such witnesses must be examined separately about each circumstance on which their testimonies clash and their answers must be entered in the record. Only two witnesses may be confronted at a time (CCP, Article 241/3). Witness identification procedure takes place when there is a need to establish whether a witness can recognise a person or an object. The witness will first be asked to describe them and indicate their distinctive features. Only after that may the witness be shown the person, together with other persons unknown to him, or the object together with other objects of the same kind if possible. Identification by means of other senses (hearing, touch, smell etc) is also possible and will proceed in a corresponding way (CCP, Article 242/1). Before identification, the witness must be warned that it is his/her duty to speak the truth and that he/she may not withhold anything and that a false testimony is a criminal offence. A witness shall also be instructed that he/she need not answer questions referred to in CCP, Article 238 (CCP, Article 242/).The judge who conducts the identification process shall ensure that before the identification, the witness does not see the persons or objects he is about to identify (CCP, Article 242/3). A record of the identification shall be made and a group photograph of all the persons viewed shall be enclosed with it (CCP, Article 242/4). If the life or body of the person doing the identification or his close relatives (points 1 to 3

39 In case of offences against sexual inviolability, the criminal offence of neglect of minors and cruel treatment, the criminal offence of trafficking in human beings against minors under 15 years of age.

Investigation Measures 677 of CCP, Article 236/1) is at serious risk, or there is a likelihood that the person being identified might influence the course of the identification process, the identification shall be conducted in such a way that the person being identified cannot see the person making the identification (CCP, Article 242a). Interrogation of protected witnesses (CCP, Article 240a) is accompanied by a series of security measures, if [T]here are reasonable grounds for believing that disclosure of the personal data or whole identity of a certain witness could endanger his/her life or body, or the life or body of his/her close relatives or of persons proposed by the witness in accordance with the provisions of Witness Protection Act.40

The court may order one or more of the following measures to protect him or his close relative: (1) deletion of all or certain personal data of the witness from the criminal case file; (2) the marking of all or some of the data from the preceding point as an official secret; (3) the issuing of an order to the accused, his counsel, the injured party, or their legal representative and attorneys to keep certain facts or data secret; (4) the assignment of a pseudonym to the witness; (5) the taking of testimony using technical devices (protective screen, devices for disguising the voice, transmission of sound from separate premises and other similar technical protective devices). Protective measures are ordered in writing by the investigating judge upon the motion of the state prosecutor, the witness, the injured party, the accused, their legal representatives and attorneys, or ex officio. The ruling may not contain data that could lead to the disclosure of data that are the subject of the protective measure. A ruling on the use of protective measures by means of which the identity of the witness is entirely concealed from the accused and his counsel (anonymous witness) may only be issued by the investigating judge after a special hearing has been held, if he assesses: (1) that there are reasonable grounds for believing that the disclosure could endanger the life or body of the witness, or the life or body of his immediate family member, or of persons proposed by the witness in accordance with the provisions of the Witness Protection Act; (2) that the witness’s testimony is important to the criminal proceedings; (3) that the witness shows a sufficient level of credibility; and (4) that the interests of justice and the successful conduct of criminal proceedings outweigh the interests of the defence in knowing the identity of the witness. During the testimony of such a witness in relation to whom the measures have been ordered, the investigating judge shall prohibit any questions whose answers could disclose protected information. Interrogation of a witness may take place via video conference (a) when interrogating a protected person under the Witness Protection Act, when presence at the court would result in a serious danger to life or health of the person or other persons (the spouse of 40 Witness Protection Act (Zakon o zašcˇiti pricˇ) Uradni list RS, Nos 113/2005, 61/2006, 81/2006-UPB1, 117/2006-ZDoh-2, 110/2007.

678 Slovenia the accused or the person with whom he lives in domestic partnership, persons related to the accused by blood in direct line, persons related to him collaterally at three removes and persons related to him by marriage at two removes, the adopter or adoptee of the accused) or persons suggested for protection under the Witness Protection Act; (b) when interrogating an anonymous witness, under the conditions set out above; (c) when the competent body has issued a request to another state according to the law or international treaty; or (d) when, due to justifiable grounds, it is not required or possible for the person to appear before the body in charge of interrogation. A person appointed by the body in charge must be at the side of the person interrogated to secure identification.

4. Experts and Expert Assistance Experts may be summoned at the earliest stages of investigation: the police have power to order expert examination, except post mortem examination and exhumation (CCP, Article 164/2), as urgent acts of investigation, typically when an expert’s presence at the crimescene inspection will be beneficial for his expertise and opinion. Under Slovenian caselaw, we need to distinguish (a) expert assistance of police experts, employed with the police at the National Forensic Laboratory or local police units, and (b) expert examination provided by court-sworn experts. The distinction arose due to a decision of the Constitutional Court, No U-I- 132/95,41 that in effect prohibited the appointment of the National Forensic Laboratory (NFL) as a court-sworn expert body. The NFL is attached to the police general directorate and thus a part of the police force in charge of investigation of offences. Appointing the NFL as an expert body raised doubts as to the impartiality of the court, given that the experts appointed by the court are deemed to be assistants to the court. The result appeared to be somewhat stressful for the courts, given that in many areas of expertise the NFL was the only option available to the courts when expert examination was required. The caselaw responded in two ways. First, courts have taken the view that police expert opinions, rendered by the NFL or other police experts, may also be considered in evidence—but not in the sense of court-sworn expert examinations. The authors of the expert opinions do not hold the position of court-sworn experts and are therefore not assisting the court. Instead, they are treated similarly to witnesses. Second, courts did not hesitate to appoint employees of the NFL as court-sworn experts. Quite soon, objections were also raised as to the admissibility of such expert examinations given by employees of the NFL. Under current caselaw, such objections were rejected. The fact that the expert is employed by the NFL alone does not give rise to doubts of the court’s impartiality.42 The result of the development is, in fact, a deepening sense of inequality of the parties in criminal procedure. On one side, courts regularly take into evidence expert opinion produced by police experts, while at the same time refusing to do so when it is the defendant that produces a privately obtained expert opinion. Instead, they consider the defendant’s expert opinion merely as a motion to appoint an expert or to supplement an already existing expert opinion.43 41 42 43

Constitutional Court of the Republic of Slovenia, 8 January 1998, U-I-132/95. Supreme Court of the Republic of Slovenia, 9 July 2009, I Ips 500/2008. Supreme Court of the Republic of Slovenia, 2 July 2009, I Ips 159/2009.

Investigation Measures 679 The CCP governs the following types of expert examination in more detail: post mortem examination and autopsy (CCP, Articles 259–62), expert toxicological analysis (CCP, Article 263), in the case of bodily injuries, examination of the person injured (CCP, Article 264), psychiatric examination of the accused (CCP, Article 265), physical examination of the accused (CCP, Article 266), expert audit of account books (CCP, Article 267).

5. Production Orders and Seizure Production orders, ie orders requiring persons to produce documents, objects or information, are hardly systematically regulated under Slovenian law of criminal procedure. In general, the required standard of proof is low: reasons for suspicion of an offence prosecuted ex officio typically suffice. In case of sensitive, privileged data, a court order procedure is typically required. In case of documents or objects, a production order is issued prior to seizure of documents. Seizure (CCP, Article 220) is generally considered a measure aimed at securing physical possession of object/documents in order to secure its further use in criminal procedure. It is implemented by (typically) the police taking objects/documents in their exclusive possession, either as a stand-alone measure (CCP, Articles 148 and 164) or after person complies with the court production order that the police are authorised to execute (CCP, Article 220/4). During judicial investigation, it is the investigative judge that in principle holds powers of seizure. In practice, the judge entrusts the execution to the police (CCP, Article 172/3). A production order itself is a measure substituting measures such as search of premises or persons, covert production orders etc, inasmuch as it allows the person to avoid an invasive measure of greater intensity. (a) Production and Seizure of Objects and Documents Production order of objects and documents is considered a preliminary phase of seizure. Subject to seizure are (i) objects which must be seized under the CC, or (ii) objects which may prove to be evidence in criminal procedure. CCP, Article 220/2 requires that custodians of such objects hand them over at the request of the court (after issuing a production order). Although there is no general provision empowering the police to issue such an order, issuing police production orders in order to avoid invasive investigative measure, when appropriate, is acceptable.44 The only explicitly regulated example of a police order of production is a request to hand over sought objects (or persons, when a search is aimed at securing arrest) prior to search of premises or persons (CCP, Article 215/3). If the person refuses to comply (or does not comply in full, as specified in a search order), a search is conducted and no sanction applies. The order of the court may be issued as a part of a search order or as a stand-alone order. There is a general duty to comply. A custodian who declines to deliver the objects may be fined and—if he still refuses to surrender the requested documents—may be arrested until compliance is achieved, but no longer than one month. Under the CCP, 44

Constitutional Court of the Republic of Slovenia, 1 July 1999, Up-62/98.

680 Slovenia there is no privilege of a suspect/accused to refuse compliance. Commentators take the view that there is a restriction regarding the duty to hand over court-requested materials regarding an alleged perpetrator, persons under CCP, Article 235 and persons holding the status of privileged witnesses under CCP, Article 236, including lawyers and other persons having professional privilege.45 However, such a restriction has no basis in the CCP and may be disputed. There are, however, provisions that restrict seizing of documents of state agencies and enterprises (CCP, Article 221): —

—

state agencies may decline to have their documents and papers inspected or to deliver them, if they consider that disclosure of their contents would harm the general interest; if so, the final decision on a production order is referred to a panel of three judges with the district court; enterprises and other juridical persons cannot decline production, but may request that information concerning their business be not published.

(b) Production of Personal Data (i) General Under CCP, Article 143/1, all personal data controllers (private or public) must submit data they have collected to the court, at its request and free of charge, even without the personal consent of the individual to whom the data refer, if the court states that the data are required for conducting a criminal procedure. The police and the state prosecutor have similar powers under Article 55 of the Police Act and Article 182 of the recently adopted new State Prosecution Act.46 (ii) Covert In general, personal data controllers must—at the request of the individual in question— disclose information regarding production of personal data (Personal Data Protection Act, Article 30).47 However, under Article 55 of the Police Act, the Minister of the Interior may order that state bodies, organisations or other persons may only provide such information after a specified period of time, but no longer than five years. Similarly, under CCP, Article 149b/3, the police have the power to covertly collect personal data of an owner or user of a certain means of electronic communication, if such data are not yet publicly available in a relevant public directory. Operators of the electronic communications network must comply with a written order without the consent or knowledge of the individual to whom the information refers.

45

Horvat (n 22) 520. State Prosecution Act (Zakon o državnem tožilstvu) Uradni list RS, No 58/2011. 47 Personal Data Protection Act (Zakon o varstvu osebnih podatkov) Uradni list RS, Nos 86/2004, 113/2005ZInfP, 51/2007-ZUstS-A, 67/2007, 94/2007-UPB1. 46

Investigation Measures 681 (c) Production of Financial Data (i) General Under Article 181 of the Payment Services and Systems Act,48 all payment services providers (banks etc), collecting and storing personal data, must submit this data to the courts, state prosecutor, Police and other bodies, requiring the data for purposes of procedures carried out under their competence in the field of prevention, uncovering, determining and prosecuting criminal offences and misdemeanours, connected with payment frauds. (ii) Covert Production Orders Under CCP, Article 156/1,5, the investigating judge may, upon a properly reasoned request by the state prosecutor, order a bank, savings bank or savings-credit service to disclose to him information and send documentation on the deposits, statements of account and account transactions or other transactions by the suspect, the accused and other persons who may reasonably be presumed to have been implicated in the financial transactions or deals of the suspect or the accused, if such data might represent evidence in criminal proceedings or are necessary for the confiscation of objects or the securing of a request for the confiscation of proceeds or property in the value of proceeds. The bank, savings bank or savings-credit service may not disclose to their clients or third persons that they have sent, or will send, the information and documents to the investigating judge. Reasons for suspicion suffice. (d) Production of Data Required to Access Electronic Devices Under CCP, Article 219a/6 the owner or user of an electronic device must enable access to the device, produce coding keys, password and provide explanations about the use of the device, when necessary for the search of such a device. There is a general duty to comply. Alleged perpetrator, privileged witnesses (CCP, Article 236) and witnesses exempt from interrogation (CCP, Article 235) are not subject to sanctions. They are not, however, explicitly exempt from the duty to comply. A production order may only be issued during a search of electronic devices, which may only be conducted upon a court order when grounded reasons for suspicion exist.

6. Access to Premises Under Slovenian law, access to premises is governed both by a general police power and by a measure integrated with the powers of crime-scene examination and search of premises. The nature of these rules will vary according to the nature of premises. More specifically, their application will depend on whether the protected premises are private. In such a case, Article 36 of the Constitution applies, providing that: (i) no one may enter or search the dwelling or other premises of another person without a court order; unless (ii) this is 48 Payment Services and Systems Act (Zakon o placˇilnih storitvah in sistemih) Uradni list RS, Nos 58/2009, 34/2010, 9/2011-ZPlaSS-B.

682 Slovenia absolutely necessary for the direct apprehension of a person who has committed a criminal offence or to protect people or property, subject to conditions provided by law, or (iii) a person has consented to such an intrusion. Consent amounts to a waiver of the right to privacy. Rules on the validity of such a waiver are fairly lax. There is no requirement for the person to be informed of the possibility of refusing consent. It is sufficient that a person is: (i) aware of the nature and of the purpose of entry or search of premises, (ii) does not actively oppose entry or search of premises, and (iii) does so voluntarily.49 The issue of privacy protection will—in doubt—be settled under the test of reasonably expected privacy.50 The settled rules may be summarised as: apart from a person’s dwelling (including basement, garage, surrounding visibly marked piece of land or any functionally related detached premise), business premises are also considered private under ECHR caselaw.51 Vehicles, however, are in principle not subject to privacy protection,52 allowing for exceptions, such as campers. Nevertheless, the CCP requires application of rules on search of premises in case of hidden vehicle compartments (CCP, Article 216/6). (a) General Police Powers of Entry Under Article 47 of the Police Act, the police may enter apartments and other premises if necessary to prevent suicide, if it is so necessary in order to confirm circumstances indicating death of a certain person on the premises, or if necessary to prevent a specific danger to people or property. After applying these rules, the police may proceed, if necessary, under rules of search of premises. (b) Powers of Entry for Purposes of Investigation (i) Inspection of Premises and Vehicles under CCP, Article 148 The police have power to inspect in the presence of the responsible person specific facilities, premises and documentation of enterprises and other legal entities, as well as vehicles, passengers and luggage (CCP, Article 148/2). Inspection under CCP, Article 148 may not amount to a conduct similar in nature to search of premises. In particular, it may not amount to forcible breach of the integrity of the premises and objects therein. The police must remain essentially passive. In the case of such a more intrusive conduct, rules on search of premises apply.53 (ii) Crime-scene Inspection There is no specific statutory rule on the right of the police to enter premises for the purpose of crime-scene inspection. This has led to the question of proceeding with crimescene inspection when privacy must be respected. Currently, the CCP does not resolve the 49

Constitutional Court of the Republic of Slovenia, 18 June 2009, Up-2054/07. Eg Constitutional Court of the Republic of Slovenia, 8 May 2003, U-I-272/98. 51 Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992). 52 Constitutional Court of the Republic of Slovenia, 16 October 2004, Up-430/00. 53 Supreme Court of the Republic of Slovenia, 11 December 2002, I Ips 210/98; see also P Gorkicˇ ‘Pregled, preiskava in garantna funkcija sodišcˇ’ [2006] Pravna praksa, nos 28, 29, 30, 13–15 and 20–22. 50

Investigation Measures 683 issue. Supreme Court of Slovenia has recognised the need to respect privacy in cases of crime-scene inspection.54 (iii) Access to Premises Under CCP, Article 218/1 The CCP, too, is careful to distinguish between mere entry (access) and further search of premises. As a power of investigation, police officers may without a court order enter the accommodation and other premises of a person: — — — — —

if the occupant so desires; if someone is calling for help; if a perpetrator caught in the act of committing a criminal offence is to be apprehended; if reasons of safety of people and property so require; and if a person whose apprehension or compulsory production under a decree of the competent state agency, or a person being prosecuted, is to be found in the dwelling or other premises.

Police may proceed with a search only ‘if necessary’ (CCP, Article 218/1), in order to directly apprehend a perpetrator or secure persons or property. In other cases, a court search order is required.

7. Search of Premises, Persons and Electronic Devices Searches of premises, persons and electronic devices may, in principle, be conducted only with a court order and given grounded reasons for suspicion of an ex officio prosecuted offence having been committed (CCP, Articles 214, 219a/1). A search is typically conducted in preliminary procedure by police officers. A search of premises and search of persons may in principle only be conducted in the presence of two adult witnesses (CCP, Article 216/3). The CCP does not distinguish between a search of suspect’s premises and a search of other’s premises; the same rules apply. Order must be in writing and must contain: (i) information about the person to be searched or whose premises are to be searched, (ii) reasoning as to the level of suspicion, the person (the alleged perpetrator), (iii) traces or objects of the search, (iv) reasons giving rise to the probability that the intended search will produce the person, traces or objects of the search, and (iv) the premises, if applicable.55 (a) Search of Premises (i) Execution: General Searches of premises should be conducted between 6 am and 10 pm. They may be conducted outside these times if they began within these hours and are not completed by 10 pm, if there are reasons referred to in CCP, Article 218 or if the investigating judge assesses that 54 55

Supreme Court of the Republic of Slovenia, 18 October 2007, I Ips 291/2007. Supreme Court of the Republic of Slovenia, 28 November 2002, I Ips 214/97.

684 Slovenia a delay could lead to destruction of traces of a criminal offence or of items important for criminal procedure and specifically permits this (CCP, Article 215/5). In principle, searches are to be conducted in a manner, which least infringes upon other person’s rights. The executing officers do, however, have powers to use force against closed/ locked objects or rooms in order to secure access, if their owner is not present or refuses to provide access (CCP, Article 216/2). The suspect must in principle be notified of the search and has the right to be present (CCP, Article 178/5, 9). The person whose premises are being searched (not necessarily the suspect) must be served with the search order (CCP, Article 215). A search may be undertaken without the prior presentation of the order, if armed resistance is expected, or the search has to be conducted instantly and without warning, or where a search is conducted in public areas. Secret entry into premises is prohibited, with the exception of a secret entry onto premises for the purposes of secret surveillance under CCP, Article 151. The person being searched has the right for an attorney to be present, whether the person is an alleged perpetrator or not (CCP, Article 215/2). The search is put off until his arrival, but for no longer than two hours. In case of searches of third persons, the alleged perpetrator has the right to be notified and present. If he has retained a defence lawyer, he must be notified as well, unless there is danger of delay (CCP, Article 178). The record of the search must contain identification data for the device, time of the search, persons involved or present at the search, manner of execution etc. (ii) Exceptions to Court-order Requirement The police may execute a search of premises given person’s consent or under conditions set out in CCP, Article 218/1. Recent caselaw56 has established rules on searches of premises in use (meaning, enjoying privacy) by more than one person, that may be summarised as follows: — —

—

—

in principle, the search order must refer to all of the persons using the premises; these must be, insofar as practicable, be sought out and included in the search warrant; in case of common authority of persons over the premises, where the order refers to one of these persons, it suffices that one of the persons holding authority is issued with the order, and the search may be conducted with the premises under common authority; in case of common authority, it suffices that one of the persons holding authority over the premises, gives consent in order for the search of premises to be valid without a court order; where premises consist of rooms under common authority as well as rooms under exclusive authority of one of the persons, his/her consent applies only to rooms under common authority and rooms under exclusive authority of the person giving consent.

Similar to searches without court order are cases when objects found are not related to the offence under investigation. In this case, these objects are described on the record and

56 Supreme Court of the Republic of Slovenia, 23rd February 2006, I Ips 14/2005; Constitutional Court of the Republic of Slovenia, 4 March 2010, Up-3381/07.

Investigation Measures 685 confiscated, and a certificate of confiscation is immediately issued. A notification thereof must immediately be sent to the state prosecutor to start criminal prosecution. The objects confiscated are to be returned immediately if the state prosecutor finds that there are no grounds for criminal prosecution, nor any other statutory grounds for confiscating the objects (CCP, Article 217). (iii) Specific Rules Search of Lawyer’s Office Under Article 8 of the Attorney’s Act,57 search is allowed only upon an order of the court (therefore no exceptions under CCP, Article 218 apply) and only regarding files and objects explicitly stated in the order; confidentiality of other papers and objects must not be endangered.58 A representative of the Slovenian Bar must be present. Search of Notary Public’s Office Under Article 26 of the Notary Act,59 search and seizure of papers, money, securities, business books and other documents of the notary’s office may only be conducted with regard to papers and objects, explicitly stated in the search order in a criminal procedure. A representative of the Chamber of Notaries must be present. (b) Search of Persons Rules on search of persons are similar to rules on search of premises: a search is valid with a court order, unless consent is given or if a search is subject to CCP, Article 218/4: — —

when police are executing an order on the compulsory appearance of a person or when apprehending a person; and provided grounds exist to suspect that the person is carrying weapons for attack or that he will throw away, hide or destroy objects which must be taken away from him as evidence in criminal proceedings. In these cases, no witnesses are required.

(c) Search of Electronic Devices (CCP, Article 219a) The term ‘electronic device’ involves all electronic devices, devices connected to electronic devices and carriers of electronic data, such as a telephone, telefax, computer, disks, optical media, memory cards etc. The search may only be conducted on the basis of: —

ex ante written consent of the owner and of all the user, known and reachable to the police, that are justified to expect privacy regarding the device; or

57 Attorneys Act (Zakon o odvetništvu) Uradni list RS, Nos. 18/1993, 24/1996 Odl US: U-I-201/93-19, 24/2001, 48/2001 Odl US: U-I-371/98-34, 111/2005 Odl US: U-I-212-03-14, 54/2008, 35/2009. 58 Constitutional Court of the Republic of Slovenia, 15 April 2010, Up-2530/06. 59 NotaryAct (Zakon o notariatu) Uradni list RS, Nos 13/1994, 48/1994, 82/1994, 41/1995 Odl US: U-I344/94-19, 1/1999 Odl US: U-I-125/95, 83/2001-OZ, 73/2004, 23/2005-UPB1, 98/2005, 4/2006-UPB2, 17/2006ZIZ-C, 115/2006, 2/2007-UPB3, 33/2007-ZSReg-B, 45/2008.

686 Slovenia —

a written court order, that must also contain the data for device identification, identification of data the search is targeting; the court order is issued upon a motion of a state prosecutor.

CCP, Article 218 does not apply. Instead, a verbal court order may be issued in cases of emergency. In such exigent circumstances (direct and serious danger for the safety of people or property), a verbal court order is possible upon motion of state prosecutor. Within 12 hours following the issue of a verbal order, a written order must be issued, or the police will destroy the data gathered. The owner or the user of the device must enable access to the device (passwords, coding keys etc) and may be fined or detained for lack of it, unless he be a suspect or a witness under CCP, Article 235, 236). The search and handling of data must observe strict standards regarding chain of evidence, making sure the integrity of original data remain intact (CCP, Article 223a). 8. On-line Search of Computers There are no statutory rules authorising the on-line search of computers in the Slovenian legal system in general. Such a search would inevitably lead to a breach of a right to privacy of correspondence that requires special statutory authorisation under Article 37 of the Constitution. Thus, on-line search of computers is not permitted. There are, however, the following investigation measures that are of a similar nature in a sense that they allow either access to on-line data or access to data stored in computer systems) and are available under Slovenian law: —

—

—

on-line police patrol: although there are no special provisions, it is held that the police may conduct on-line police patrols, insofar as they do not withhold their identity when approaching other users; such conduct amounts to covert investigatory measures and should not be allowed; on-line patrols may be conducted under general powers of investigation (CCP, Article 148), at the level of reasons for suspicion;60 covert control of a computer system of banks or other legal entities, performing financial or other economic activity (CCP, Article 150/1/3): this measure may target exclusively computer systems of legal persons mentioned above and does not apply to control of computer systems of natural persons; and search of electronic devices under CCP, Article 219a: this measure, however, clearly does not amount to on-line search, since it requires physical possession of computer or other electronic device.

9. Data-mining and Profiling There are no rules specific to data mining and profiling under Slovenian CCP. Both may, however, be conducted on the basis of data gathered by means of other measures, eg via

60 M Bogataj Jancˇicˇ, B Makarovicˇ, J Toplišek, G. Klemencˇicˇ and K Ticˇar, Pravni vodnik po internetu (Ljubljana, GV založba, 2007).

Investigation Measures 687 search of electronic devices, collecting personal data (through production orders or other investigative measures). Profiling is considered an analytical method for purposes of criminal investigation.61 Its legal underpinnings are provisions of the Police Act on collecting and managing personal and other data (Articles 54ff of the Police Act). A similar approach is taken with data-mining, as a virtually integral part of a search of electronic devices.

10. Covert Investigative Measures (a) General Covert investigation measures are considered the most invasive investigation measures in Slovenian criminal procedure. They differ from other investigation measures in several respects. First, covert measures can reasonably take place only in a preliminary procedure. Opening of judicial investigation naturally requires disclosure of the very existence of investigation activities, rendering the application of covert measures meaningless. Covert measures are therefore governed by provisions of the CCP that apply only to preliminary procedure. Some covert measures can also be found in the Police Act. Second, covert measures typically require a deeply invasive encroachment upon individual’s privacy and other constitutionally-protected personality rights. Particular covert measures often represent a combination of encroachments upon several constitutionally-protected rights, typically protection of the privacy of correspondence and other means of communication (Article 37 of the Constitution), inviolability of dwellings (Article 36 of the Constitution) and protection of personal data (Article 38 of the Constitution). Third, covert measures are—covert. At their heart lies a legally approved deceptive behaviour of state bodies by maintaining the impression of inviolability of the aforementioned constitutional rights during the execution of such measures. And fourth, covert measures are essential to proactive criminal investigation. (b) Types of Covert Investigation Measures under Slovenian Law Covert measures, although in principle applicable in exceptional cases for severe crime, nevertheless appear as a numerous and heterogeneous group of investigation measures. The most commonly used criterion to systematise covert measures is the body competent to order their application. The following covert measures must be ordered by the investigating judge upon motion of the state prosecutor: —

—

61

secret tracking and surveillance (on public premises) with application of technical means for audio recording or for assessment of a suspect’s location (with covert entry into vehicles or other protected premise or object), or when secret tracking is executed on private premises or against a person not suspected of a crime (CCP, Article 149a/6); undercover operations, when undercover operatives use technical means of audio or video recording or photographing (CCP, Article 155a/4);

D Maver and others, Kriminalistika, 2nd edn (Ljubljana, UL RS, 2004) 208.

688 Slovenia — —

gathering of communication traffic data (CCP, Article 149b/1); monitoring of electronic communications using listening and recording devices and the control and protection of evidence on all forms of communication transmitted over the electronic communications network (CCP, Article 150/1(1)); — control of letters and other parcels (CCP, Article 150/2(1)); — control of the computer systems of banks or other legal entities which perform financial or other commercial activities (CCP, Article 150/1(3)); — wire-tapping and recording of conversations with the permission of at least on person participating in the conversation (CCP, Article 150/1(4)); — bugging and surveillance in another person’s home or in other areas with the use of technical means for documentation and where necessary secret entrance into the aforementioned home or area (CCP, Article 151); — disclosure of information and documentation on the deposits, statement of account and account transactions or other transactions by the suspect, the defendant and other persons (CCP, Article 156/1); — tracking of financial transactions of the suspect, the defendant and other persons and disclosure of confidential information regarding the transactions (CCP, Article 156/3). The following are measures ordered by state prosecutor: — — — —

secret tracking and surveillance (on public premises) (CCP, Article 149a), unless the investigating judge is competent; undercover operations (CCP, Article 155a), unless the investigating judge is competent; feigned purchase, feigned acceptance or giving of gifts or feigned acceptance or giving of bribes (CCP, Article 155); and falsification of undercover operative’s identity (Article 48a of the Police Act).

The police are themselves competent to request information about the owner or user of a certain means of electronic communication from operators of the electronic communications network (CCP, Article 149b/3). An immediately apparent drawback of such a classification is that the prevailing constitutionally-protected right is not identified in reference of a particular covert measure. Alternatively, it is possible to classify the measures under Slovenian law into three groups. First is the group of measures that as a whole infringe upon the general right to act freely (Article 35 of the Constitution), simply by withholding or falsifying information that is relevant to an individual (eg a policeman’s identity or the fact that confidential banking data is being disclosed to investigating judge) when deciding how to act in contact with other persons.62 This group includes measures under CCP, Articles 149a, 155, 155a and 156,and Article 48a of the Police Act. Second is the group consisting of measures that infringe upon right to communication privacy (Article 37 of the Constitution), such as measures under CCP, Articles 149b/1, 150 and 151. The third group consists of covert disclosure of personal data, such a measure under CCP, Article 149b/3.

62

Constitutional Court of the Republic of Slovenia, 8 May 2003, U-I-272/98.

Investigation Measures 689 (c) General Principles of Admissibility of Covert Measures Under Slovenian Law (i) Principle of Legality Principle of legality (lex certa) requires that covert measures must have a clear and specific statutory basis (eg Article 37 of the Constitution). The CCP in this sense carefully regulates both the phase of decision-making (whether to apply a specific covert measures) and the phase of execution. Statutory provisions need to be specific enough to prevent arbitrary decision-making and to enable assessment of the nature of a particular measure and determine the limits of justified intrusion in the individual’s privacy.63 (ii) Principle of Proportionality The principle of proportionality is demonstrated, first of all, through the level of suspicion required for covert measures to be instituted in the first place. The level of ‘grounded reasons for suspicion’ that typically applies,64 requires that suspicion be articulated, with reference to specific pieces of information, that enable effective judicial control over the institution of measures.65 The level of suspicion is in this respect close to the ‘reasonable suspicion’ standard required for custodial detention. It reflects the importance of privacy and general freedom to act freely, as protected by the constitution. Secondly, the proportionality principle requires that covert measures be used only in response to particularly serious crimes. To that end, the Slovenian CCP adopted the wellknown method of cataloguing criminal offences that may be investigated using covert measures. For example, measures governed by CCP, Article 150 may only be used to investigate: —

— —

63

criminal offences against the security of the Republic of Slovenia and its constitutional order, and crimes against humanity and international law for which the law prescribes a prison sentence of five or more years; other criminal offences for which the law prescribes a prison sentence of eight or more years; and criminal offences of abduction (CC, Article 134), the showing, possession, manufacture and distribution of pornographic material (CC, Article 176), illicit production and trafficking of narcotics, illicit substances in sports and their precursors (CC, Article 186), facilitating of drug-taking or consumption of substances illegal in sports (CC, Article 187), blackmail (CC, Article 213), abuse of inside information (CC, Article 238), unauthorised acceptance of gifts (CC, Article 241), unauthorised giving of gifts (CC, Article 242), money laundering (CC, Article 245), smuggling (CC, Article 250), accepting of a bribe (CC, Article 261), giving of a bribe (CC, Article 262), acceptance of gifts to secure unlawful intervention (CC, Article 263), giving of gifts to secure unlawful intervention (CC, Article 264), criminal association (CC, Article 294), unauthorised production of and trade in arms or explosives (CC, Article 307), and causing of danger with nuclear substances (third paragraph of CC, Article 316).

Constitutional Court of the Republic of Slovenia, 8 May 2003, U-I-272/98. With the exception of gathering of communication traffic data (CCP, Art 149b/1) and measures under CCP, Art 156. 65 Constitutional Court of the Republic of Slovenia, 27 November 1995, U-I-25/95. 64

690 Slovenia Thirdly, covert measures must be of limited duration. Measures infringing upon communication privacy may last up to six months (CCP, Article 150) and in case of surveillance in private premises (CCP, Article 151) up to three months. In all cases, a mechanism allowing for judicial review of their duration is in place. Any measures must cease at once reasons for its application no longer exist. And finally,the proportionality principle requires that covert measures be only used as a last resort (ultima ratio), ie when other measures (would) prove ineffective or would result in jeopardising the life or health of an individual. As an example, the most intrusive measure of surveillance on private premises may only be used if it impossible to reasonably conclude that it will be possible, in a precisely defined place, to obtain evidence which more lenient measures, including the measures from CCP, Articles 149a, 149b and 150, would not be able to obtain or the gathering of which could endanger the lives of people (CCP, Article 151). (iii) Judicial Review In all cases, covert measures are subject to ex post judicial review. Courts must ex officio review their application when deciding on the admissibility of evidence. However, caselaw has strongly argued in favour of ex ante judicial review as well. Recent rulings by the Constitutional Court show that ex ante judicial review is a necessary prerequisite for any infringement upon the right to communication privacy,66 even though Article 37/2 of the Constitution does not appear so strict.67 In case of covert measures infringing upon the general right to act freely,68 the Court was not so strict, thus allowing for ex ante review by the state prosecutor, combined with ex post judicial review. Typically, in cases of measures infringing the right of communication privacy (CCP, Article 152), the investigating judge will decide on their application upon the motion of the state prosecutor in an ex parte procedure. The motion and the order must be in writing. The judge must make a decision in 48 hours. In emergency cases, the state prosecutor is not authorised to order use of covert measures himself. The CCP allows for the prosecutor to orally request the judge to order use of a covert measure and the judge to respond orally as well. A written order must be issued no later than 12 hours after the measure has been orally approved.

G. MEASURES OF RESTRAINT

Measures of restraint are similar to investigative measures in as much as they represent an intrusion upon individual’s legally-protected interests prior to a conviction.69 However,

66

Constitutional Court of the Republic of Slovenia, 2 October 2008, Up-106/05. Art 37/2 of the Constitution: ‘Only a law may prescribe that on the basis of a court order the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy be suspended for a set time where such is necessary for the institution or course of criminal proceedings or for reasons of national security’ (emphasis added). 68 Contained in Art 35 of the Constitution: ‘The inviolability of the physical and mental integrity of every person, his privacy and personality rights shall be guaranteed’, making no explicit demands on ex ante judicial review. 69 Fišer (n 21) 89ff. 67

Measures of Restraint 691 their purpose is not directly related to facilitating the gathering of evidence. Instead, they are intended to reduce the threat an alleged perpetrator poses (i) to the security of persons and property and/or (ii) to undisturbed course of criminal proceedings. Measures of restraint may, in abstract, intrude upon a perpetrator’s personal freedom or upon his property. An example of the former is custodial detention, while an example of the latter is the measure of temporary freezing of assets.

1. Custodial Detention Custodial detention in a criminal procedure may only be ordered (i) by a judge upon a motion of the state prosecutor, (ii) given reasonable suspicion a person has committed an offence, (iii) when necessary in order to secure (iv) the safety of persons or property or the course of criminal proceedings.70 The latter conditions have been further elaborated in the CCP as reasons for detention. Under the CCP, detention may be ordered only if the alleged perpetrator (CCP, Article 201): — —

—

is either in hiding, if his identity cannot be established or if other circumstances exist which point to the danger of his attempting to flee; or if there are reasonable grounds for concern that he will destroy the traces of crime or if specific circumstances indicate that he will obstruct the progress of the criminal procedure by influencing witnesses, accomplices or concealers; or if the seriousness of the offence, or the manner or circumstances in which the criminal offence was committed and his personal characteristics, history, the environment and conditions in which he lives or some other personal circumstances indicate a risk that he will repeat the criminal offence, complete an attempted criminal offence or commit a criminal offence which he has threatened.

(a) Procedure: Arrest and Police Detention Custodial detention may take place at various stages of a procedure. Typically, it is ordered in the preliminary procedure, preceded by an arrest of the suspect by the police. In a preliminary procedure, the police have the power to arrest and briefly detain a suspect without a court order. The police may proceed in two ways: either arrest and immediately bring the suspect before an investigative judge (CCP, Article 157/1), or arrest and detain a suspect for a maximum of 48 hours (CCP, Article 157/2). The police will arrest the suspect and immediately bring the suspect before the investigative judge (CCP, Article 157/1) for interrogation and a hearing on further detention, when they have already established that a suspect may be reasonable suspected of an offence and a reason for detention exists. They must also present the judge with the criminal report. The judge will question the suspect and decide on further detention, provided the state prosecutor files a motion for detention. Most often, however, the police will arrest and detain the suspect (CCP, Article 157/2). They may do so when grounded reasons for suspicion exist (ie a lesser level of suspicion 70

Art 20 of the Constitution; Constitutional Court of the Republic of Slovenia, 11 April 1996, U-I-18/93.

692 Slovenia compared to arrest under CCP, Article 157/1). The police may detain the suspect, if detention is necessary for identification, the checking of an alibi, the collecting of information and items of evidence for the criminal offence in question, and if any of the above-mentioned reasons for detention exist (CCP, Article 201), with the exception of ‘obstructing the progress of the criminal procedure by influencing witnesses, accomplices or concealers’. As the police may not interrogate witnesses (CCP, Article 148/3), and in this manner ‘secure the evidence’, no police detention may be ordered for such a purpose. As set out above, informal questioning of persons by the police does not amount to ‘interrogation’ of a witness. If detention exceeds a period of six hours, a written decision must be issued on the grounds for detention. Police detention may last up to 48 hours. After 48 hours (or sooner, if reasons to detain cease to exist) the police must either release the suspect, or bring the suspect before the investigating judge to decide on custodial detention. After arrest, the police may proceed with informal questioning or formal interrogation of the suspect. The arrested suspect must be given adequate notice of his rights at the time of the arrest and prior to the commencement of questioning or interrogation. Under CCP, Article 4, any arrested suspect must be immediately informed in his mother tongue or in a language he understands, of the reasons for his arrest, instructed that he is not bound to make any statements, instructed that he is entitled to the legal assistance of a defence attorney of his own choice and that the competent body is bound to inform, upon his request, his immediate family of his apprehension. The suspect has the right to the services of a defence lawyer from the moment of apprehension onwards. Defence by a lawyer, however, is not mandatory at this stage. Under CCP, Article 148/4, the suspect must also be informed/instructed in more detail of the criminal offence he is suspected of and the grounds for suspicion, that he is not obliged to give any statement or answer questions and that, if he intends to plead his case, he is not obliged to incriminate himself or his close relatives or to confess guilt, that he is entitled to have a counsel of his choosing present at his interrogation, and that whatever he declares may be used against him in the trial. (b) Procedure Before Investigating Judge After Arrest/Police Detention (i) Overview After the police bring the suspect before the investigating judge, he is again informed of his rights. Prior to further interrogation, a suspect must obtain a defence lawyer, or one is appointed by the court. Defence by a lawyer is mandatory at this stage and for the entire period of custodial detention. If it is necessary to appoint a defence lawyer, or when it is impossible to proceed immediately with interrogation, the investigative judge may order further detention of up to 48 hours. The suspect must be interrogated within 48 hours after being brought before the investigating judge. A defence lawyer and state prosecutor must be present. After interrogation, the state prosecutor may file a motion for custodial detention, which is followed by a brief hearing of the parties’submissions and the judge’s decision. A decision granting a prosecutor’s motion must be in writing, with reasoning containing (CCP, Article 202/2) the name and surname of the apprehended person; the criminal offence of which he is accused, the legal grounds for detention; instructions on the right to appeal; explanation of all decisive facts which dictated detention, wherein the investigating

Measures of Restraint 693 judge must state the specific grounds for a reasonable suspicion that the person committed a criminal offence, explain the decisive facts regarding grounds for detention, and indicate why the ordering of detention in the specific case is unavoidably necessary for the safety of people or for the progress of the procedure. Within 48 hours, the state prosecutor must file for an opening of judicial investigation or directly file an indictment, or the suspect is released. (ii) Judicial Review The system of review is fairly complicated. In all cases, appeal does not suspend the execution of the order. If the investigating judge disagrees with the motion of the state prosecutor, he refers the motion to a panel of three judges. They may, in principle, either order further detention or reject the motion. Against the panel’s decision to order detention, the suspect may file an appeal (with the appellate court, CCP, Article 202/5), within 24 hours after being served with the order. If rejected, the suspect may file a request for protection of legality with the Supreme Court of the Republic of Slovenia (CCP, Article 420). If the investigating judge authorises detention, the suspect may within 24 hours after being served with the order, file an appeal with the panel of three judges at the district court. Against their decision, the suspect may file with the Supreme Court of the Republic of Slovenia, a request for protection of legality (CCP, Article 420). Finally, it is possible to file a constitutional complaint with the Constitutional Court of the Republic of Slovenia. (iii) Time Limits Detention must last the shortest possible time and all bodies participating in criminal proceedings and bodies which provide legal assistance to them shall be bound to proceed with special speed if the accused has been detained (CCP, Article 200). In pre-trial procedure, custodial detention may last a maximum of six months for the most serious of offences (CCP, Article 205). Within this period, an indictment must be filed or the accused is released. A system of checks is in place: on the basis of the decision of the investigative judge, detention may last up to one month. Upon the motion of the state prosecutor, it may be extended by a panel of three judges up to an additional two months. In case of offences carrying a sentence of over five years of imprisonment, detention may furthermore be extended for a period of up to three months, by the Supreme Court of Slovenia. At any stage in the proceedings, detention must be cancelled as soon as the reasons for it being ordered cease to exist. (iv) Special Forms An attorney may be held in custodial detention only upon the order of three judges of the higher court (Attorney’s Act, Article 7), applicable only to offences in connection with his activities as an attorney. The Slovenian Bar must be notified of the detention by the court. Similar rules apply for detention of a notary public (Notary Act, Article 27). Members of the National Assembly cannot be detained without the consent of the National Assembly, unless caught in flagrante for an offence carrying a sentence of over

694 Slovenia five years in prison (Article 83 of the Constitution). Similar rule applies for members of the National Council (Article 100 of the Constitution ) and for the judges of the Constitutional Court (Article 167 of the Constitution). In the event of offences related to their function, judges of regular courts may, only be detained with theconsent of the National Assembly (Article 134 of the Constitution).

2. Temporary Freezing of Assets (a) General Currently, Slovenian law allows for a temporary freezing of assets that constitute proceeds of crime (CCP, Article 502f). The CCP does not allow for freezing of otherwise illegally obtained assets. Temporary freezing of assets may be applied, when there is a danger that the suspect or the accused could, on his own or through other persons, use these proceeds for further criminal activities or could conceal, alienate, destroy or otherwise make use of these proceeds and thus preclude or render the confiscation of proceeds difficult (CCP, Article 502/1).The freezing of assets must be ordered by the court, upon the motion of the state prosecutor. The freezing may take place in preliminary or later phases of a criminal procedure, provided that at least reasonable grounds for suspicion exist that a criminal offence has been committed through which or because of which proceeds were gained or that such proceeds were obtained for another person or transferred to that person. Freezing may be ordered against the alleged perpetrator or against the recipient of the proceeds or other persons to whom proceeds were transferred, provided that these proceeds may be seized in accordance with the CCP. (b) Procedure The procedure of securing temporary freezing must fulfil basicthe requirement of a fair trial, ie the person affected must be provided with an opportunity to respond to the claims of the state prosecutor. However, this requirement should not jeopardise the effectiveness of the measure.71 The rights of the affected person are protected by allowing that person to voice his/her opinion before the order on temporary freezing becomes final, yet only after the order is put in place. For this reason, the procedure follows three stages (CCP, Article 502a). First, (typically) the investigative judge will consider the motion of the state prosecutor. If convinced the requirements are fulfilled, the judge may order the temporary freezing of assets. As soon as the measure is executed, the person affected is given an opportunity to oppose the measure by filing a formal objection. The two parties may then submit their arguments to the court either in writing or at a hearing. The judge then reconsiders the order, taking into consideration both parties’ arguments. If satisfied, the order is left in place and the person affected may appeal against the order. If, however, the judge finds no basis for the order, the order in place is annulled.

71

Constitutional Court of the Republic of Slovenia, 20 November 2003, U-I-296/02.

Evidence 695 (c) Time Limits In determining the period of temporary freezing, the court must consider the phase of the criminal proceedings, the type, nature and seriousness of the criminal offence, the complexity of the issue as well as the volume and importance of the property which is the subject of temporary securing (CCP, Article 502b/3,4). The CCP does, however, impose upper limits upon the duration of temporary freezing, both regarding phases of procedure and regarding the measure as a whole. Before the opening of judicial investigation the total duration of the temporary securing may not be longer than one year. During the investigation the total duration of the temporary securing may not be longer than two years. After the indictment has been filed and until the judgment of the court of first instance is passed, the total duration of the temporary securing may not be longer than three years. Until the execution of the final court decision on the seizure of the proceeds, the total duration of the temporary securing may not be longer than 10 years.

H. EVIDENCE

The CCP does not provide an exhaustive list of evidence admissible, nor should we expect it to. Given the underlying principle of truth-finding, any kind or piece of evidence is, in principle, admissible. In the end, it is for the court to decide freely, what evidence is to be used and how it is to be evaluated.72 In theory, however, the following kind of evidence has been recognised in the CCP: — — — — —

the alleged perpetrator; witnesses; experts; written reports; and inspection.

1. Unlawfully Obtained Evidence The courts, however, are not precluded from using other types of evidence, should it be necessary. There are, however, some limitations that mostly reflect the need to secure protection of human rights and freedoms during the collection and use of evidence. The most important restriction is the prohibition on using unlawfully obtained evidence and its exclusion from the case file (in short, exclusion of evidence). This prohibition typically reflects unlawful conduct during the investigation phase, when relevant pieces of evidence are obtained as a result of investigative acts. Exclusion of evidence is thus a sanction of unlawful conduct. The Constitutional Court has recognised the exclusion of evidence as an element that is subject to the right to obtain redress for the violation of such rights and freedoms.73

72 73

Constitutional Court of the Republic of Slovenia, 8 June 1995, Up-34/93. Constitutional Court of the Republic of Slovenia, 4 November 1996, Up-6/92.

696 Slovenia In order for unlawful conduct to result in the exclusion of evidence, the transgression must be of adequate severity. Under CCP, Article 18/2, the court may not base its decision on evidence obtained in violation of: — —

human rights and basic freedoms provided by the Constitution; or the provisions of a criminal procedure under which the CCP may not serve as the basis for a court decision.

In addition, the court may not base its decision on any evidence obtained on the basis of such inadmissible evidence. Under Slovenian law, the ‘fruit of the poisonous tree’ principle applies.74 Exclusion of evidence, however, is not limited to mere prohibition of using such inadmissible evidence. There are, in fact, three ‘levels of exclusion’ under Slovenian law. First, there is already mentioned the prohibition on the court not to base its decision on inadmissible evidence. Second, inadmissible evidence must be excluded from the file (physically), as soon as the court establishes that such is the character of the evidence (CCP, Article 83). And third, the judge, who has acquainted him/herself with inadmissible evidence, must him/herself be excluded: if in the course of determining any question within the proceeding he became acquainted with evidence which under the CCP must be excluded from the files, he may not in the same matter decide on the charge or appeal or extraordinary legal remedy against the decision that determined the charge, unless the content of the evidence is of such nature that it obviously could not influence his decision.75 In short, the exclusion of evidence under Slovenian law aims to remove any traces of unlawfully obtained evidence from the fact-finding process, including the judge and any knowledge he/she may possess of it. Courts must assess the admissibility of evidence both ex officio and upon the motion of the parties at each stage of the procedure. The investigating judge does so typically upon receipt of the prosecutor’s request to open a judicial investigation (with a criminal report and other reports attached) (CCP, Article 83/1). He is under a duty to immediately exclude any evidence that he considers has been unlawfully obtained, thus hopefully preventing judges at the main hearing having to deal with unlawfully obtained evidence. The severity of the exclusionary rule under the Slovenian law is further demonstrated by a lack of proportionality principle: evidence will be excluded as a direct consequence of the established breach of either constitutionally protected rights and freedoms or relevant rules of the CCP.76 Although courts have attempted to introduce a balancing act when ruling on issues of exclusion, its constitutional character demands that exclusion of evidence (as a right of the accused) be outweighed by equally constitutionally protected interests. Under Slovenian law, there is currently no constitutionally-protected right of the injured party to secure conviction or even seek criminal

74 K Šugman, ‘Ekskluzija dokazov in doktrina sadežev zastrupljenega drevesa v sodni praksi ameriškegaVrhovnega sodišcˇa in po 18. cˇlenu Zakona o kazenskem postopku RepublikeSlovenije’ (1999) Zbornik znanstvenih razprav 378–96; 75 Constitutional Court of the Republic of Slovenia, 21st March 2002, U-I-92/96; CCP, Art 39/1/4a. 76 P Gorkic ˇ , ‘Nacˇelo sorazmernosti in izlocˇanje nezakonitih dokazov: v slovenskem pravu?!’ (2009) 42 Pravna praksa 6–8.

Evidence 697 prosecution (with the noted exceptions of right to life and prohibition of torture etc), nor is there a duty on the state to introduce a balancing test in order to secure effective criminal prosecution.

2. Exclusion of Informally Obtained Statements In addition to exclusion of unlawfully obtained evidence, the CCP requires that certain statements, obtained informally by the police, be excluded as well. These statements are: —

—

— —

statements of suspects, obtained informally, without prior notification of their rights and without prior notification of the nature and grounds for suspicion, regardless of whether a duty to notify existed at the time of questioning (CCP, Article 83/1); statements of citizens, obtained informally by the police, that in later proceedings enjoy the status of privileged witnesses and—when informed of their status—do not waive their privilege to refuse testimony (CCP, Article 83/2); statements of persons that may not be interrogated as witnesses at the main hearing (CCP, Article 235); and statements of persons that may not be appointed experts (CCP, Article 251).

3. Admissibility of Written Reports as Evidence (a) General Written reports are, as a rule, admissible as evidence. Official reports, such as records of inspection outside the main hearing, records of a house search or personal search, records of the identification of persons, objects and the scene of the crime, records of confiscation and of documents, books, files and other writings can be read at the main hearing to establish their contents (CCP, Article 339). There are, however, several restrictions, presented further below. (b) Reports on Defendant’s Prior Testimony It is admissible to read reports on formal interrogation of the defendant (his prior testimony), obtained during the investigation. These reports include: — —

report of police interrogation under CCP, Article 148a, during preliminary procedure; and report of judicial interrogation under CCP, Article 227ff.

At the main hearing, these reports may be read, in evidence, in whole or in part (CCP, Article 325): — —

if the defendant declares at the main hearing that he does not intend to plead his case, or if he refuses to answer particular questions.

698 Slovenia If the defendant in the interrogation at the main hearing changes his previous testimony, the prosecutor, counsel or the presiding judge may call his attention to this inconsistency and ask him to explain why he has changed his testimony. The presiding judge may, if necessary, read his previous testimony or a part thereof. (c) Reports on Prior Testimony of Witnesses or Co-defendants or on Experts’ Prior Expertise and Opinion Reports of prior testimony by a witness are admissible as evidence under certain conditions. The most important limitation on their admissibility is the right to examine or have examined witnesses against him (Article 6/3(d) ECHR). As a rule, a written report containing a statement of an incriminating nature may be used in evidence, as long as the defendant has had an opportunity to examine the author of the statement, either during the judicial investigation or during the main hearing.77 Although the exclusionary rule has not been explicitly formulated, the application of this procedural rights de facto results in a prohibition against basing a judgment on the written report containing the statement. If so, the judgment will typically be annulled and a retrial ordered. The right applies to examining witnesses, co-defendants and experts. Provided that this condition is satisfied, the reading-out of written reports of witnesses or convicted co-defendants’ testimony, or of experts’ expertise and opinion, is allowed, if the person in question was duly summoned to appear and (CCP, Article 340/1): — — — — — —

the person interrogated has died; they have fallen prey to a mental disease; they are not to be found; they are unable to appear in court due to old age, illness or some other justified reason; their appearance involves great difficulties, if they live abroad and fail to appear at the main hearing, despite being properly summoned to appear; or witnesses or experts refuse to testify at the main hearing without the statutory justification.

If parties consent, the panel may decide to read out records of prior testimony or expertise, even without summoning the witness or the expert to appear at the main hearing (CCP, Article 340/2). Additionally, the written report of prior judicial interrogation of a witness or of an expert may be read out at the main hearing, if a witness or an expert cannot recall the facts he had adduced in the previous examination or if he changes his statement, if deemed necessary by the presiding judge (CCP, Article 335). (d) Official Notes on Statements, Provided to the Police during Informal Questioning by Suspect or Potential Witness Statements written by a police officer in the preliminary procedure may not be used in evidence when deciding the charges at the main hearing. The rule is not explicitly set

77 See eg Constitutional Court of the Republic of Slovenia, 19 January 2006, Up-518/03 and Up-719/03, 9 March 2006.

Evidence 699 out in the CCP. It is contained in a rule prohibiting the police from examining suspects or other citizens as defendants, witnesses or experts (CCP, Article 148/3). It is once again important to recognise the terminological differences between a suspect and an accused/ defendant, and between a citizen and a witness. To each of the named procedural roles, a particular regime of obtaining statements applies and a particular form of documenting the statement is used. (e) Evidence Obtained Abroad Evidence obtained abroad should, as a rule, be treated under the same principles as evidence obtained in Slovenia. Therefore, evidence from abroad will generally be admissible. Similarly, the same rules regarding exclusion of evidence should apply. However, the scope of the exclusionary rule regarding evidence obtained abroad is not yet settled under Slovenian law. The Supreme Court has taken the position that evidence obtained abroad need not satisfy the provisions of the CCP; however, evidence must not be taken in violation of constitutionally guaranteed human rights and freedoms.78 Doctrine, however, took a somewhat more differentiated approach, distinguishing between evidence obtained abroad at the initiative of Slovenian bodies of criminal procedure, and evidence obtained abroad independently from Slovenian bodies of procedure, typically for the purposes of criminal procedure underway abroad.79 This approach allows further examination of the possibility of Slovenian bodies influencing the taking or collection of evidence abroad, depending on the applicability of the forum regit actum principle. If Slovenian bodies do have the means to secure compliance with Slovenian law, stricter rules on admissibility should apply, even to the extent of excluding evidence collected contrary to the provisions of the CCP. If, however, Slovenian bodies did not have the opportunity to secure compliance with Slovenian law, exclusionary rule should be somewhat more flexible. In such cases, evidence obtained abroad will be inadmissible if collected in violation of the Slovenian Constitution, which courts must apply when deciding on the admissibility of evidence in domestic procedure. However, care should be taken not to apply those constitutional provisions, that by their very nature address Slovenian state bodies exclusively and may not be extended beyond Slovenian jurisdiction. A typical example is a requirement of a court order for purposes of cover surveillance of communications (CCP, Article 37/2 of the Constitution), which is in itself a norm of competence, thus applicable to Slovenian state bodies. At the time of writing, the issue remains hotly debated and unresolved. (f) Evidence Obtained in Non-criminal Procedures Similar principles apply to admissibility of evidence, obtained in non-criminal (eg administrative) procedures. Such evidence is in principle admissible. However, the issue of applicability of the privilege against self-incrimination in the case of statements obtained from future defendants in non-criminal procedures remains unresolved.

78

Supreme Court of the Republic of Slovenia, 30 May 2008, Kp 16/2007. P Gorkicˇ, ‘Prepoznavanje in izlocˇanje ne zakonitih dokazov v kazenskem postopku: dokazi, pridobljeni v tujini’, in Zbornik 2. konference kazenskega prava in kriminologije (Ljubljana, GV Založba, 2009) 184–94. 79

700 Slovenia Caselaw at the moment is strongly in favour of admissibility of data provided to administrative agencies by the suspect, and later used in criminal procedure. The Supreme Court has rules in favour of admissibility of such evidence in the following cases: — —

records drafted by inspection services, when performing an inspection of a company;80 and data handed to tax authorities under the threat of a fine; such data is admissible, given that the exclusionary rule under CCP, Article 83 applies only to out-of-court statements given to the police, and given that the data were not handed over directly by the defendant (instead, data were collected in the presence of the defendant’s accountant.81

Recent caselaw of the Constitutional Court has further distinguished between (i) administrative procedures that may amount to a de facto criminal investigation, and (ii) administrative procedures that do not. In the first case, rights of defence must apply to a full extent in order to avoid fraudulent conduct of competent authorities.82 In the second case, it is reasonable to argue that rights of defence do not extend to administrative procedures, making the exclusionary rule in fact inapplicable. In theory, this reasoning in support of the division between administrative and criminal procedure has been criticised. Since criminal investigations rely increasingly on administratively gathered data, the separation of the two should be challenged, and adequate guarantees introduced into administrative procedure to protect the right to silence.83 Others argue in favour of analogous application of existing rules on the admissibility of suspects’ statements to the police.84

I. CONCLUDING REMARKS: RIGHTS OF DEFENCE AND THE FATE OF THE MAIN HEARING

Development of the investigation measures in Slovenian criminal procedure shows two major trends. First, it appears that the rights of defence are taken more and more seriously. An indicator of such a development is the introduction of a formal instruction about the rights of defence to all suspects, not merely those arrested (CCP, Article 148/IV). The legislator has finally recognised the suspect not merely as an object of investigation, but as a participant in the procedure who is able to act independently in specific procedural situations, such as interrogation or informal questioning. Similarly, the Constitutional Court has recognised the right of the suspect to be present during investigative measures,85 thus facilitating the necessary minimum of adversariness after the investigation (in preliminary proceedings) has focused on a specific individual and on a specific offence. A final step that is required is an explicit statutory recognition of the right to a translator in a preliminary

80

Supreme Court of the Republic of Slovenia, 21 October 2004, I Ips 46/2004, and I Ips 86/99, 23 May 2002. Supreme Court of the Republic of Slovenia, 21 April 2005, I Ips 72/2004. Constitutional Court of the Republic of Slovenia, 6 July 2011, Up-1293/08. 83 L Selinšek, ‘Pravna dopustnost dokazov, zbranih v nekazenskih postopkih’ (2010) 5–6 Pravnik 301–26. 84 P Gorkicˇ, ‘Dokazi, pridobljeni pri carinskem nadzoru ob prehodu državne meje, v kazenskem postopku’ (2011) 30–31 Pravna praksa 9–11. 85 Constitutional Court of the Republic of Slovenia, 2 July 2009, Up-3367/07. 81 82

Concluding Remarks: Rights of Defence and the Fate of the Main Hearing

701

procedure. Currently, although strong arguments in favour of such a right in a preliminary procedure exist, the CCP holds no such provision. These developments should be welcomed. They do, however, have a downside; the second, opposite trend. By increasing the rights of defence, the powers of the investigation bodies increase as well. A parallel to introducing explicitly the right of silence to all (not merely arrested) suspects is the introduction of formal police interrogation (CCP, Article 148a), resulting in a record that may be freely used at the main hearing as evidence. Similarly, by increasing judicial control over police and the state prosecutor, the fruits of their investigative measures, taken at the earlier stages of procedure, may be used in evidence. A specific set of circumstance under Slovenian law has forced the courts to take into consideration expert reports drafted by police experts, instead of expertise drafted by court-appointed experts. Slovenian criminal procedure, although in dire need of an overhaul, does follow the trends noticeable in other European states, ie the increase of investigative powers of the police and the state prosecutor, increasingly at the expense of the court. The results are visible in recent reforms in, eg Austrian, Swiss, Croatian and Serbian criminal procedures, that have abandoned the concept of judicial investigation altogether. Inasmuch as such a development appears reasonable and mostly welcomed, there is considerable collateral damage. The strengthening of the investigation phase necessarily results in a weakening of the main hearing. From the very outset, the main hearing should provide the trial judge with an opportunity to fully assess the evidence gathered in the investigation phase, with full respect for the principle of immediacy, particularly regarding oral evidence offered by the defendant, witnesses and experts. The use of written reports must be restricted in order to preserve the principle of immediacy and the oral, adversarial nature of the main hearing. Tipping the balance in favour of the investigation phase, with little or no restriction on the use of written reports drafted during the investigation, must necessarily diminish the scope of the principle of immediacy at the main hearing and the role of the trial judge. The fate of the main hearing appears even less promising when we take into consideration an increase in consensual methods of resolving disputes in criminal procedure. The decisions taken within such mechanisms will typically rest entirely on the material collected during the investigation phase of criminal procedure. Clearly, reforms of criminal procedure focusing on the investigation phase of the criminal procedure (or, indeed, drafting of a transnational criminal investigation for the purpose of the EPPO), may very well fail to consider its impact on criminal procedure as a whole.

19 Spain LORENA BACHMAIER

A. GENERAL ASPECTS OF THE PROCEDURE

1. Sources of Criminal Procedural Law

T

HE SPANISH CONSTITUTION of 1978 (SC) contains numerous provisions concerning the criminal justice and the criminal procedure.1 Specifically, the right to access to justice and the right to a fair process are recognised in Article 24 of the SC.2 The right to be heard and the principle of equality are the essential guarantees of every judicial process. In addition, the constitutional principles that permeate criminal procedure are: the presumption of innocence, the right to a defence lawyer, the right against selfincrimination, the right to silence, the right to be informed of the charges, and the right to be judged by an independent and impartial judge. As to the legal technical principles, we can mention the principle of legality. The principle of publicity applies strictly to the oral trial, but there are some exceptions based on the protection of other fundamental rights. The principle of orally developed procedural acts is conceived as a guarantee of the publicity of the judicial proceedings. With regard to evidence, the basic principle is the free evaluation of evidence and the impossibility to motivate judgments on evidence illegally obtained. Only statutory law is a direct and principal source of Spanish criminal procedural law,3 due to the principle of legality expressly recognised in Article 1 of the Code of Criminal Procedure (CCP): no crime will be punished unless according to the statutory provisions

1 The first chapter of the Constitution, which deals with the fundamental rights and public liberties mentions: the right to freedom of movement (Art 17); the right to privacy (Art 18); the right to secrecy of communications (Art 18); the inviolability of the home (Art 18); the legality principle (Art 25); the right to a fair process (Art 24), a provision which includes the right to legal assistance, the right to a public trial, the right to an impartial judge, the presumption of innocence, the right to be informed of the charges, the right to a legal judge, the right to a public trial, the right of non self-incrimination, and the right against undue delays. Furthermore the constitutional provisions dealing with the judicial power state that: 1) only judges may exercise the judicial power and thus impose penalties according to the law (Art 117.3); 2) it is compulsory to execute the judicial sentences (Art 118.1); proceedings shall be predominantly oral (Art 120.2); the judgments shall always be grounded (Art 120.3); the right to legal aid (Art 119.1); and the obligation of every citizen to cooperate with the administration of justice (Art 118.1). 2 On Art 24 SC see I Díez-Picazo Giménez, ‘Artículo 24: Garantías Procesales’, Comentarios a la Constitución Española de 1978, vol 3 (Madrid, Edersa, 1996) 24–123. 3 On the sources of criminal law and criminal procedural law, see L Bachmaier, A Del Moral, Criminal Law in Spain (Kluwer Law International, 2010) 49ff.

General Aspects of the Procedure 703 of this code and as a result of the judgment rendered by the competent judge. According to the Spanish Constitution, those rules affecting fundamental rights need to be passed through a special statute called the Organic Law, which requires an absolute majority of votes to be enacted.4 In the field of criminal procedure some regulations are to be found on minor issues, such as, for instance, on the deposit of pieces of evidence, the constitution of bonds or securities when the suspect is released on bail, or the development of the statutory provisions for the recognition of legal aid. But the vast majority of rules are still to be found in the Code of Criminal Procedure, which is a statutory rule.5 Custom is not a source of procedural law. As to the jurisprudence, there is no system of stare decisis in Spain: as a general rule, the precedent is not binding and lower courts are not bound by decisions rendered by the higher courts. The sources of law within the Spanish legal system only recognise for case law a complementary or interpretative role, unable to establish rules of procedure.6 Albeit with this secondary role, in practice the doctrine of the Supreme Court is highly important and its interpretative decisions are widely followed by inferior courts. In areas where the legislator has been inactive or unable to give a response to procedural problems, the doctrine of the Supreme Court has covered this legal gap. An important exception is the case law of the Constitutional Court relating to fundamental rights: Article 5 of the Judiciary Act (Ley Orgánica del Poder Judicial—LOPJ) expressly accords binding effect to the Constitutional Court’s decisions on constitutional rights. Thus, the application of every statutory provision has to be in conformity with the Constitution and with the case law of the Constitutional Court. The case law of the Constitutional Court has played and still plays an essential role in defining the scope of the procedural safeguards within the criminal proceedings, as the constitutional rights of the accused and the main procedural safeguards of the criminal procedure are enshrined in the Constitution.7

4 According to Art 81: ‘1. Organic laws are those relating to the development of fundamental rights and public liberties, those which establish Statutes of Autonomy and the general electoral system, and other laws provided in the Constitution. 2. The passing, amendment or repeal of the organic laws shall require an absolute majority of the members of Congress in a final vote on the bill as a whole.’ This rule raised the question whether the criminal procedural rules required to be regulated by organic law. However, the Constitutional Court has held in STC 95/1988 of 26 May 1988 that not all procedural rules, even if they deal with fundamental rights, need to be regulated through organic rules. See E García De Enterría, TR Fernández, Derecho Administrativo I, (Cizur Menor, Aranzadi, 2006) 115ff. On the discussion of the scope of the organic laws, see JF Chofre Sirvent, Significado y función de las leyes orgánicas (Madrid, Tecnos, 1995) 102–69. 5 The main statutes which regulate the criminal justice system are: Code of Criminal Procedure of 1882 (Ley de Enjuiciamiento Criminal, CCP); Judiciary Act 6/1985 (Ley Orgánica del Poder Judicial, LOPJ); Jury Act 5/1995 of 22 March 1995 (Ley Orgánica del Tribunal del Jurado); Organic Law 2/1986 of 13 March 1986 on the State Security Forces (Ley Orgánica de Fuerzas y Cuerpos de Seguridad del Estado); Organic Law 50/1981 of 30 December 1981 on the Public Prosecution Service Status and Organisation (Estatuto Orgánico del Minsiterio Fiscal). 6 Arts 1 and 6 of the Civil Code, where the sources of law of the Spanish legal system are defined. 7 On the doctrine of the Constitutional Court regarding the criminal procedure, see M Ortells Ramos, I Tapia Fernández, El proceso penal en la doctrina del tribunal Constitucional (1981–2004) (Cizur Menor, Aranzadi, 2005).

704 Spain According to Article 10 § 2 SC,8 Spanish rules have to be construed in the light of the international conventions and treaties signed and ratified by Spain. Article 96 SC states: Properly concluded international treaties shall form part of the domestic legal order once they have been published in Spain.9

Within the Council of Europe Spain has ratified many treaties relevant to criminal law and procedure. The most relevant is, of course, the ECHR and its amending protocols, which became effective in Spain on 4 October 1979.10 Several legal changes have taken place in Spain as a consequence of the findings made by the ECtHR in its judgments—especially related to procedural safeguards and the judicial organisation—and domestic courts follow its doctrine when making their decisions. The case law of the ECtHR is effectively implemented by the domestic courts and is strictly followed by the Constitutional Court. As a consequence of this effective compliance with the standards of human rights defined by the ECtHR’s judgments, the number of decisions of the Court finding a violation of the ECHR against Spain is comparatively very low.

2. Phases of the Criminal Procedure (a) Investigation and Prosecution For clarification purposes—and particularly for teaching purposes—it is usual to distinguish five basic stages within the criminal proceedings: preliminary inquiry, intermediate stage, oral trial, appeal of the sentence, and execution of the sentence.11 Within a study of the investigative measures it might be important to differentiate between the investigation and the prosecution of a crime. However, there is no formal or legal distinction between investigation and prosecution in the Spanish criminal justice system. The Spanish CCP only regulates an investigation aimed to find out the criminal facts, thus linked to prosecution. Under the CCP the investigative phase (instrucción or diligencias preliminares) is aimed at determining whether the notitita criminis must lead to a trial against a certain

8 Art 10.2 SC: ‘The principles relating to the fundamental rights and liberties recognised by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain.’ 9 As a member of the United Nations, Spain has signed the International Covenant on Civil and Political Rights (New York 1966), which became effective in Spain on 13 April 1977. Other treaties ratified by Spain are the International Convention on the Elimination of all Forms of Racial Discrimination (New York, 1966), the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (New York, 1987), the Convention against Illicit Traffic of Narcotic Drugs and Psychotropic Substances (Vienna, 1988), and the International Convention for the Suppression of the Financing of Terrorism (New York, 1999). 10 Of importance for criminal justice are the European Convention on Extradition (Paris, 1957), the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 1959), ratified on 18 August 1982; the European Convention on the Suppression of Terrorism (Strasbourg, 1977); the Convention on the Transfer of Sentenced Persons (Strasbourg, 1983); the Convention on the Compensation of Victims of Violent Crimes (Strasbourg, 1983); the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg, 1990). Other important international conventions adopted within the Council of Europe as for instance the Criminal Law Convention on Corruption (1999), the Convention on Cybercrime (2001), the Convention on the Prevention of Terrorism (2005) or the Convention on Action against Trafficking in Human Beings, had not been ratified by Spain as of March 2008. 11 S Aragoneses Martínez, J A Tomé García et al, Derecho Procesal Penal (Madrid, CERA, 2007) 295.

General Aspects of the Procedure 705 person. Legally there is no criminal investigation outside the criminal procedure, and those acts fall within the category of police acts. The phase of investigation is usually identified with the instrucción. This pre-trial investigation consists of all the activities aimed to prepare the oral trial, to find out all the circumstances regarding to the offence committed and the identification of the persons responsible for it (CCP, Article 299).12 The CCP does not regulate a fully adversarial investigative stage and this is the reason why it does not mention any investigative activity carried out by the defence. In practice defence lawyers rely widely on the investigation carried out by the police and the investigating judge ( juez de instrucción). If they consider that some additional evidence should be collected or produced, they will request the investigating judge to carry it out. Formal judicial investigation (instrucción judicial) begins when the report to the police is handed to the judicial authority and the investigating judge renders a formal decision ordering the initiation of the proceedings to find out the facts described in the report. The investigating judge always has the final say as to the opening of a criminal proceeding to investigate an offence. This decision is not subject to discretionary powers, but the result of the application of the principle of legality: since the existence of the notitia criminis, the investigation of the possible offence will be directed by the investigating judge or by the public prosecutor. Since the reform of the CCP in 1988, the public prosecutor now has the power to carry out some preliminary investigation before the instrucción is formally opened by the investigating judge. The CCP does not regulate or take into account other previous police investigation that are beyond the scope of the criminal procedure and that are not directed to the investigation of a certain offence. The real practice, however, offers sometimes a different picture.13 When developing their functions of security or prevention of criminal activities, the police tend to perform more and more an investigation that can properly be called proactive policing, and they do not necessarily provide detailed information of each single act to the public prosecutor or to the judge. This investigation is deemed to take place within the police sphere and is not specifically regulated by the CCP: it is not strictly an investigation within the realm of process, it is not subject to judicial control and it does not serve as evidence in a trial. In any event, it is undeniable that these investigation activities are of great relevance for criminal repression and, therefore, for the effective functioning of the criminal justice system. In spite of this, the CCP does not specify the point at which the police are obliged to inform the investigating judge or the public prosecutor about an investigation that they are developing on their own initiative. In practice, the police provide the relevant information to the investigating judge when they have sufficient indications of a certain offence or when they need to take certain measures that require judicial authorisation, for instance a search of dwellings or interception of communications. It is not easy to define what is strictly considered prosecution within the Spanish criminal justice system. The concept of ‘prosecution’ may be translated into Spanish as

12 During the pre-trial stage the judicial police will verify the facts that apparently constitute a criminal offence, investigate who has committed them, and collect all the relevant evidence. Within this stage of the proceedings measures will also be taken to ensure the suspect will appear in court and also to seize property to secure the civil liability for damages. See T Armenta Deu, Lecciones de Derecho Procesal Penal, 4th edn (Madrid-Barcelona, Marcial Pons, 2009) 117. 13 See Bachmaier, Del Moral (n 3) 204–05.

706 Spain ‘enjuiciamiento’ (literally: to subject to trial), but also as ‘procesamiento’ (a person formally considered as party to the pre-trial proceedings, when more than a strong suspicion has been confirmed, and probable cause is present), thus it is a concept which has no exact equivalent in the Spanish legal system. We can identify the prosecution with the power to initiate a criminal investigation or with the power to press charges, but we can also define the prosecution as the power to subject a person to a criminal judgment. There is also a tendency to identify the prosecution with the functions that are entrusted to the public prosecutor within the criminal proceedings. However, in the Spanish criminal justice system, the position of the public prosecutor is primarily the protection of the rule of law and its functions are defined by the legality principle. It acts on behalf of society, representing its interests and watching that the legal system is respected. Within the criminal procedure, its tasks are manifold and do not fit a strictly party driven procedure. Therefore the meaning of prosecution cannot be defined by the functions of the prosecution service. In general it can be affirmed that prosecution exists, since a public prosecutor or an investigating judge is directing an investigation to find out the commitment of an offence, to collect evidence, to identify the possible person responsible for it, and if this is already identified, to prove his participation in the crime. The notion, as stated above, overlaps with the notion of investigation. A relevant feature of the Spanish criminal proceeding is that the public prosecutor does not have a monopoly on the right to prosecute. The victim and any Spanish citizen may file accusatory pleadings in a criminal procedure and trigger an investigation and prosecution of a criminal act, as will be explained later. (b) The Intermediate Stage and the Trial Once the pre-trial inquiry is ended, the intermediate stage deals with the decision to drop the case or to proceed to trial. To bring a case to judgment means that the relevant judicial authority has made an assessment of the facts and sufficient evidence has been collected to try a person as possibly responsible for a certain offence before the trial court. In other words, the case is ready to be tried. The decision whether the case should proceed to trial is taken upon request of the accusing party by the investigating judge (abbreviated proceedings) or by the trial court (ordinary serious offence proceedings). At the beginning of the investigation, in those cases where the public prosecutor is in charge of the initial preliminary investigation—and not the investigating judge—he can decide to close the case and not investigate any further (archivo de las actuaciones), if the facts described in the police report cannot be considered an offence (CCP, Article 773.2), or if there are not enough grounds to prosecute (Article 5 EOMF). This decision states that, according to the view of the public prosecutor, an investigation shall not be initiated. According to the data of the Annual Report of the public prosecutor’s Office for 2009, 65.7 per cent of the investigations done by the public prosecutor ended without further proceeding.14 This decision has to be notified to any victims of the case, who can then report the case directly to the investigating judge, so that they may ask the investigating judge to start the inquiry.

14

www.fiscal.es.

General Aspects of the Procedure 707 The causes for dropping the case at the investigating stage—and thus not proceeding to trial—are legally stipulated.15 The ending of the case will be provisional with the possibility of being reopened in the future (sobreseimiento provisional) in the following cases: 1) evidentially insufficient cases; 2) there is enough evidence as to the commission of an offence, but there is not enough evidence to bring charges against a person. At this point we have to remember that the public prosecutor is not the only one who can press charges in the criminal proceeding. Thus, a case can proceed to trial based on the accusatory pleadings filed by the victim or any citizen (popular accusation). If all the parties—the public prosecutor and the other accusers—ask for the ending of the case, the court is bound by the request of the parties and has to accept the disposal of the case. The application of the public prosecutor as to the ending of the case has to be communicated to the offender and to the victim, so that the latter may request the investigating judge to continue the proceedings (CCP, Article 773.2). The prosecutor is not completely free to bring to an end the case, as his decision can be reviewed by the investigating judge (or the trail court, in serious offences proceedings). The investigating judge, as master of the investigation—according to the statutory provisions—is empowered to proceed with the investigation even if the public prosecutor may decide to discontinue the inquiries. If the case proceeds to trial, at this stage, the accusing parties—first the public prosecutor and then the other possible accusing parties—have five days to draft the indictment, which in the ordinary trial is called escrito de calificación provisional. In the realm of the abbreviated proceedings (procedimiento abreviado), the public prosecutor formulates his indictment in the same terms in which he requests the opening of the oral trial. The accusing parties will also propose the evidence to be given at trial, specifying whether the court must subpoena the witnesses and experts, or whether these shall be notified by the parties (CCP, Articles 656–57 and 781). In any event, to open the oral trial it is necessary that someone different from the court presses charges. The public prosecutor will present the case in court by himself and the private accusers represented by their lawyer.16 Before the trial the defendant will be given the opportunity to plead guilty and accept the penalty requested by the accusing party in the indictment. The defendant can still do it in a later moment, through a joint pleading signed by the accusing party and the defendant at the beginning of the oral trial. Before the commencement of the trial (juicio oral), the court shall decide on the admissibility of the evidence the parties have proposed in their pleadings. Once the oral trial has commenced, if the defendant does not plead guilty, or simply does not respond to the question posed by the presiding judge, the trial will go on with the production of evidence (CCP, Articles 697–98). After the evidence is produced, the accusing parties have the chance to change the terms of the indictment and the court has the opportunity to question the correctness of the charges presented. After that, the parties shall present their concluding arguments and the defendant shall be given the last word. The trial can only conclude with a sentence that decides whether the accused person is criminally liable or not.

15

CCP, Art 637. As a rule the same member of the prosecution office who acted in the pre-trial stage will file the indictment with the full accusatory pleadings, and appear before the trial court to present the case. 16

708 Spain 3. Supect’s and Defendant’s Rights The Spanish Constitution recognises the fundamental procedural rights in its Article 24, which reads: 1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent.

The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding alleged criminal offences. The right to be presumed innocent is recognized in Article 24.2 of the Spanish Constitution. With regard to evidence, the presumption of innocence entails that the accusing party must prove the facts alleged in the indictment and the guilt of the defendant, who is not bound to prove his innocence.17 From the Constitutional Court’s case law regarding the presumption of innocence and from the rules of evidence, the following criteria apply: 1) there must be substantial evidence; 2) the evidence must have been obtained respecting all the procedural guarantees: ie the principles of immediacy, publicity, and concentration; 3) the evidence must be given at trial—save the exceptions permitted by law—observing the adversarial system; 4) it must be obtained without violation of fundamental rights; and 5) the court is bound to provide a due reasoning for its assessment of the evidence.18 The Spanish CCP does not regulate a fully adversarial procedure at the pre-trial stage. In practice, defence lawyers rely widely on the investigation done by the police and the investigating judge. If they consider that some additional evidence should be collected or produced, they will request the investigating judge to arrange this. CCP, Articles 311 and 776.3 provide for the parties—both prosecution and defence—the possibility to make evidentiary motions. The investigating judge is bound to grant the public prosecutor’s requests in this respect, but he/she will order the investigating acts requested by the other parties only when he/she considers that they are neither useless nor harmful. The defence can also request the reiteration of some investigory measures if he/she does not agree with the way they have been performed. On their own, they can look out for witnesses, call in experts and, especially in the realm of economic fraud, undertake an analysis of the documents on their own. But the role of the defence counsel in Spain is not that of an investigator, although if they want to they can look out for evidentiary materials on their own, as long as this does not entail infringement of fundamental rights.

17 18

STC 64/1986, 21 May. STC 34/1996, 11 March.

General Aspects of the Procedure 709 From the moment a person is suspected or accused, he shall be promptly informed of the charges and his defence rights: the right to legal assistance, to remain silent, to be assisted by an interpreter, to produce evidence. Moreover, CCP, Article 520.2 grants the detainee the right to inform a person (a relative or the person he desires) of the fact and place of the detention, while a foreigner is accorded the right to have the consular authorities informed of his detention, if he so wishes. Any person is entitled to be assisted by a lawyer of his choice at his own cost, if he is not granted the right to legal aid. The right to appoint a lawyer of his choice can only be restricted for a limited time during detention in cases of terrorism. At the moment where the suspect or defendant—detained or otherwise—is informed of his status as suspect or defendant he does not only have the constitutional right to appoint counsel of his own choice, but the legal assistance shall be mandatory and the CCP does not admit the waiver of this right, except in the case of petty offences and for traffic offences. Acts carried out in breach of the fundamental right to be assisted by a lawyer are void. Every suspect, whether detained or not, is entitled to be assisted by an interpreter—at no cost—if he does not understand the Spanish language or is auditorily disabled.19 Since its enactment in 1882, the CCP has foreseen the defendant’s access to the file and his right to obtain full disclosure of all relevant material collected during the pre-trial inquiry (CCP, Article 302). No rule is contained in the CCP with regard to non-disclosure of documents. For justified reasons and for a limited time (CCP, Article 302), the investigating judge can declare the pre-trial investigation secret, but this restriction has to end as soon as it is no longer justified to secure the investigation. Corporate criminal liability has only recently been introduced in Spain, through the reform of the CC passed on 22 June 2010, which entered into force at the end of 2010. Law 37/2011 of 10 October 2011 has approved several amendments to the CCP regarding the criminal procedure against legal persons, granting the protection of their fundamental rights, specifically the right to legal assistance, the right against self incrimination and the right to remain silent. There is a general provision stating that the rights granted to the physical person shall apply to the legal person as long as this is not incompatible with the nature of the legal person.

4. Rules on Evidence As to the rules on evidence, Article 11.1 of the LOPJ states that: Evidence obtained, directly or indirectly violating fundamental rights or liberties, shall have no effect. [Emphasis added.]

19 The Constitutional Court has declared that this right has to be interpreted ‘extensively’: the right to have an interpreter should be applied to all kinds of procedural acts, even to police investigative acts. In practice, however, it is considered to be indispensable for the questioning of the suspect or any witness, but not necessarily to other procedural acts, eg to assist the practice of an expertise. There is no legal provision regarding the translation of documents. As far as we know, the suspect or defendant is not granted the right to have all documents translated. However, the Constitutional Court in its judgment 105/2000 of 13 April 2000 declared that the judicial authority was not only authorised to order the translation of documents, but should provide for it if such translation is necessary to comply with the constitutional right to an effective defence.

710 Spain The Spanish Constitutional Court has held that the exclusion of derived illegal evidence is absolute only if the following circumstances are met: 1) cases in which interference with a fundamental right is of a certain intensity, and; 2) if there is a ‘causal nexus of illegality’.20 In order to assess the existence of a legally relevant connection, the following elements should be taken into account: 1) the significance of the constitutional infringement; 2) the results obtained by the unconstitutional evidence, ie the actual relevance of the information or materials obtained through the illegal act in the gathering of the subsequent evidentiary materials; 3) if there are other elements, apart from the unlawful evidence, due to which it is reasonable to think that the indirect evidence would have been discovered anyway; 4) if the fundamental right violated requires a special protective standard, because of its vulnerability; 5) the attitude of those who caused the infringement of the constitutional right, in particular, whether the infringement was intentional or was the consequence of a mere error in evaluating the deterrence effect of the exclusionary rule. The general rule is that the sentence can be founded only on the evidence given at trial with full respect to the principle of contradiction so that the parties can defend their respective allegations,21 as well as to the principles of publicity and immediacy. However this rule admits certain motivated exceptions.22 The statement before the police has no evidentiary value. Nevertheless it can be read out at trial in order to give the judge the opportunity to evaluate the contradiction between statements; but, if this were the only evidence against the accused, it would not constitute sufficient substantial evidence to ground a conviction sentence. Evidence obtained abroad through the mechanisms of judicial cooperation can be utilised as evidence before the Spanish courts, provided that the fundamental procedural rights according to the SC and the Constitutional Court’s case law have been safeguarded.

5. Bodies Carrying out Investigation and Prosecution (a) Police The investigative acts are performed by the judicial police who are skilled in scientific and forensic investigation as well as in investigative strategies and operations. The model designed by the SC distinguishes between the security police, who act under the government’s control and mainly perform functions of civic security, surveillance and prevention; and, on the other hand, the judicial police (policía judicial), who work under the

20

Eg SSTC 136/2000, 29 May, 174/2001, 26 July; 167/2002, 18 September. STS 4 May 1995. The Constitutional Court has confirmed that pre-trial investigative acts can be accepted as valid evidence if they are not available in trial, provided that the contradiction principle had been respected when the evidence was obtained, ie that all parties could intervene in due course, so that the evidence could be considered as ‘produced in advance’ (prueba preconstituida). Expert reports prepared by official agencies or bodies—for instance the Toxicology Institute—shall have full effect as evidence if they are not challenged by any of the parties, even when the experts do not ratify their reports at the oral trial. Police reports and other police investigative acts deserve a specific mention. According to CCP, Art 297, the police report cannot be considered a means of proof. To be considered as valid evidence it is necessary that it is produced in the oral trial and police officer who intervened in the facts reported appears in court to testify, so that the adversarial cross-examination is possible. 21 22

General Aspects of the Procedure 711 control of the judges or public prosecutors in the criminal investigation within the context of a criminal procedure.23 More precisely SC, Article 126 provides24: Judicial Police depend from the Judges, the Courts and the Public Prosecution in their functions of ascertaining crimes and discovering and securing criminals, in the terms prescribed by law.

This provision addresses the necessity to create an efficient police corps, specialised and closely linked to the judges and public prosecutors, exclusively dedicated to the prosecution of crimes. The judicial police are integrated in the general organisation of the security forces under the authority of the Ministry of Interior. Their selection and training, as well as promotion, comes from the Ministry of Interior. But in order to guarantee the full independence of the judiciary, as stated in SC, Article 117, it was considered necessary that police officers, when acting as judicial police and in the exercise of those functions, should act under the instructions of the courts or of public prosecutors. The question relevant to Spain is not who carries out the criminal investigation, but who directs and controls the criminal investigation the police carry out. Contrary to other systems of criminal justice, the Spanish system is characterised by the fact that there is not (at least formally) a preliminary and autonomous police investigation. The preliminary investigation is understood mainly as a jurisdictional activity, directed by the investigating judge and supervised by the public prosecutor. Obviously, the police play an essential role in the criminal justice system when they act in compliance with their functions of public security or of crime prevention, and discover evidence indicating the commission of a crime. Normally, the police are the first to receive the notitia criminis, although the CCP permits that the commission of an offence may be reported directly to the investigating judge or to the public prosecutor. Once an offence has been reported, there is a spectrum of possible activities to perform, depending on the type of offence. If it is certain that a crime has been committed, the police will gather all the information concerning the criminal fact: collect elements or items of evidence, take photographs, interrogate and collect information from witnesses and the victim, request the presence of a physician if there are injured persons; arrest the suspect, if he can be found, and interrogate him. These are the main police acts as regulated by CCP, Article 770. The activities that have been performed, and their results, will be detailed in a written report (called atestado). Within a maximum time of 24 hours, the police are obliged to issue the report (denuncia), together with their own investigative record (atestado), either to the public prosecutor or to the investigating judge (CCP, Article 284). The police officers shall execute the orders of the public prosecutor or the investigating judge in regard to the investigation of the offence (CCP, Article 287). The police will inform about the results obtained within the time established in the respective order (CCP, Article 296). If they are not able to fulfil an instruction, they shall report this immediately (CCP, Article 289). Both the investigating judge and the public prosecutor control the activity of the judicial police, not only with regard to the criminal investigation, but also on a disciplinary level.

23 On the tasks and powers of the judicial police within the criminal investigation see JJ Queralt, Introducción a la policía judicial (Barcelona, Bosch, 1999) 129ff. 24 See F Crespo Hellín, Problemática de la Nueva Regulación Constitucional de las Fuerzas y Cuerpos de Seguridad (Valencia, ed Universitat de Valencia, 1992).

712 Spain As mentioned earlier, when developing their functions of security or prevention of criminal activities, the police tend increasingly to perform an investigation on their own and they do not necessarily provide detailed information of each single act to the public prosecutor or to the judge. Investigations and intelligence work carried out by the police outside the criminal procedure are not considered legally prosecution. As mentioned above, the police have no prosecution powers, they act under the orders of the investigating judge, or the public prosecutor. (b) Prosecution Service As the notions of investigation and prosecution are not strictly differentiated in the Spanish criminal justice system, what is said for the investigation is applicable mutatis mutandis for the prosecution. If we define ‘prosecution’ as the power to initiate a criminal investigation, the public prosecutor has this power subject to the decision of the investigating judge. If we define the ‘prosecution’ as the power to carry out investigations, the Spanish public prosecutor is granted this power, but only in a limited way: only if the police or victim report is presented to him, and only until the case is handed over to the investigating judge. If we define ‘prosecution’ as the power to decide if a person will be subject to trial, the public prosecutor cannot decide this on its own. Finally, if ‘prosecution’ amounts to filing an indictment, the only public authority who has this power is the public prosecutor. The Public Prosecution Service is an institution with a special configuration: it is not part of the judicial power, although it is very closely connected to it.25 In fact, the public prosecutor is mentioned in the SC under the chapter entitled ‘Of the Judicial Power’ and members of the Public Prosecution Service occupy an equivalent position to that of the judges: they are recruited in the same way, they enjoy the same honours, and their payment is equal (Article 33, Estatuto Orgánico Ministerio Fiscal, EOMF).26 They are not subservient to the executive, but the Attorney General is nominated by the government, and thus the Public Prosecution Service is not entirely free from the influences of the latter. The function of the public prosecutor is primarily to ensure the application of the law on behalf of society and in the public interest; and secondly his main role within the criminal justice system consists in charging a criminal offence, whenever a crime has been committed, and presenting the case before the court; and third to direct the preliminary pre-trial police investigations in certain criminal proceedings. Moreover they ensure that no person is submitted to a criminal prosecution and trial if there is not enough evidence to support the accusation. In the criminal justice system its functions are merely prosecutorial and they do not act in the prevention field. They represent an essential element in the criminal justice system, making the accusatorial system possible.27

25 E Gómez Orbaneja and V Herce Quemada, Derecho Procesal Penal, 10th edn (Madrid, Artes Gráficas y Ediciones, 1994) 70; A Del Moral García, ‘Ministerio Fiscal y reforma de la Justicia’ (2002) 43 Jueces para la Democracia 21. 26 Organic Law 50/1981 of 30 December 1981 on the Pubic Prosecution Service Status and Organisation (Ley Orgánica del Estatuto Orgánico del Ministerio Fiscal). 27 C Conde-Pumpido Ferreiro, ‘El modelo post-constitucional del Ministerio Fiscal’ (1997) 27 Poder Judicial 10 ff.

General Aspects of the Procedure 713 According to the SC, the public prosecutor will exercise his/her functions following the principles of ‘unity of action’ and hierarchy,28 in order to guarantee a uniform application and interpretation of the legal provisions along the whole national territory. As stated earlier, the investigative pre-trial stage is merged with the prosecution of the crime. An investigation within the criminal proceedings will only be initiated if the public prosecutor or the investigating judge consider that the facts reported constitute an offence and are possibly true. Formally, the investigating judge directs the investigation and leads the collecting of evidence with the aim to prosecute, but this is a task that can also be attributed to the public prosecutor. In the abbreviated proceedings (offences punishable by no more than nine years’ imprisonment) introduced in 1988, the public prosecutor may direct extensively the initial preliminary investigation before the judicial criminal proceedings start (CCP, Article 773.2). Once the police have presented the victim’s report to the public prosecutor, instructions can be issued to the judicial police to collect evidence and conduct a preliminary investigation, which can last a maximum period of six months, unless an extension has been granted. The ability to instruct the police in the investigation stage of the criminal proceedings is also foreseen in the Rules for the Public Prosecution Service (Articles 1.5 EOMF and 18 bis for the Special Anti-Drug Prosecution—Fiscalía Especial Antidroga). As to the real involvement of the public prosecutor in the criminal investigation, it has to be stressed that the legal reform of 1988 has not led in all proceedings to a major involvement of the public prosecutor in the investigation. In fact, in the majority of cases, the involvement of the public prosecutor has not been significant, and in most cases the inquiry is still led by the investigating judge, under the supervision of the public prosecutor. Several reasons may explain why the system designed in 1988 has not been fully applied in practice. In those areas where there is a special public prosecutor’s office, the role of the public prosecutor is much more relevant. At the present moment there are three specialised public prosecutor’s offices: anti-drug, anti-corruption and the public prosecutor’s office in the National Court (Audiencia Nacional), the latter specialised mainly in terrorism. In these more complex cases the three specialised public prosecutor’s offices gain a leading position, while sharing the investigation with the investigating judge. The investigation may be under the control of the public prosecutor as long as no restrictive investigative measures are needed in order to proceed with the investigation. If, as a result of the preliminary investigation, the public prosecutor comes to the conclusion that the facts reported do not constitute an offence, he shall apply to end the case. If there is probable cause to believe that an offence has been committed, and the defendant has committed it, the public prosecutor—or another accusing party—requests the opening of the oral trial. The judge or the court shall grant this, except when the fact does not constitute a crime or when there are no rational indications of the existence of an offence (CCP, Article 783). Once the decision to proceed to trial has been taken, the investigating judge ceases to intervene in the case. Generally it could be affirmed that the investigating

28 A López López, ‘El principio de dependencia jerárquica en el Ministerio Fiscal español’ (1992) vol 1 Actualidad Penal, 266; M Colmenero Menéndez, ‘El principio de dependencia jerárquica’ in Estudios Jurídicos, Ministerio Fiscal (Centro de Estudios Jurídicos de la Administración de Justicia, 2000-V) 53 ff; P Lanzarote Martínez, La autonomía del Ministerio Fiscal en el proceso penal y la reforma de su estatuto orgánico (Madrid, La Ley 2008).

714 Spain judge concludes his intervention once he renders the decision to close the investigative stage and the case will proceed to trial. As to the public prosecutor, he ends his investigative functions once the investigating judge takes over the investigation of the case, but is active during the whole pre-trial stage supervising the investigation. (c) Private Accusers The Spanish CCP allows any Spanish citizen to become an accusing party in a criminal action, regardless of whether he or she is the victim or not.29 An action brought by the victim is called an acusación particular, an expression that could be translated as ‘non-public accusation’ or private prosecution. A criminal action brought by a non-aggrieved citizen is called an acusación popular or ‘popular prosecution’. Every citizen has the right to press charges in a criminal procedure. This right is established in SC, Article 12530 (and CCP, Article 270 and Article 19 LOPJ). The Constitution grants this right to ‘citizens’, but the concept has been interpreted in an extensive way to allow not only single individuals to press charges, but also associations31 (but not groups)— and companies.32 Certain citizens are excluded from the right of becoming an accusing party under SC, Article 125: the judges and those who have already been convicted twice for false accusation (CCP, Article 102). To file the accusatory pleadings as an acusación popular the law requires certain requisites to be fulfilled, which do not apply when the victim presses charges: to have Spanish citizenship, to provide security in the form of a bond, and to forgo any right to legal aid. Through popular action citizens can play an active role in the commencement of criminal proceedings, and their accusatory pleadings are equivalent to the indictment filed by the public prosecutor, as the structure, form and content are the same. The admission of the complaint is subject to judicial control. The judge will decide to end the case if the facts do not constitute a criminal offence (CCP, Article 313). According to the law, the accusing parties can ask for investigative measures to be ordered and the investigating judge will grant them if s/he deems them useful and not prejudicial (CCP, Article 310). The filing of a false indictment constitutes an offence defined in the Criminal Code and sanctioned with a penalty that can reach up to two years imprisonment (CC, Article 456).

29 See generally J Muerza Esparza et al, Derecho Procesal Penal, 8th edn (Madrid, CERA, 2007) 152–57; J Montero Aroca and others, Derecho Jurisdiccional III: Proceso Penal, 19th edn (Valencia, Tirant lo Blanch, 2011) 69–78. 30 Art 125 SC: ‘Citizens may engage in popular action and take part in the administration of justice through the institution of the jury, in the manner and with respect to those criminal trials as may be determined by law, as well as in customary and traditional courts.’ 31 STC 241/1992 21 December 1992. On the standing to be ‘popular accusation’ see J Pérez Gil, La acusación popular (Granada, Comares, 1998) 363ff. 32 The Supreme Court has rendered a decision limiting the standing of the popular accusation. In a very controversial case involving the most important banker in Spain, the Supreme Court stated that if the PP and the offended ask for the case to be dropped, the case could not proceed to trial on the sole basis of the indictment filed by the popular accuser (STS 1045/2007 17 December 2007 Botín case). Notwithstanding this decision, in the sentence rendered on 8 April 2008 (STS 54/2008 Atutxa case), the Supreme Court accepted the standing of the popular accuser (a civil association, ‘Manos Limpias’), even if the PP had requested the ending of the case.

General Aspects of the Procedure 715 Thus the criminal procedure can be commenced and—if founded—proceed to trial based on the accusatory pleadings filed by the offended person or by any Spanish citizen. Therefore, although the main function of the public prosecutor is to act as accusing party by filing the indictment, it can also act in the criminal procedure opposing to the indictment filed against the accused by another party. The indictment or accusatory pleadings filed by a citizen—be it the offended or otherwise—is subject to the admission of the investigating judge. The criminal investigation upon the facts described in the indictment and the evidence accompanying it, will only commence after the investigating judge has made an assessment of the nature of the facts described in indictment and the credibility of the accusation. (d) Investigating Judge The investigating judge has jurisdiction within the judicial district, a unit smaller than a province. It can be a single town or a group of villages, depending on the population. The investigating judge deals with civil as well as criminal matters. In the criminal field, the judge acts as an investigating judge but is also competent to deal with habeas corpus and minor offences procedures (Article 87 LOPJ). The investigating judge is responsible for the investigation of all kinds of criminal cases, where suspicion is reasonably directed towards a possible perpetrator, except those cases which fall under the competence of other courts, eg the National Court (Audiencia Nacional). The investigating judge has to search for incriminating as well as for exonerating evidence. S/he shall guarantee that the suspect or accused has been informed about their rights (CCP, Article 2 as well as Articles 234 and 248 LOPJ). According to the rules of the Spanish CCP, the investigating judge of the place where the offence has been committed is in charge of the investigative stage (CCP, Article 306), who will exercise its functions under the control of the public prosecutor. In practice, after receiving the police report (atestado), the investigating judge assesses whether the facts reported do constitute an offence under the criminal law and whether further investigation is needed. At the same time, the investigating judge shall inform the public prosecutor so that he can intervene in the judicial inquiry. In most criminal cases— those that are less complex—the police investigation does not need to be complemented. Only in the most complicated cases referring to serious offences it can be affirmed that the investigating judge, together with the public prosecutor, conduct de facto an investigation. In these cases, the investigating judge, more often than the public prosecutor, will give instructions to the judicial police. As a logical consequence of their expertise, the police determine the method of investigation, but they act always under the supervision of the investigating judge or the public prosecutor, which must be informed in due course about the investigative acts performed and the results obtained. Although the legal system still contemplates the judge as the director of the investigation, as already mentioned, in fact the involvement of the investigating judge and the public prosecutor in the pre-trial stage varies strongly from one procedure to another. It is not easy to answer the question as to when the investigating judge directs the criminal investigation and when this function is carried out by the public prosecutor. The question is not clearly addressed by the law, and as we have stated, it depends largely on different factors: the complexity of the case; the personality of the investigating judge and the public prosecutor (some of them see themselves exclusively as jurists, and seldom give orders to the police, while others are fond of getting actively involved in police activities); previous professional experience; the instructions given by the General Attorney

716 Spain or the chief prosecutor of the court etc. The workload of the court is also important. So, in mixed courts (with a single judge dealing with civil cases and investigation of crimes and usually an important workload), the judge will tend to concentrate much more on the civil cases and leave the investigation to the public prosecutor. Whereas investigating judges working in the National Court—which only have competencies in the criminal field—are usually very much involved in the crime investigation controlling closely the police activities and giving precise orders as to the gathering of evidence. All these circumstances will have an influence in the distribution of duties between investigating judge and public prosecutor and in their allocation of time to the investigation. In practice, it is frequently the case that the authority which receives the police report starts the investigation, so in some cases the decision as to whether the preliminary stage is commenced by a public prosecutor or an investigating judge will lie in the hands of the police. The investigative powers of the public prosecutor last only until the investigating judge starts the investigation: when the investigating judge intervenes, he/she is in charge of the investigation. The public prosecutor’s investigative powers, when they are allowed to exercise them, only last until the case comes into the hands of the investigating judge. The investigating judge can at any time require the public prosecutor to hand him the case to follow the judicial investigation. From that moment, the investigating judge has the leading role in the direction of the investigation as he will be the only one entitled to give instructions to the police. From that moment, the public prosecutor supervises the investigation run by the investigating judge and may request measures to be adopted.

6. The Necessary Threshold for Initiating Investigation and Prosecution and the Legality and Opportunity Principles (a) The Necessary Threshold for Initiating Investigation and Prosecution The CCP states that a criminal investigation directed by the investigating judge or the public prosecutor will take place when there is a notitia criminis, when there is a report or information as to the commission of acts that constitute or appear to be a criminal offence. No threshold or level of suspicion is legally defined to open the investigative stage of the criminal proceedings. The first and essential requisite is that the facts reported fall within one of the conducts typified as a criminal offence in the CC. Furthermore, the facts have to be concrete, not being possible to open a criminal investigation to elucidate undetermined behaviours, which would amount to a causa generalis or general investigation on a person, which is prohibited. In other words, upon reception of a criminal report, the investigating judge or the public prosecutor shall order the initiation of a preliminary investigation to verify whether the facts reported did really occur and who is responsible for them. Legally the investigating judge or the public prosecutor do not accord discretion in deciding to initiate the investigation. The CCP precisely states that the report (or accusatory pleadings) will only not be admitted—and thus the investigation not carried out—if the facts are not criminal or the report is manifestly false (CCP, Article 308). The strict application of the legality principle enshrined in the CCP obliges the investigating judge—or the public prosecutor—to initiate an investigation with regard to all crimes reported. In practice however, not all offences reported will lead to a thorough investigation, and thus the case will be dropped at a later stage due to insufficient evidence.

General Aspects of the Procedure 717 As seen, no defined legal threshold exists to carry out a preliminary investigation. However, the procedure will be closed if, after certain investigative acts, a serious suspicion against a person is not sustained. Furthermore, to adopt certain investigative acts, more than a simple suspicion is required. (b) The Legality and Opportunity Principles The SC (Article 124.1) states that the public prosecutor shall act under the principle of legality. As a consequence, it has no discretion to decide whether to prosecute or not, and cannot drop a case for policy reasons. In accordance with this, in the CCP the exercise of the criminal action is mandatory (Article 105) and might not be viewed as a right or a decision that can be taken on criteria of opportunity. The grounds to drop a case definitively (sobreseimiento definitivo with res iudicata) are legally specified: 1) where there is no evidence that the reported crime has been committed; 2) when the act does not amount to a criminal offence; 3) if the accused is not criminally liable (CCP, Article 637). A provisional ending of the case (with the possibility of reopening it in the future) will take place: where there is insufficient evidence, or there is circumstantial evidence as to the commitment of the crime, but the prospect of a conviction is lacking or there are not enough evidentiary elements to press charges against a person. Despite the Spanish criminal justice system being strictly ruled by the principle of legality— commencement, development and ending of the proceedings is established by the law, no penalty will be imposed without the legal procedure, and the consequences of the commitment of an offence are ruled by legal standards and not discretionary decisions—there exists a regulation of consensual forms of dealing with the criminal proceedings. The CCP does not recognise a ‘negotiated justice’ or any form of ‘plea bargaining’, but factually the use of guilty pleadings in order to obtain a lighter sentence is promoted. The public prosecutor encourages these agreements, but legally he/she has no discretionary powers to alter the charges or ask for a lesser sanction. The ending of a case without trial when the accused pleads guilty and accepts the indictment and the penalty requested by the prosecutor can be found in the original 1882 text of the CCP.33 This form of convicting without a trial, based on the agreement or conformidad of the defendant has been kept until now as a legally accepted form of ending the ordinary proceedings (CCP, Article 655) and the abbreviated procedure (CCP, Articles 784 and 787). The possibility of ending the case without trial is open to every defendant. It does not depend on a discretionary decision of the public prosecutor or a special request of the defence. The agreement is a legal way to put an end to proceedings, accepting the penalty asked for and avoiding the occurrence of the public oral trial. As to legal restrictions, this form of ending is only allowed in those cases where the penalty is not higher than six years’ imprisonment—for a non-custodial penalty, there is no limit—(CCP, Article 787(3)). In this context it must be stated that the present regulation of the plea procedure conforms with the constitutional principles, and specifically with the principle of legality—at least in the most important elements—as long as the benefits of the agreement are legally established and do not depend on the discretionary decision of the public prosecutor or any kind of negotiation, it does not infringe the legality principle. While the Anglo33 See S Barona Vilar, La conformidad en el proceso penal, (Valencia, Tirant lo Blanch, 1994) 244–47; M Aguilera Morales, El principio del consenso: La conformidad en el proceso penal (Barcelona, Cedecs Editorial, 1998) 59–73; P Butrón Baliña, La conformidad del acusado en el proceso penal (Madrid, McGraw-Hill, 1998) 11–18.

718 Spain American system of plea bargaining may lead to differences in the application of the law, depending on the negotiating ability of the defence and the interests of the particular public prosecutor, the reduction of the penalty established by the Spanish code in cases of agreement does not violate the principle of equality, as every accused can profit from the same reduction of the penalty in the same cases. This way of case settlement only affects the understanding of the principle of legality in the sense that no one will be convicted and no penalty will be imposed, but within the legally regulated criminal proceeding. This is called the procedural legality principle, and tries to avoid possible abuses in the criminal prosecution by stating that a criminal offence can only be punished if the procedural safeguards of the legal proceedings have been observed.

7. The Status of the Accused/Defendant The CCP uses different words to address the defendant in the criminal procedure, depending on the stage of the proceedings and the different legal situations the defendant goes through.34 Apart from the different ways the defendant can be called, essential is that he is granted the right to be presumed innocence until there is a judgment stating his guilt. The term ‘suspect’ is not used in the CCP. From the moment that judicial investigative acts are taken against one person, this person becomes an imputado: person who is subject to a judicial criminal investigation for the possible commission of a criminal offence or his participation in it. From the moment the investigating judge informs a person that a criminal investigation is directed against him, this person becomes imputado and from this moment all defence rights will be granted to him. When a report is admitted by the investigating judge in order to initiate an investigation, the suspect has the position of imputado. The concept is equivalent to what in other legal systems is denominated a suspect: a person under investigation but against whom charges have not been formally pressed. But the concept also encompasses the concept of defendant, as he is party to a criminal proceeding and thus has rights to apply for investigative measures and to be informed on the progress of the investigation. In a further stage of the proceedings, if there is enough evidence to file an indictment, the defendant will become accused: the CCP uses the term ‘accused’ to designate the defendant once the indictment or accusatory pleadings have been filed. This means that the pre-trial investigation has produced enough evidentiary material to accuse a certain person and proceed to trial. In the abbreviated proceedings the defendant passes from the position of imputado to accused, with no intermediate legal stage. However, in the ordinary proceedings for serious crime, once the pre-trial investigation has progressed and the initial suspicion becomes more grounded because there is more evidence indicating the possible guilt of a person, the investigating judge issues a decision stating this situation (auto de procesamiento).35 After making this provisional assessment during the pre-trial investigation, the defendant becomes formally procesado. The rights of the imputado and procesado are the same, only 34

On the legal position of the defendant and his rights see Bachmaier, Del Moral (n 3) 229ff. Auto de procesamiento means that the initial suspicion has been confirmed and there is not only a possibility but a probability that the defendant is responsible for the offence committed. 35

Investigation Measures 719 the degree of suspicion is higher when a person has been procesado. It announces that, according to the results of the investigation there is enough evidence to open a trial against the defendant. As explained above, the term ‘suspect’ is not used within the criminal procedure. It is more often used in the police preliminary investigations, which fall outside the criminal procedure. A person is called suspect when the police has indications that he might have committed a criminal offence. There is no legal definition of what might be identified as ‘enough indications’ to ground the suspicion against one person. If a crime is reported to the police, the police have to communicate it and hand the report to the investigating judge—or to the public prosecutor—within 24 hours. Until then, a person remains being a suspect, if he is not detained. Once a person is under detention, or the report has been checked by the judicial authority and admitted as sufficient to open a judicial investigation, the suspect becomes imputado. Under the Spanish criminal justice system a person has the status of defendant from the very beginning of the investigative pre-trial phase, in order to grant him all the procedural safeguards and constitutional rights. Once the case is handed to the judicial authorities— and this has to be done according to the law within 24 hours after having the notitia criminis—the person becomes imputado and is granted the right to remain silent, the right to be informed of the reasons why he is being investigated, the right to be assisted by lawyer of his own choice, the right to an interpreter if it is needed, the right to communicate with a relative or another person of his choice, the right to have a medical examination, etc. SC, Article 24.2 recognises the fundamental right to be assisted by counsel as one of the guarantees implied in the right to due process of law. The right to defence and to legal counsel aims to ensure effective respect for the principle of equality of arms and of contradiction.36 In the sphere of the criminal procedure, this right must be guaranteed upon arrest or detention, when held as a suspect, summoned to be interrogated as a suspect, and when charged with a criminal offence. In the Spanish criminal procedure neither the suspect nor the defendant can waive his right to legal counsel (CCP, Article 652).37 The right to self-defence recognised by Article 6.3 of the ECHR does not include the right to refuse legal counsel.

B. INVESTIGATION MEASURES

1. Introduction The goal of the pre-trial stage in the Spanish criminal justice system is to prepare the oral trial. The investigative acts carried out in the pre-trial phase are directed to find out the factual circumstances of the offence and to identify the possible perpetrator. The Explanatory Memorandum of the Spanish CCP of 1882 states that the real trial does not commence until the accusatory pleadings have been filed and the oral trial starts with its oral arguments. This means that since 1882 the Spanish criminal procedure has given pre-eminence to the oral trial, departing in this point from the previous inquisitorial practices.

36 37

STC 47/1987, 233/1998 1 December 1998. See also Díez-Picazo Giménez (n 2) 74–80. See SSTC 206/1991 30 October 1991, 29/1995 6 February 1995.

720 Spain It can be affirmed that only evidence presented before the trial court has evidentiary value and therefore the court, as a rule, can only ground the conviction sentence on the evidence presented at that very precise stage of the proceedings, as only in the oral trial can it be guaranteed that the fundamental principles of the criminal procedure are preserved: publicity, orality, immediacy and confrontation. The oral trial is the appropriate framework to fully guarantee that the constitutional right to a fair trial with all the procedural safeguards, recognised in Article 24 of the SC, is respected. In this regard, the Supreme Court in its judgment of 4 May 199538 states: [T]he judicial assessment of the evidence has to be based on evidentiary acts practised: a) with publicity and orality and without any kind of secrecy, so that the accomplishment of the judicial functions can be known by all the members of society; b) respecting the immediacy principle, which entails that the evidence is practised before the judges who have to render a decision, so that they can assess the evidence through their senses, and not through what other eyes and ears have seen or heard; and c) according to the contradiction principle (confrontation clause), to guarantee that all parties can present the arguments and evidence in their favour and contradict the evidence and arguments presented by the other parties, with full possibilities to cross-examine the witnesses.

The Spanish CC contains a classification of the offences dividing them into three categories: 1) serious offences (delitos graves); 2) less serious offences (delitos menos graves); and 3) misdemeanours (faltas) (CC, Article 13). Attending to the custodial penalty, the offences which are punished with imprisonment for more than three years fall within the category of serious offences, and those punished with a custodial penalty of six months up to three years are less serious offences (CC, Article 33.2 and 33.3). Misdemeanours or petty offences are those sanctioned with a minor penalty, eg to be deprived of a driving licence for a maximum period of one year; to be deprived of a firearms licence for a maximum time of one year; the prohibition from residing in a certain place, or order to keep away from a certain person up to a period of six months; a pecuniary penalty of up to two months; the domicile arrest up to a maximum of six weekends; community work for 16 to 96 hours (CC, Article 33.4).39 According to the SC, everyone has the obligation to cooperate with the courts. Article 118.1 of the SC states: It is compulsory to execute the sentences and other final judgments of Judges and Courts, as well as to collaborate with them as they may require during the course of trials and execution of judgments.

This obligation is also regulated in Article 17 of the LOPJ and Article18 bis,1.d) of Law 50/1981, on the Public Ministry (Estatuto Orgánico del Ministerio Fiscal). By virtue of these rules everyone, person or agency, is obliged to cooperate with the administration of justice. As the criminal investigation is normally directed by the investigating judge, there are no problems of getting the cooperation of private citizens or authorities, as all of them are 38

Quoted by JA Tomé García and others, Derecho Procesal Penal, 8th edn (Madrid, CERA, 2007) 477. The petty offences are regulated in CC, Art 617ff, and as an example we may mention: minor menaces, insults, causing minor injuries when the behaviour does not constitute an offence, striking someone without causing any injury, theft when the property stolen is less than 300 euros, intentional damage of less than 300 euros, leaving syringes or other dangerous instruments in public places where minors may be, painting graffiti on public or private buildings, minor disturbances of the public order, careless driving causing minor injuries or damages, etc. 39

Investigation Measures 721 obliged to comply with the orders and requests of the judges. Moreover, refusal to comply with a judge’s order constitutes a criminal offence.

2. Formal Designation as Suspect Except in cases of misdemeanour, a person will be designated as suspect when he is detained or when he is summoned to appear before the investigating judge to be informed that he is subject to a criminal investigation. As stated earlier, a person who is investigated judicially upon a suspicion is not called formally ‘suspect’, but imputado. Neither the law nor the case law provide for a certain degree of suspicion to initiate a criminal investigation against someone. In order to grant the rights of defence of the investigated person, at the presence of a very slight suspicion that he might have participated in the commission of the crime, the suspect will be cited to appear before the investigating judge as imputado, unless the investigation is declared secret in a reasoned judicial decision in order to ensure the efficiency of certain investigative measures. According to the law, the investigation can be declared secret for the suspect only for justified reasons and for a limited period of one month (CCP, Article 301). This time limit can however be extended. In June 2010 a new amendment of the CC was passed, introducing corporate criminal liability.40 This new provisions entered into force on 23 December 2010. However, at the present no special procedural rules have been passed with regard to legal persons and their position as defendants in the criminal procedure. Until specific procedural rules for corporate defendants are passed, the existing rules for the person of the defendant shall apply and shall be adapted to the particularities of the legal person.

3. Questioning the Suspect at the Pre-Trial Stage The police have power to interrogate the suspect and the witnesses, and in practice they are questioned either at the spot or at the police station. Before the interview the suspect has to be informed about his right to remain silent, and the right of non self-incrimination. He will also be informed of his right to be assisted by counsel and to have a free interpreter if he does not understand the Spanish language. The power to interrogate the suspect is included in the duty to perform all the necessary investigative measures to find out the author and circumstances of the crime (Articles 549 LOPJ and 282 CCP), but as a general rule the statements done during the police interrogatory cannot be evaluated as evidence at trial. The CCP regulates only the questioning of the suspect by the investigating judge. We will address here the questioning of the suspect by the investigating judge. Only when the criminal procedure has been opened and there are indications of a possible perpetrator, this person will be summoned by the investigating judge to be heard as imputado. Except in cases of misdemeanours or petty offences, where there is no pre-trial investigative phase, one of the first acts that takes place is the summoning of the suspect to declare

40

Organic Law 5/2010 of 22 June.

722 Spain before the investigating judge (CCP, Article 486). The defendant may be interviewed by the investigating judge upon his own motion or upon request of the public prosecutor so many times as the judge considers convenient (CCP, Article 385). The defendant may appear before the investigating judge every time he desires to make a statement (CCP, Article 400). The interrogatory will be made orally, but CCP, Article 390 expressly says that the investigating judge will allow the defendant to consult written notes if this facilitates the explanation of complex issues. This possibility will be granted if the investigating judge, taking into account the circumstances of the defendant and the complexity of the case, considers it appropriate. The questioning will take place before the investigating judge, in the presence of the public prosecutor and the defence lawyer. The public prosecutor has to be notified, in order to be present in the questioning as well as all the other accusing parties. The judicial clerk will be present and elaborate the report of the act. The defence lawyer shall be informed of the place and date of the questioning, as his presence is a requisite for the validity of the interview and for the effect of the statements. Only in relation to certain road traffic offences may the suspect appear before the investigating judge and declare without the presence of the lawyer. This first appearance is also used to inform the defendant of the existence of the investigation and his rights within the criminal procedure. The suspect has the right to remain silent or to declare, and he can opt to answer some questions and remain silent to others, and even make untrue statements, because answering against the truth is not legally sanctioned. The person summoned is obliged to appear before the investigating judge, but has no further obligation to cooperate, nor declare, as he is granted the right to remain silent. An interpreter shall be provided if the person does not understand or speak the Spanish language, in order to safeguard his fundamental right to defence enshrined in Article 24 of the SC. The same rules apply as to the detention or any other judicial hearing. As a rule the interviewing of the accused will take place in the offices of the investigating judge, but the CCP encompasses the possibility of interviewing the defendant in the crime scene, if this is deemed advisable. With regard to the detained suspect, the law says he has to be interviewed by the investigating judge within the next 24 hours. All investigative acts performed during the pre-trial stage are laid down in a written record, validated by the judicial clerk, and included in the case file. There is no remedy against the decision of the investigating judge to summon a suspect to be heard. Even the law provides that the investigating judge summons him to inform him of his condition as imputado and the existence of a criminal investigation against him. If the questioning is not carried out according to the law, or the fundamental rights of the defendant have not been respected, the parties can file a complaint for this violation. Furthermore, statements made without the procedural safeguards are not valid, and fall under the exclusionary rules of evidence.

4. Interrogation of Witnesses in the Investigation Stage (Including Complainants/Injured Parties) With regard to the witnesses, the CCP does not specifically accord the police agents the power to interview witnesses, except for asking their personal data, but this power is

Investigation Measures 723 implied in the general duty of the police to investigate the circumstances of the offence. The interviews performed by the police shall be recorded in writing, and normally a verbatim record is not made. As all other investigative acts, the questioning of witnesses will be done as a rule by the investigating judge. Any time where there are possible witnesses that can inform of the facts investigated, they should be summoned to be interviewed by the investigating judge. Except for petty offences—where there is no pre-trial investigative stage—and in accelerated proceedings,41 where the only questioning of the witnesses is carried out by the police on the spot, in the rest of criminal proceedings, the investigating judge will summon the witness if he considers that this is necessary to clarify the facts. An assessment of the degree of suspicion is necessary to open the judicial investigation, but once the procedure is initiated at the pre-trial stage, no special degree of suspicion is required to interview witnesses. During the witness interview by the investigating judge, the public prosecutor as well as the judicial clerk shall be present. The latter will take written record of the statements which will be given to the witness who may ask for corrections or additions. Afterwards, all the parties present during the act will sign the record. The CCP does not provide for tape recording of the witness interviews in the pre-trial phase. The investigating judge will advise the witness of his obligation to appear in the trial to give testimony. The presence of the defence lawyer is not needed. We have to recall that the pre-trial witness statements are not evidence. In order to evaluate them, the witness has to appear in court and be subject to the possibility of cross-examination. The defence lawyer, however, unless the pre-trial stage is declared secret, has access to the file, and may thus read the statements made by any witness in the pre-trial stage. If during the interview in the pre-trial stage the witness suggests personal criminal involvement, the witness must be advised of his rights to appoint counsel and remain silent, and the interview will cease until the counsel appears. Every suspect or witness who does not speak Spanish will get an interpreter appointed, in every stage of the proceedings. (a) The Obligation to Give Testimony As noted earlier, the SC states that every person is obliged to cooperate with the administration of justice and thus as a rule all individuals who live in Spanish territory have the obligation to give testimony in a criminal proceeding when they are summoned to do it. If the witness does not appear voluntarily, the judge is empowered to subpoena witnesses. Unjustified violation of the subpoena can result in a fine of from 200 up to 5000 euros. When the witness is summoned for the second time, he will be advised of the consequences of not complying with the court order: the police may take him by force to appear before the court and in addition he may be charged for the offence of justice obstruction (CCP,

41 Note that the ‘accelerated proceedings’ (procesos rápidos) constitute a special short-cut form to handle a criminal case in less time. This ‘fast track’ form is applicable to petty offences proceedings and abbreviated proceedings, mainly for flagrant cases. In sum there are abbreviated proceedings that are resolved through the ordinary procedural rules, and there are accelerated abbreviated proceedings, when the circumstances (mainly flagrancy) allow resolving the case in a more speedy way. Despite the name, abbreviated procedure (translated literally from the Spanish expression proceso abreviado), in fact it is an ordinary procedure for all the offences with a penalty up to nine years. In practice it is the ‘ordinary procedure’, but at the time of its introduction it was named abbreviated as opposed to the more lengthy procedure for serious offences, which the CCP calls proceso ordinario.

724 Spain Article 420) and held criminally liable for disobeying a court order. The obligation to give testimony in a criminal proceeding is encompassed within the general obligation to cooperate with the administration of justice, envisaged in SC, Article 118. The decision to summon or subpoena witnesses is not subject to review: it lies within the powers of the investigating judge. The way in which the interrogation takes place, may be objected. As the defendant and the public prosecutor can also request the investigating judge to summon witnesses, if these requests are denied, the denial can be reviewed later in the trial stage, and on appeal. Despite these legal provisions to force the cooperation of witnesses, in practice it often occurs that the non-appearance of a witness in the pre-trial stage is not sanctioned and it is infrequent that—at this stage—a criminal action is initiated against the uncooperative witness reluctant to testify. (b) Exemptions of the Obligation to Testify and other Special Rules Despite the general rule of the obligation to testify as witness, there are some exceptions to this rule. There are certain persons who are exempted from testifying, among whom the CCP mentions relatives of the defendant (direct line and lateral line to the second degree), the spouse, the religious ministers, the defence lawyer about facts that he has learned while acting as defence lawyer, and all those public servants who are legally obliged to observe the secrecy of information known in the exercise of their office (CCP, Article 416). A witness is not obliged to answer if the response could incriminate himself or one of the relatives mentioned in Article 416. The King, the Queen and the Crown Prince are also legally exempted of the obligation to give testimony in judicial proceedings (CCP, Article 411). Persons who have been judicially declared incompetent are also exempt from appearing as witnesses, as well as those who enjoy the privilege according to an international convention. There are other parties who have a duty of confidentiality pursuant to the position they hold in public institutions. A complete regulation on the testimonial privileges is still missing in the CCP, as no statutory provisions deal with the testimonial privileges of the journalists or other professionals who are subject to professional confidentiality. For reasons of their office in the state structure, the higher positions in the political institutions are allowed to give testimony as witnesses in written form, without appearing in court (among others, eg the President of the Government, the members of the Royal Family or the President of the Constitutional Court (CCP, Article 411.1). The possibility of giving testimony in a written form has raised concerns, as the judge will not have the chance to evaluate the behaviour of the witness and assess the reliability and trustworthiness of their statements through non-verbal movements and speech patterns and the right to cross-examination is also curtailed. Finally there is a long list of individuals who, due to their public position in state institutions, are exempt from the obligation to appear in court if summoned as witnesses, and who have the privilege to be examined in their office, eg MPs, magistrates of the Constitutional Court, the Ombudsman, etc (CCP, Article 412.5). In cases of illness, the witness may also be questioned in his home. The CCP provides specific rules for the statements of witnesses who reside out of the judicial district of the investigating judge. The law states that the investigating judge shall ask for judicial cooperation by the relevant judge of the district of the witness’s domicile. In those cases, written questions shall be sent to the competent investigating judge, who will question the witness although in practice it is becoming more frequent to use video conference devices. There are also special rules for minors who are summoned as witnesses, where an examination by a psychologist might be required prior to questioning.

Investigation Measures 725 There is the possibility in cases of emergency that witnesses may be summoned orally, note being taken in the record as to why this has been done. Moreover the CCP provides for the possibility that the investigating judge carries out the interrogatory of a witness in its domicile or whereabouts (CCP, Article 430). The investigating judge can also interview the witnesses on the spot if they are found there. (c) Evidentiary Value of Pre-Trial Witness Statements The statements of the witnesses are to be recorded in the file, and as stated for the suspect, only the testimony made before the trial court may be considered as evidence. In order to evaluate the statements as evidence, the witness has to appear before the trial court and give testimony. The previously recorded testimony can exceptionally be admitted as evidence in what is known as ‘unique opportunity’ and ‘unavailability of witness at court’.42 In these two cases, if the testimony was taken before a judge in a public hearing and with respect to the confrontation clause and the right to cross-examine the witness, if it is foreseeable that the witness will not be available at trial, the testimony so obtained can exceptionally be admitted as evidence, either by reading the written record or, preferably, by playing the filmed testimony in court. When exceptional circumstances make it impossible or extremely difficult for the witness to be present at trial and these difficulties are known in advance, the law provides for the possibility to interrogate the witness prior to the trial under the same conditions as in the trial. This is the so-called ‘anticipated practice of evidence’. This possibility was foreseen in the original text of the CCP of 1882, and the Constitutional Court has declared it in conformity with the fundamental rights of the defendant and the right to a fair trial. With regard to the pre-trial testimony which was not practiced as advanced evidence, and finally can not be reproduced during the trial exceptionally it can have evidentiary value if the witness has died or other exceptional circumstances have occurred. However, in the absence of other incriminating evidence, the sole pre-trial testimony could not ground a conviction sentence.

5. Arresting the Suspect and Detention for Questioning At this point we will only deal with the detention practiced by the police on their own, and not the one which has been ordered by the judicial authority and executed by the police. The deprivation of liberty which implies the police detention is only allowed, following Article 5 ECHR, to prevent the commission of an offence or within the criminal investigation of an offence already committed. If there is not a reasonable suspicion upon a certain individual of having perpetrated an offence, detention is unlawful. As a general rule detention is not admitted in relation with petty offences (CCP, Article 495), as it is considered to be inconsistent with the principle of proportionality. In petty offence cases the police shall only stop the suspect to ask his personal data—name, age, place of abode, address, etc—in order to be summoned for trial and only exceptionally in cases where the suspect is not identified and has no known abode, he may be detained even within the context of a petty offence (CCP, Article 495). The arrest or detention for questioning is executed by the 42

STC 154/1990 15 October 1990; STS 41/1991 25 February 1991; STS 94/1996 28 May 1996.

726 Spain police. In cases of red-handed or in flagrante offenders, not only the police, but any citizen may arrest the offender. The difference is that while for the police in these cases the arrest constitutes an obligation, the citizen is not obliged to take this action, but is empowered to arrest the suspect or presumed offender (CCP, Articles 491 and 492). There are certain persons who enjoy immunity and shall not be taken under arrest for questioning—among others, the King of Spain, MPs, the magistrates of the Constitutional Court and the diplomats, according to international conventions.43 The authorisation of the Parliament may be necessary to detain a MP. The arrested person must be informed immediately, and in a manner understandable to him, on the reasons for the detention and on his fundamental rights (SC, Article 17 and CCP, Article 520). The detainee has the right to remain silent. No active cooperation can be required from him. He has the right to communicate the fact and place of the detention to a relative or the person he designates and to be assisted by an interpreter for free (CCP, Article 520.2 d)) and if he is not a Spanish citizen, the relevant consulate shall be informed, unless he opposes this. Once the person has been detained, the detainee has the right to contact his lawyer, and not only inform him about the place of the detention, but he is accorded the right to be assisted by his lawyer or get a duty appointed one. The arrested person shall be granted the right to legal assistance also during the police proceedings. If he does not appoint a lawyer of his own choice, a duty lawyer will be appointed by the Bar Association, who has to appear within a maximum time of eight hours. Arrested persons who are unable to afford counsel are granted the right to a duty attorney, which will be paid a fixed sum by the Bar with public funds. Exception to the right to communicate and appoint lawyer are foreseen for cases of terrorism. An interpreter shall be granted to any detainee who does not understand Spanish. The assistance of an interpreter shall not entail any costs for the detainee (CCP, Article 520.2 e)). As to the time limit, SC, Article 17 states that preventive detention may last no longer than the time strictly required to carry out the necessary investigation to establish the facts, and in any case the arrested person must be set free or handed to the judicial authorities within a maximum time of 72 hours (see also CCP, Article 520). Exceptionally, in cases of terrorism, the law permits to extend the police detention for an additional period of 48 hours, as well as to decree an incommunicado detention (no communication with the outside world). In these cases the detainee will be assisted by an officially appointed lawyer, and not one of his own choice. Nevertheless the extension of the police detention as well as the exceptional restrictions of the fundamental rights of the detained person, are subject to a previous reasoned judicial warrant. The detention will be documented in the written police report that will be incorporated to the judicial dossier. The detention can be reviewed through the procedure of habeas corpus. This procedure is aimed at putting the detainee immediately under the judicial supervision and to stop an illicit detention. The procedure is regulated in Organic Law 6/1984, of 24 May 1984. Competent to decide on the habeas corpus is the investigating judge (Article 2 of the mentioned law). The persons who may resort to this remedy are: the person deprived of liberty; his relatives (parents, descendents and siblings); for minors or insane, their legal representatives; the public prosecutor; and the Ombudsman.

43

See S Aragoneses Martínez and others, Derecho Procesal Penal, 8th edn (Madrid, CERA, 2007) 399.

Investigation Measures 727 6. Pre-Trial Custodial Detention In order to avoid misunderstandings we will refer here to the remand in custody as a pretrial provisional measure. This measure is called in Spanish prisión preventiva (literally ‘preventive imprisonment’), and not detention, and the accused will be sent to a penitentiary institution, although separated from the convicted prisoners. According to CCP, Article 503 the suspect can only be remanded in custody when there is a reasonable suspicion that he has committed the offence, in the sense that there are enough indications to allow consideration of the suspect as probable author of the offence. (a) Requisites and Forms of Pre-Trial Remand in Custody The offence charged with must belong to a category of offences determined in the statutory provisions: the decision to remand an un-sentenced person to custody can only be taken if he is charged with an offence carrying a maximum penalty of not less than two years’ imprisonment (CCP, Article 503.1). Under exceptional circumstances a suspect charged with an offence that carries a lesser penalty, may be remanded for custody if he has been previously convicted for similar offences, which are not cancelled in the records, or when within the last two years he has been summoned to appear to court failing to do it or absconding. In addition, remand for custody is only lawful if it accomplishes one of the following aims defined in the CCP (Article 503.3): 1) there must be a real danger of absconding. The general risk of fleeing is not considered enough reason to order the remand for custody. The judge when evaluating this danger must take into account the type and seriousness of the offence, the financial, family and professional situation of the accused and the proximity of the trial; 2) if the remand for custody is necessary to avoid the disappearance of evidence or if there is a danger that the defendant may interfere with witnesses or otherwise obstruct the course of justice; 3) if there is a serious risk that the accused will act against the person or property of the victim. This aim was introduced to grant special protection for women victims of domestic violence; 4) and finally, to avoid the defendant to commit further offences of the designated categories before the trial. For the assessment of this condition, the circumstances and the seriousness of the offence have to be considered. The remand for custody can only last the time that is strictly necessary for achieving the aims that justified its ordering. Notwithstanding this general rule on the time limit the CCP—following SC, Article 17.4—provides for maximum time for custody for each charge and varies depending on the grounds that led to the remand. The Spanish CCP recognises three forms of pre-trial custody: (i) With communication: this is the normal form, as every measure restrictive of fundamental rights has to be practised only to the extent it is necessary and causing the less damage to the person affected. Thus, as a rule, every person in preventive custody has to be granted the right to communicate (CCP, Articles 523–26). (ii) Without communication, or incommunicado, only for the time strictly necessary to take relevant measures and secure evidence, and it can last no more than five days (CCP, Article 509) and only in cases of terrorism. Exceptionally it can be extended for an additional five days (CCP, Article 509.2 in relation with Article 384 bis).

728 Spain (iii) The preventive custody can be served in the defendant’s domicile for health reasons: if the stay in the penitentiary centre would entail serious risks for his health in cases the judge decides so (CCP, Article 508.1). The preventive imprisonment can also be substituted in those cases where the defendant is under medical drug addiction treatment and the entering into the prison would affect negatively to the success of it. In these cases the judge can opt to confine the defendant in a drug treatment centre (CCP, Article 508.2). The general rules of custodial pre-trial detention do not apply to the juvenile procedure. (b) The Decision on Pre-Trial Custodial Detention The measure to remand the defendant in pre-trial custody can only be adopted by the judicial authority—as a rule, the investigating judge who is directing the investigation. During the investigative stage it shall be authorised by the investigating judge, but once the trial has commenced, the competence to order it will be on the judge or court that is hearing the case: the criminal court or the provincial court. The judicial authority may only order remand for custody or remand on bail, if any of the accusing parties requests for it: the public prosecutor or/and the private accusers (CCP, Article 505.3). As soon as possible after the detention and in any case within the next 72 hours, a hearing will be held to decide on the situation of the defendant (CCP, Article 505.2). All parties shall be summoned to appear to this hearing and the right to be assisted by counsel has to be granted to the defendant. The defence lawyer will be present in the adoption of the measure. An interpreter shall be provided if the person does not understand or speak the Spanish language, in order to safeguard his fundamental right to defence enshrined in SC, Article 24. The decision that grants remand on bail or remand for custody has to be legally grounded and has to express what are the reasons that motivated the deprivation of freedom of the defendant and the elements that show the principle of proportionality has been respected.44 The judicial decision on the preventive imprisonment may be appealed, regardless if it has granted or denied it (CCP, Article 507). If the defendant has been remanded for custody, the appeal has to be decided with preference: the CCP provides that the oral hearing on the appeal shall be held within a maximum period of 10 days and has to be resolved within a period of 30 days (CCP, Articles 766.5 and 507.2). The execution takes place in the penitentiary centre. The defence lawyer can obviously visit his client in prison and monitor the legality and conditions of the preventive custody. All the custodial measures and penalties are controlled by the penitentiary judge or supervising prison judge (Juez de vigilancia penitenciaria). If exceptionally the pre-trial custody takes place in the domicile or in an addiction treatment centre, the investigating judge that granted the measure will be in charge of controlling its execution together with the judicial police. If the defendant retained in pre-trial custody is later judged not guilty and free of criminal liability for non-existence of the offence charged, he is entitled to payment of damages (CCP, Article 637.2 and 637.3 and Article 294.1 LOPJ). 44

SSTC 71/2000 13 March 2000, 206/2000 24 July 2000.

Investigation Measures 729 7. Interception of Communications (a) General Requirements It is well known that, according to the ECHR, there are some requirements to accept interference in fundamental rights as legitimate. These are, in short: 1. legal basis in domestic law; 2. the quality of the law: it must be accessible to the person concerned and must meet the foreseeability requirement (ie, the law must be sufficiently accessible as to permit citizens to know its meaning and foresee the consequences of their behaviour); 3. legitimate aims according to SC, Article 8.2; 4. necessity of the measure in a democratic society to achieve those aims. As mentioned earlier, according to Article 10 of the SC, Spanish courts shall follow the case law of the ECtHR. In practice, this case law has clearly influenced the case law of the Spanish Constitutional Court and Supreme Court when establishing the constitutional and legal requirements for the adoption of investigative measures within a criminal investigation that are restrictive of a fundamental right and, obviously, also the interception of communications. Every judicial warrant granting an investigative measure restrictive of the fundamental rights of the accused has to be reasoned, and the reasoning has to show that the aforementioned requisites established by the ECtHR are fulfilled. The monitoring of the communications might be granted with a lesser degree of suspicion and for less serious crimes than the telephone tapping. But still, there are no fixed parameters and the balancing test is taken on a case-to-case basis. Thus, in addition to having a sufficient legal basis, according to Spanish law investigative measures restrictive of the fundamental rights of the accused must meet following requisites to be justified: the aim pursued must be consistent with the Constitution; the measure must be adequate to achieve the goal pursued, ie to obtain data of substantial value that will elucidate the investigation of the crime at issue; it must be necessary, thus any restrictive measure has to be excluded if there is a different means to achieve the aim pursued which is less harmful for the accused; there must be a reasonable proportion between the fundamental right at stake and the expected result that the measure should obtain.45 These requirements are applicable to all investigative measures restrictive of fundamental rights. Therefore, in order to avoid reiterations, in the subsequent paragraphs we will refer to what has been explained here. (b) The Judicial Warrant With regard to communications, Article 18.3 of the SC guarantees the secrecy of communications with specific mention of the postal and telegraphic communications. As a rule, only the judicial authority may grant the encroachment of this fundamental right for purposes of a criminal investigation. The judicial warrant must be founded in objective data, mere suspicion not being sufficient. There must be a reasonable proportion between

45 The Constitutional Court has affirmed that the proportionality of the measure must be considered ‘through an analysis of the circumstances existing at the time it was accorded’, STC 126/2000 16 May 2000.

730 Spain the fundamental right at stake and the expected result that the measure should obtain.46 This means that the criminal facts at issue must be sufficiently serious, in themselves and in consideration of their social consequences. The regulation regarding the interception of communications is not complete, as it only mentions postal and telephone communications. Despite the fact that the Spanish CCP has not been amended in order to regulate the interception of electronic communications, nor to regulate the search of computers on-line, in practice the interception of electronic communications is ordered under the rules on telephone tapping which are construed to expand their scope to other kind of communications. This means that, like all other restrictions on the fundamental right to the privacy of communications, the surveillance of electronic communications can take place only where authorised by a judicial warrant within a criminal investigation or expressly consented by the party. All the answers regarding the interception of telephone tapping apply here.47 The decision to intercept a communication might be taken at the request of the judicial police, the public prosecutor or the investigating judge on its own motion, if he considers the measure necessary and proportionate for the aims of the criminal investigation. In case of emergency within the investigation of crimes of terrorism, the measure can be authorised by the Minister of the Interior or the Director of State Security. The investigating judge shall be informed immediately on the adoption of this measure, and within 72 hours the judge shall confirm it or revoke it (CCP, Article 579.4). SC, Article 120(3) requires that judgments be duly reasoned. In this regard, the Constitutional Court has held that: [T]he constitutional duty to provide a sufficient reason for the judicial decisions limiting fundamental rights, and to make explicit in them the circumstances that justify the limitation, is a formal requirement derived from the proportionality principle and is aimed at making possible to discuss and verify the legality and rationality of those judicial resolutions.48

The rationale of the decision must contain the necessary indications that the material requirements of the measure have been complied with, ie the judgment on the adequacy of the measure, on its necessity and on its proportion to the investigated offence. Therefore, the decision must express why the measure is useful and necessary to find out the facts and it must also specify the type of crime, the circumstances that determine its seriousness and the circumstantial evidence that leads to the investigation of that crime. Nevertheless, according to the Spanish case law it is sufficient that the text of the decision shows the reasons that—from an objective perspective—justify the restriction of a fundamental right in the particular case.49 Even when a warrant has neither made explicit its factual grounds nor expressed the precise reasoning that led the judge to assess the necessity and proportionality of the measure, it is considered correctly reasoned if compliance with the material requirements can be inferred from the facts described in the respective police application. This explains why the texts of these warrants tend to be rather short and usually refer to the reports that accompany the police applications.

46 On the principle of proportionality see W Degener, Grundsatz des Verhältnismäβigkeitsprinzips und strafprozessuale Zwangsmaβnahmen (Berlin, Duncker & Humblot, 1985). 47 In order to avoid reiterations we refer to what was said above on general requirements. 48 See STC 47/2000 17 October 2000, although with regard to telephone tapping. 49 STS 802/2002 24 April 2002.

Investigation Measures 731 Contrary to the legislation of other countries—as eg the German CCP—the Spanish law does not contain a list of crimes with regard to which it is permitted to order the interception of communications. Whether the measure of intercepting the communication is proportionate or not is something that has to be balanced in relation to the seriousness of the offence and the circumstances in which the crime was committed in the particular case. Expressly, the Constitutional Court has affirmed that the proportionality of an investigative measure restrictive of fundamental rights must be considered ‘through an analysis of the circumstances existing at the time it was accorded’.50 Thus, there is neither a list of offences for which the interception can be granted nor is there a general rule that marks a fixed threshold according to the seriousness and penalty of the offence, to adopt a restrictive measure. The CCP states that all judicial decisions of the investigating judge are subject to a remedy before the same judge who issued the decision (recurso de reforma), and further to appeal before the superior court. In practice, however, as the judicial warrant authorising the interception of communications is not communicated to the parties affected, it might not be reviewed before the measure has been executed and the defence is informed of the results. In theory also the public prosecutor could apply for the review of the measure if he thinks that it is not legal in a certain case, but this rarely occurs, because generally the investigating judge usually grant the measure only if the constitutional requirements are complied with. Problems have arisen with regard to the insufficient reasoning where the public prosecutor has requested from the investigating judge to review the judicial warrant and complete the reasoning, in order to ensure that the evidence will not be declared illegal. If the measure does not comply with the legal and constitutional requirements, the defence, once informed, will apply for the evidence to be excluded on the basis of illegally obtained evidence. (c) Limits on the Interception of Communications As to the time limit, the general rule valid for all restriction of fundamental rights applies here: the measure will only be granted for the time strictly necessary and every time extension shall be subject to judicial authorisation and grounded on the necessity of the measure. The CCP establishes a maximum time of three months, which might be extended upon judicial decision (CCP, Article 579.3). Client-attorney privilege is protected in the SC in Articles 24.1 (fundamental right to fair trial and access to justice) and 24.2, but a precise regulation is lacking in the procedural rules.51 The scientific literature has unanimously recognised that the privileged relation between defendant and his lawyer cannot be affected or limited by the interception of their communications.52 The protection of professional privilege has been recognised by

50

STC 126/2000 16 May 2000 para 8. On this topic see L Bachmaier Winter, ‘Intervenciones telefónicas y derechos de terceros en el proceso penal: La necesidad de una regulación legal del secreto profesional y de otras relaciones de confianza’ (2004) no 1–3 Revista Derecho Procesal, 41–82. 52 Although the following authors refer to telephone communications, the reasoning is applied to every kind of communications, see J Jiménez Campo, ‘La Garantía Constitucional del Secreto de las Comunicaciones’ (1987) 20 Revista Española de Derecho Constitucional 51; M Marchena Gómez, ‘Comentario a los Arts 416 a 418 LECrim’, Enjuiciamiento Criminal. Ley y Legislación Complementaria. Doctrina y Jurisprudencia vol 1 (Madrid, Trivium, 1998) 1516f; T López-Fragoso, Las Intervenciones Telefónicas en el Proceso Penal (Madrid, Colex, 1991) 52. 51

732 Spain the Constitutional Court, albeit in relation with cases of telephone tapping, and thus the communications intercepted between the defence lawyer and his client are rendered inadmissible evidence. With regard to the protection of third party interests, the Spanish law does not contain any specific provision. In practice third persons whose communications have been intercepted, because they communicated with the defendant, are neither informed nor accorded any kind of satisfaction for the intrusion in their privacy: the encroachment of their right to privacy is rendered justified within the aims of the investigation of a crime. Very often they never come to know that their communications have been intercepted, as there is no rule that obliges the authorities to inform them.53 (d) Execution of the Measure According to the original design of the CCP, as a rule the investigative measures can be executed directly by the investigating judge. However this is for long not the real practice. In practice the measures authorised by the investigating judge are executed by the judicial police. Precisely, for the execution of the interception of postal communications, the CCP provides that it may be carried out by the person responsible of the local postal office or the administrator of the postal or telecommunications service (CCP, Article 580). The employee of the postal service who intercepts the communication shall hand it over immediately to the investigating judge (CCP, Article 581), but in practice they communicate directly with the judicial police and the police officers will hand over all the evidence collected to the investigating judge. In any case the control upon the execution of the measure lies with the investigating judge and the public prosecutor. With regard to wire tapping, the original tapes or DVD on which the conversations have been recorded shall be given to the investigating judge, who will evaluate them and ensure they are kept safe for the trial. A transcript of the conversation or/and its translation may also be ordered by the judge. (e) Information About the Measure Adopted All investigative measures are recorded in writing. The decision to adopt the interception of communications (of any kind) shall be recorded in a separate file, not available to the defendant and its defence lawyer, until the measure has been finished and the notification will not hamper the investigation. The original letters or copies of the telegraphs shall be kept by the investigating judge, during the pre-trial stage. Once the decision to open the trial has been taken, all the evidentiary materials are handed over to the adjudicating court. Once the trial has ended, the originals of letters or other pieces of evidence shall be returned to its owner. All the investigation measures have to be communicated to the parties, unless this information will render inefficient the adoption of the measure. The general rule is that the parties during the pre-trial stage have access to the dossier, can participate in the collecting of evidence and request from the judge the adoption of investigative measures, except

53 We already addressed this issue and the need to implement adequate legislative measures to protect the rights of third parties affected by the investigative measures in Bachmaier (n 49).

Investigation Measures 733 in those cases where the investigation has been declared secret, or the accomplishment of some investigative acts have to be kept secret to the defendant.

8. Search of Premises SC, Article 18.2 accords constitutional protection to the right to privacy and specifically to the home privacy: no entry or search may be made without the consent of the occupant or a judicial warrant, except in cases where the offence was discovered while being committed or shortly thereafter (in flagrante delicto). The entry and search is widely regulated in the CCP (Articles 545–88), and as the majority of provisions have not been amended since the enactment of the CCP, the regulation should be updated. There is no special provision stating who is obliged to cooperate with the authorities in the search of premises. The general rule applies, that everybody is obliged to cooperate with the judicial authorities and it is mandatory to follow the judicial orders. With regard to searches of premises, this means that not only the owner or the person who is in the domicile or in the relevant premises are obliged to facilitate the compliance with the judicial warrant, but also that no person shall hinder the authorities to carry out the investigative measure. The duty to cooperate derives from the existence of a judicial warrant granting the search. If there is no judicial warrant, the search could only take place if the relevant person consents to it, but no one is obliged to give the consent. The entry and search of a private home needs the consent of the occupant, and lacking this, a judicial warrant issued by the investigating judge. With regard to public premises, the requirements are not clearly specified in the CCP.54 According to the case law, the general rule is that, if the entry and search takes place within an already pending criminal procedure, the investigative measure shall be authorised by the investigating judge. The warrant shall be grounded, but not so exhaustively as in the case of private premises.55 For the entry in places of worship, CCP, Article 549 states that the person in charge of them shall be informed, thus specific authorisation is not required. There is also a special provision for the entry and search of the King’s residence, requiring prior consent. This rule has never been applied, as the King yields inviolability. There are also special provisions regarding the entry and search of boats and diplomatic buildings. As a general rule, the police may enter and search dwellings only with the permission of the occupant or with a judicial warrant. Before entering the dwellings or closed place to be searched, the judicial police shall ask the occupant for consent, and if denied, give him notice of the judicial warrant (CCP, Article 566). The entry and search only shall be granted in a judicial warrant if the measure fulfils the requirement of adequacy which has already been explained earlier with regard to any 54 When regulating the measure of search and seizure, the Spanish CCP defines—not very clearly—which places are to be considered as domicile and what other places shall be considered as public premises (CCP, Art 547). It would suffice to say that all closed spaces which do not fall within the definition of private home, shall be considered as public premises. But, instead of including only this negative definition, the CCP also enumerates what shall be considered public buildings or premises: all those close spaces used for public administration; all those used for meetings or for entertainment and boats of the State (CCP, Art 547). See R Hinojosa Segovia, La diligencia de entrada y registro en lugar cerrado en el proceso penal (Madrid, Edersa, 1996) 64ff. 55 Hinojosa Segovia (n 52) 125–29.

734 Spain measure which causes an encroachment on a fundamental right. The judicial warrant must be founded, explaining the legal as well as the factual grounds that justify the limitation on a fundamental right. The rationale of the decision must contain the necessary indications that the material requirements of the measure have been complied with, ie the judgment on the adequacy of the measure—that there is a certain probability that in the relevant place evidentiary elements may be found, or the suspect is hiding in, on its necessity and on its proportion to the investigated offence. Furthermore the warrant has to indicate which is the home or building in which the entry and search is authorised, which authority or officers will perform the act, and if it shall take place during the daytime or by night. Entry and search by night is only allowed in extraordinary circumstances and when a pressing and urgent need justifies it. If the warrant does not explicitly allow the entry and search by night, the police shall set the place under surveillance and wait until daytime (CCP, Article 558). This rule does not apply for public buildings or spaces other than domiciles (CCP, Articles 546–47). As to the execution of the search of premises, the CCP states that the investigating judge shall perform the entry and search, but explicitly provides for the possibility that the investigating judge delegates its execution in the judicial police officers (CCP, Article 563). It is at odds with practice that the judge is present when the entry and search is carried out, save very special or serious cases. The same applies to the public prosecutor. As a general rule the law requires the judicial clerk to be present who will write a record and certify that the entry and search was done in conformity with the law, but this civil servant may also be substituted by another judicial or police officer he explicitly designates (CCP, Article 596). The search will be done in the presence of the occupant or the person who represents him, a relative or, if all the latter refuse to be present, two neighbours will be called to act as witness (CCP, Article 568). This provision does not apply in practice anymore, being enough for the legality of the entry that the interested persons (occupant, defendant, etc) are informed and notified, and if they renounce to be present, is suffices that the judicial clerk or his delegate are present. No secret searches are foreseen in the CCP. The defence lawyer does not need to be informed nor be present for the validity of the search. As to the provision of an interpreter, there is not a specific provision within the regulation of the measure of entry and search nor is there specific case law regarding this precise measure. The general rule is that every person subject to a criminal proceeding has the right to be assisted by an interpreter if he/she does not understand the Spanish language, and this could affect to the right to a defence and a fair trial.56 The Constitutional Court has declared that this right has to be interpreted ‘extensively’: the right to have an interpreter should be applied to all kind of procedural acts, even to police investigative acts. In practice, however, it is considered to be indispensable for the questioning of the suspect or any witness. The entry and search accomplished without the presence of an interpreter and the absence of it, until now, has not rendered the entry and search illegal or the objects seized affected by an evidentiary prohibition. Only if the entry and search was carried out on the basis of the consent of the occupant—without judicial warrant—and it turns out that the occupant did not understand that his consent was required, the entry and search would be illicit for lack of valid consent.

56

STC 74/1987 25 May 1987.

Investigation Measures 735 Exceptionally the CCP allows the police the entry and search of dwellings without judicial order and without permission in following cases: 1) where the offence is discovered at the moment it is committed or shortly after (offences in flagrante); 2) if during the persecution of the offender, he tries to hide entering a house or another closed place; and 3) where there is an exceptional or urgent need in cases of terrorism or organised crime (CCP, Article 553). Apart from the emergency cases, and the less strict requirements for the entry and search of public buildings, case law has stated that the search of the passenger’s luggage is a licit ordinary act within the control done by the customs authorities and such controls are not equivalent to the opening of postal parcels. Thus, a judicial warrant is not needed for the searching of luggage by customs officers.57 Like all other investigative measures restrictive of fundamental rights, the investigating judge is in charge of controlling the execution of the measure, under the supervision of the public prosecutor, and the law clerk will bear witness to these acts and take note of them in the file. There are no specific measures to protect third parties, but the general rule that the less harm is to be caused, applies here too.

9. Other Investigative Measures (a) Access to Relevant Premises (‘Crime Scene’) The usual practice is that the law enforcement officers who first arrive at the crime scene take all the necessary measures to protect the crime scene and ensure that no evidentiary elements disappear or become useless. As to the acts to be performed ‘on the spot’ the CCP (Articles 326–33) states that the investigating judge shall go to the crime scene accompanied by the judicial clerk and after having informed the public prosecutor. Also experts may be appointed to come to the crime scene inspection so that the observation is completed with their special knowledge. If a suspect has already been identified at that initial moment, he shall be given notice to enable him to be present with his attorney. Everything that has been observed during the crime scene inspection by the investigating judge will be included in the written record that the judicial clerk is obliged to do. The statements of witnesses present at the spot shall also be written down. All parties present during this act shall sign the record. This record with the examination can be produced as evidence at the trial. Notwithstanding these provisions of the CCP, nowadays inquiry on the spot is often performed only by the police investigators and in practice we can affirm that only in very serious cases where the investigating judge deems it necessary to go himself to the crime scene to directly observe the place and make an inspection on the spot. Specifically the CCP mentions following activities the police shall carry out: 1) request the presence of a physician, if necessary; 2) take photographs or record videos, especially when there is a danger that some pieces of evidence may disappear; 3) collect the objects of the crime that are under danger of disappearing and place them at the judge’s disposal; 4) collect personal data of eye witnesses, including information about how they can be reached; 5) retain the

57

STS 8 June 2001.

736 Spain vehicle and the driving licence, in case of traffic offences; 6) if a corpse is found on a road or on a railway, they shall move it to an adequate place, in order to re-establish traffic communications (CCP, Articles 770–71). (b) Monitoring of Bank Transactions There are no special rules on the monitoring of bank transactions. The general rules on production of documents and providing information are applicable here. Data of bank clients and their transactions are covered by the data protection law.58 The lack of precise regulation does not mean that it is an infrequent measure, rather the contrary. It is also very frequent that tracing bank transactions requires the international cooperation, as money laundering or hiding the illicit proceeds of crime usually goes the way of off shore banks. Under the CCP, the investigating judge may issue an order to produce bank documents, if such information is needed for the relevant investigation. Reasonable and grounded suspicion is required to warrant any investigative measures encroaching fundamental rights. Bank information is covered by the right to privacy, and thus subject to the same conditions as all other investigative measures restrictive of fundamental rights. The general requirements stated above when analysing the interception of communications apply here too. The banks shall also cooperate with the judicial authorities within the exercise of their judicial power. The measure will usually be executed by the judicial police, specialised in economic criminality—tax law, corporate law, financial transactions, accountancy—but the public prosecutor may also take direct part in the execution with the judicial police as well as the investigating judge. (c) Tracking and Tracing of Objects and Persons The CCP does not regulate this measure as it has been traditionally considered a police investigative measure. If no electronic or GPS devices are used no judicial warrant is required to track persons and the necessity of the measure falls usually within the discretional assessment of the law enforcement agents. However, once the criminal procedure has formally started, the public prosecutor and the investigating judge can order the police to adopt this measure. With regard to the tracing of objects, there are no legal provisions. This measure is not subject to judicial warrant as long as it does not use electronic or GPS surveillance devices. The following answers refer to the tracking of persons without electronic devices and the tracing of objects. In case electronic devices where to be used for tracking persons, the

58 Additional rule 1 of the 26/1988 Act provides as follows: ‘1. Financial institutions must keep confidential all and any information relating to balances, positions, transactions and other operations of its customers and will not communicate them or disclose them to third parties. 2. Exceptions to this duty are: (i) information that the client or the law allow to be communicated or disclosed to third parties; or where appropriate, (ii) information to be submitted to, or required by, the supervisory authorities. Transfer of information must comply with the instructions given by the client or the law respectively. 3. Exchange of information between financial institutions belonging to the same consolidated group are also exempt from the confidentiality obligation. 4. Any breach of this provision will be considered as a serious breach (infracción grave) and sanctions provided for in 26/1988 Act will apply.’

Investigation Measures 737 general rules for measures restrictive of fundamental rights that require a judicial warrant, would apply. Still, the CCP does not contain any reference to this kind of surveillance. Reasonable suspicion of the commission of a crime and usefulness of the measure will be the criteria for the police officers to adopt this measure. There is no legal threshold that determines to which type of offences the tracking and tracing can be adopted. In practice, however, as economic resources are limited, the active involvement of the police is influenced by the gravity of the offence. However there are neither legal rules nor clear criminal policy guidelines that give an answer to this question. As long as the tracking and tracing does not require interception of communications, search of premises or other more intrusive investigative measures, there are no formal restrictions. However, again, this is a field that remains within the police activities and lacks of precise regulation. The measure will be executed by law enforcement agents, who will document the results of the measure in a written report. The obligation to cooperate is only imposed with regard to judicial administration and judicial orders. There is a duty not to obstruct the activities of the law enforcement agents, but as far as we know there is no express rule that imposes the obligation to cooperate with the police in the tracking of persons or tracing of objects. No notifications are required and the measure is usually carried out without the knowledge of the person who is under observation or the holders of the object that is being traced. If the police should exceed their discretionary powers, or subject someone to a tracking operation without any reason, disciplinary proceedings could be opened. If the measure is adopted within a police preventive investigation, the superior of the relevant officers would be in charge of controlling the execution of it. If the tracking and tracing has been ordered by the public prosecutor or the investigating judge within a criminal procedure, these authorities will be in charge of controlling its execution. (d) Body Searches Lacking a complete statutory regulation of the investigative measures that are directed to the body of a living person, it may be sensible to start with the classification of body searches established by the Constitutional Court in its case law and by the literature. Following the classification established by the literature we may distinguish between external body searches (inspecciones corporales) where the physical integrity is not affected and more intrusive body searches called intervenciones corporales. For external searches, Organic Law on Citizen’s Protection 1/1992, 21 February (Ley Orgánica de Protección Ciudadana), mentions the power of police agents to frisk (cacheo) a person suspected of committing an offence without a previous judicial order. A suspect may also be frisked for safety reasons, to check whether he is carrying weapons or other dangerous objects. For frisking by the police, the measure is not limited to a specific type of offences and the proportionality test is interpreted in a less rigorous way. But there are no fixed standards in the rules. The searching of clothing made without a serious suspicion will be considered as an infringement of the fundamental right to privacy. More superficial external body searches, as frisking a person or doing an X-ray inspection, may be ordered by the police in case of suspicion. But those body searches, although being external, that may affect the fundamental right to privacy should not be performed without the consent of the affected person.

738 Spain Lacking the express consent, a judicial warrant is needed.59 More intrusive body searches also require a judicial warrant and the requirements for any encroachment of fundamental rights. The law does not regulate special restrictions on body searches, but certain conditions, according to case law shall be respected: 1) an external body search may only be carried out by a person of the same sex as the suspect; 2) it is to be done in a place out of sight of the public if, according to the intensity of the searching, it is deemed convenient; and 3) in any event, degrading or humiliating positions for the searched person have to be avoided.60 Measures that affect the physical integrity of the person, such as taking blood samples, can only be done by sanitary professionals and with the proper sanitary requirements. We have made a distinction between clothing searches or frisking and body searches that affect the fundamental right either to privacy or physical integrity. In the category of body searches, the taking of samples for the aim of carrying out DNA tests have a particular treatment.61 CCP, Article 363 allows the investigating judge to order, in a grounded warrant, those body searches which are deemed adequate with the aim of obtaining biological samples and determining the DNA of the suspect. This regulation is to be considered incomplete and clearly insufficient as the legal provision does not define in which way the law enforcement agencies can obtain the necessary DNA samples, or how the measure is to be performed. (e) Freezing of Assets In principle, only the judicial authorities may order the seizure of objects or property within a criminal case. Objects may be seized for evidentiary purposes concerning the offence. However, acting with a judicial warrant that grants an entry and search, the judicial police officers are empowered to collect all those items, instruments or documents found during the search of private dwellings or business premises, if they are relevant for the investigation of the offence, may help to discover the truth or may serve as evidence (CCP, Article 574). Property—and other rights—may also be seized for other purposes different than evidentiary. The judge may order the forfeiture of property concerning the proceeds of the criminal activity and also property of the defendant to secure the compensation for damages. No threshold is provided to issue an order to freeze property or secure evidence. As a rule, from the moment there appear to be indications of a criminal offence and the judicial investigation is started, the investigating judge will set the amount the suspect has to deposit as a bond. The amount of the surety will be at least one third of the calculation of the possible damages (CCP, Article 589). If the defendant does not deposit the surety for the civil damages within the time prescribed by the judge, the accusing parties may apply for the confiscation of property, but the confiscation can also be ordered by the investigating judge on his motion. The forfeiture under these circumstances is governed by the rules

59 See V Moreno Catena et al, Derecho Procesal Penal (Valencia, 2005) 230; A Gil Hernández, Intervenciones corporales y derechos fundamentales, 3rd edn (Madrid, Tirant lo Blanch, 1995) 60ff. 60 STS 31 March 2000; ATS 5 October 2005. 61 On the problematic issues of the DNA tests in criminal investigations, see J F Etxeberría Guridi, Los análisis de ADN y su aplicación en el proceso penal (Granada, Comares, 2000).

Investigation Measures 739 of the Code of Civil Procedure and as it is essentially a civil claim to secure damages, many of the procedural safeguards extended to the suspect do not apply. These precautionary measures are usually ordered at the pre-trial stage by the investigating judge—if property is found at that moment, of course—and they are kept in a file different from the one dealing with the criminal liability. However they can be ordered any time during the criminal procedure or once the judgment has been rendered and civil damages have been awarded.62 The freezing or confiscation of property will be ordered by the investigating judge, upon the request of the judicial police, the public prosecutor, the parties (private accusing parties or the civil party), or on its own motion. Freezing orders require always the issuing of a judicial warrant. Other measures to secure evidence might be adopted by the public prosecutor: eg regarding an object, the public prosecutor may require the owner to keep the object unchanged during the investigations and keep it at the disposal of the authorities for further analysis. This measure, as it does not entail a deprivation of property, only a limitation as to its free disposal, may be ordered by the public prosecutor. The freezing of immovable property is governed by the rules of the Public Property Registry. Property seized may be sold at public auction and the proceeds deposited in a bank account: perishable goods, items abandoned by the owner, those which quickly lose their value, or finally elements whose storage entail excessive costs. The proceeds obtained from the sale of the objects seized will serve to pay the costs of their storage and sale, and the rest will be deposited and used for compensation for damages, if the proceedings result in a conviction sentence. Finally, any money left may be used to pay the costs and fees caused in the proceedings (CCP, Article 366 quinquies). Once the seized property is no longer needed for the investigation or for the advance of the proceedings, and in any case if the proceedings have been stayed or ended with a sentence, it should be returned to its owner or person in control of it when the object was seized (CCP, Article 620). Nevertheless, the victim or person who has suffered loss can ask the court not to return the seized objects, even if the criminal case has been dropped definitively, in order to secure the evidence for the civil procedure. The instruments or objects used for committing crimes will be either stored or, if possible, sold to pay the damages.63 The measure shall be notified to all the parties to the proceedings. Moreover, the attachment of immovable property shall be notified to the person who appears to be the owner in the Registry. The decision to secure or seize other objects will be notified to their holders. The attachment of shares that are negotiated in the stock exchange shall be notified to the supervisory authorities. The company has the obligation to inform the shareholders and other stakeholders within the company.

62 It is important to note that in Spanish criminal procedure the civil action will be decided within the criminal procedure. The public prosecutor has the obligation to file the civil action jointly with the criminal accusatory pleadings, unless the victim or damaged expressly renounces to the civil claim or decides to sue before the civil courts. 63 Eg, in drug trafficking cases, high-speed boats are frequently used to import drugs into the country by sea. Those boats shall be confiscated as an instrument used for the crime. Once the boats are no longer needed, either for investigative or evidentiary purposes, they shall be sold at auction. If the confiscated material has no other use than to commit crimes, it shall be stored until the procedure ends, or destroyed if the storage entails risks or high costs. Nevertheless, the statutory provisions regarding the destiny of the confiscated objects and items lacks clarity.

740 Spain Written notice shall be taken in the judicial pre-trial record, like all other pre-trial measures. The control over all the activities in the pre-trial stage lies within the investigating judge, supervised by the public prosecutor. (f) Infiltration The acting of an undercover agent shall only be granted within the scope of investigations connected with organised crime. The concept of organised crime within this context shall be understood to mean an association of three or more persons formed for the purpose of carrying out, on a permanent or repeated basis, acts whose purpose is the commission of one or more of the offences listed in CCP, Article 282.4 bis, which are eg: the offence of kidnapping, prostitution offences, offences against property and the socio-economic order, offences of trafficking in endangered species of flora or fauna, the offence of trafficking in nuclear and radioactive material, public health offences, terrorism offences, or the offence of currency counterfeiting. The assumed identity shall be granted by the Ministry of the Interior for a six-month period, which may be extended by periods of equal duration. The undercover agent can only be a criminal investigation officer, usually integrated in one of the units of the judicial police. No officer may be obliged to act as an undercover agent. The competent investigating judge in a reasoned decision or the public prosecutor giving immediate notice to the judge—who will confirm or refuse the measure—are empowered to authorise criminal investigation officers to act under an assumed identity. The assumed identity shall be granted by the Ministry of the Interior for a six-month period, which may be extended by periods of equal duration. The activities of the undercover agent shall be under the control of the investigating judge, through the superior officers of the agent acting on cover. An undercover agent is exempt from criminal liability in respect of any activities that are necessary for the investigation provided that they comply with the proportionality requirement.64 Finally, undercover agents are being empowered to use additional investigative methods, subject to strict judicial and at the public prosecutor’s control. Where investigative activities could affect fundamental rights, the undercover agent shall apply to the competent judicial body for the relevant authorisations (CCP, Article 282.3 bis). (g) Controlled Deliveries CCP, Article 263 bis regulates the measure of controlled deliveries of drugs and material related to the production and products of the drug dealing crime. The regulation on controlled deliveries is very brief, only one rule deals with this measure. The measure consists in allowing a package, containing presumably drugs, to keep on circulating to its destiny, in order to identify other members of the criminal organisation. If the package should be opened, the judicial authorisation is required. But, the decision not to intercept the package with drugs, does not entail an encroachment of fundamental rights, thus this measure can be adopted not only by a judicial authority, but also by the public prosecutor and by the relevant police authority. If the measure is authorised by the public prosecutor, this

64

See extensively F Gascón Inchausti, Infiltración policial y ‘agente encubierto’ (Granada, Comares, 2001) 73f.

Investigation Measures 741 decision is not subject to direct appeal. Once the investigation comes under the direction of the investigating judge, the investigating judge can review the decision adopted by the public prosecutor on its own motion. Neither the CCP nor the case law define which is the exact degree of suspicion required to adopt this measure. CCP, Article 263 bis expressly says that to adopt the decision on the controlled delivery the relevant authority shall take into account the necessity of the measure with regard to the offence investigated, the seriousness of the crime and the possibilities to effectively follow and control the delivery. Furthermore Article 263 bis 4 speaks of ‘suspicious’ deliveries containing drugs, but does not specify more. In practice the threshold for the adoption of this measure is lower than for the interception of communications, as can be shown by the fact that the CCP allows the police to order this measure. The CCP does not define the material scope of this measure, but regarding the object of the controlled delivery (drugs and drug-related materials) and the aim of it, the measure is used within the investigation of organised drug trafficking crimes. The CCP does not provide for a maximum time limit, thus the general rule applies: the measure will take no longer than the time strictly necessary to find out the destiny and addressee of the delivery. The police officers in charge of the operation shall periodically inform the investigating judge or the public prosecutor. According to the statutory provisions (CCP, Article 263 bis 1) the measure may be adopted by the investigating judge, the public prosecutor or the chief of the relevant judicial police unit in a reasoned decision. If it is adopted by the police, they will inform immediately on the decision the public prosecutor or the investigating judge. If granted by the public prosecutor, it will inform immediately the investigating judge. In practice the measure is usually adopted upon decision of the investigating judge or the public prosecutor.

20 Sweden CHRISTOFFER WONG

A. GENERAL ASPECTS OF THE PROCEDURE

1. Phases of the Criminal Procedure

T

HE CRIMINAL PROCESS in Sweden is divided into two distinct phases: the investigative phase or preliminary investigation (förundersökning)1 and the trial (rättegång), with the indictment (åtals väckande) serving as the dividing line between these two phases. In the literature, one also comes across the term ‘preliminary enquiry’ (förutredning),2 which refers to the stage before the opening of a preliminary investigation. But the preliminary enquiry stage is not regulated by law and such intrusive measures as discussed in sections B.4 and B.5 below may, in principle, not be applied for the purpose of preliminary enquiry. According to c 23 s 1 para 1 of the Code of Judicial Procedure (rättegångsbalk, RB),3 a preliminary investigation shall be opened as soon as there is reason to believe that a crime susceptible to public prosecution4 has been committed, either through a report or by other means. The legality principle is thus the main rule with regard to the opening of a preliminary investigation. However, the statute also provides that a preliminary investigation is not required if: — —

it is evident that an investigation would be futile; the cost of an investigation would be disproportionate having regard to the significance of the case, and prosecution of the crime would in any case not lead to a more severe punishment than fines;

1 As there is no official English translation of the Swedish statutes and different authorities or commentators may use different translations, the original Swedish terms (within brackets and in italics) are given, when necessary, directly after the translated term. The translation and original term may not correspond exactly to each other in grammatical form. 2 See T Bring and C Diesen, Förundersökning, 4th edn (Stockholm, Norstedts, 2009) 234; PO Ekelöf, H Edelstam, M Pauli, Rättegång V, 8th edn (Stockholm, Norstedts, 2011) 111. 3 There is no separate code for criminal procedure as the Swedish Code of Judicial Procedure (rättegångsbalk 1942: 740) contains provisions for both civil and criminal proceedings. Reference to provisions in this Code will from now on be presented according to the format [chapter]:[section][subsection], eg 45:5III RB. 4 This report deals only with public prosecution. Although an aggrieved party (målsägande) may also bring a private prosecution, the right thereto is in most cases subsidiary to the Public Prosecutor’s power to prosecute, and private prosecutions are extremely rare and normally restricted to crimes such as defamation. This report will also ignore the special cases in which prosecutions are brought by the Parliamentary Ombudsman (justitieombudsmannen, JO) or the Chancellor of Justice (justitiekanslern, JK).

General Aspects of the Procedure 743 —

it can be expected that the prosecution would not be brought as a result of a formal decision to drop charges (åtalsunderlåtelse)5 or the application of rules on special leave to proceed with prosecution, provided that private or public interest is not being disregarded; or — there is otherwise sufficient reason for prosecution of a crime that is not expected to lead to a more severe punishment than fines (or a crime committed before the court).6

The preliminary investigation has two stated functions according to 23:2 RB. In the first place, the investigation shall seek to establish the identity of the person who ‘reasonably can be suspected’ (skäligen kan misstänkas) of the crime and to determine whether there are sufficient reasons to prosecute that suspect. Thus, despite the fact that a preliminary investigation is opened as a result of a crime having been committed, the express purpose of the investigation, according to the Swedish statute, is more suspect-related than crime-related. Another stated function of the preliminary investigation is that the case shall be prepared in such a way that evidence can be presented in a concentrated manner at the main hearing. In the literature, it has been maintained that there is a third function of the preliminary investigation, not expressly stated in the statute. According to this view, the preliminary investigation provides an opportunity for the suspect to gain insight into the criminal proceeding against him/her and to ‘enrich’ the material to be considered in the investigation.7 However, this should more appropriately be seen as a consequence of the structure of the preliminary investigation rather than a function. A preliminary investigation can be terminated in a number of ways. If the investigation shows that there is sufficient evidence to prosecute, the Public Prosecutor may either go ahead with the prosecution, by issuing an indictment, or alternatively drop the charges. If, on the other hand, the evidence gathered is not sufficient for bringing a prosecution, the Public Prosecutor may either make a formal decision not to prosecute—a so-called ‘negative decision on prosecution’ (negativt åtalsbeslut),8 or decide to ‘close the preliminary investigation’ (att lägga ned förundersökningen).9 Neither a negative decision on prosecution nor a decision to close a preliminary investigation has the force of res judicata; a preliminary investigation that has once been closed can therefore be reopened, eg when new evidence emerges.10 According to 20:6 RB, the Public Prosecutor (allmän åklagare) shall bring prosecutions for crimes that are subject to public prosecution (cf the duty to open a preliminary investigation pursuant to 23:2 RB). It is always the Public Prosecutor—and not the police—who brings prosecutions. The legality principle is applicable, and one speaks of the Public Prosecutor’s ‘absolute duty to prosecute’ (absolut åtalsplikt). This means that when the conditions for

5

See section C.2 below. 23:1II, 23:4a and 23:22 RB. Whereas in the first three situations described above, there will be no prosecution; the last-mentioned situation refers to the case where the crime is being prosecuted directly without a preliminary investigation. 7 Ekelöf, Edelstam, Pauli (n 2) 105. 8 23:20 RB. 9 23:4II RB. 10 There is however no express statutory provision on the possibility of reopening of a preliminary investigation. See discussions in Bring, Diesen (n 2) 228–29. 6

744 Sweden prosecution are satisfied,11 the prosecutor must prosecute; failure to prosecute in such cases may even amount to ‘dereliction of duties’ (tjänstefel), a criminal offence pursuant to c 20 s 1 CC.12 However, RB also provides a number of ways in which prosecution can be avoided; these alternative ways of disposing a case are examined in section C2 below. It is a feature of Swedish criminal procedure that a person is formally charged—through an indictment—at a relatively late stage of the process. As pointed out above, this takes place when the preliminary investigation is to terminate. This differs quite markedly from legal systems in which a person is charged on a lower degree of suspicion and is then detained or given bail while the police or prosecution authorities continue with the investigation. It is therefore not at all unusual for the Swedish Public Prosecutor to issue an European arrest warrant or a request for extradition of a suspect, before making a decision to indict the person. This does not detract from the fact that the request nonetheless is made for the purpose of prosecution, albeit that there is no actual indictment. The distinction between the overall process of prosecution (lagföring) and the actual act of prosecuting a person through indictment may be a source of confusion for foreign lawyers who only have access to translated texts of the Swedish legislation. The criminal proceeding enters the trial phase when the Public Prosecutor lodges a written indictment (stämningsansökan) with the court.13 This act of the prosecutor is the formal act of prosecution in the narrow sense (åtals väckande). The court will then issue the indictment and serve it to the accused if the prosecutor’s application is not dismissed.14 In the majority of cases, the accused will be summoned to appear in person at a main hearing. It is at this stage of the proceeding that the accused—formerly a suspect—assumes the role of a party to the proceeding; the significance of this position will be developed in section A2 below. To conclude this brief overview of the criminal proceeding, it may be said in summary that Sweden recognises the two distinct phases of investigation and trial. This differs from those legal systems—as is the case in a number of Member States in the EU—that adopt a tripartite distinction: investigation—prosecution—bringing to justice.15 The Swedish preliminary investigation will thus cover what in such legal systems would constitute investigation and some elements of prosecution. The remaining elements of prosecution and bringing to judgment will then correspond to the Swedish trial phase of the proceeding, including the act of lodging the indictment at the court.

11 The statute does not indicate when the conditions for prosecutions are satisfied. In the literature, reference is usually made to the term ‘when the prosecutor on objective grounds can expect a conviction by the court’, when the question of the required strength of evidence for prosecution is discussed—see, eg Ekelöf, Edelstam, Pauli (n 2) para 37 and commentary to 45:1 RB in Fitger (n 39). 12 Penal Code (brottsbalken, 1962: 700), reference to provisions in this Code are presented according to the format [chapter]:[section][subsection], eg 9:1II CC. The canonical abbreviation for the Penal Code is ‘BrB’; the use of ‘CC’ in this report is imposed upon the author. 13 See 45:1I RB. In some specified cases the PP may issue the indictment directly to the accused, see 45:1II RB. 14 45:10 and 45:9 RB. The case is rarely dismissed already at this stage. However, procedural bars may become apparent after the indictment is served upon the accused, which may entail the dismissal of the case without a main hearing. 15 Cf the terminology in the French language (rechercher—poursuivre—renvoyer en jugement) and in the German language (Untersuchung—Verfolgung—Anklageerhebung), or under German law the Vorverfahren or Ermittlungsverfahren under the leadership of the PP, the Zwischenverfahren (§§ 199–211 CCP) and the Hauptverfahren (§§ 213–75 CCP).

General Aspects of the Procedure 745 2. Bodies Carrying out Investigation and Prosecution, and the Status of the Suspect and the Accused Both a police authority (polismyndighet) and a Public Prosecutor16 have the competence to open a preliminary investigation.17 However, a Public Prosecutor should take over a preliminary investigation initiated by a police authority when a person is identified who on reasonable ground18 can be suspected of having committed the crime being investigated. Even in other cases the Public Prosecutor may take over a preliminary investigation if this is motivated by special reasons.19 When a preliminary investigation is led by a Public Prosecutor, he or she will have at his/her disposal the resources of the police authority.20 It is for the chief investigator to decide which measures to take during the investigation and when and how to conclude the investigation; the actual investigative measures such as surveillance and questioning of suspects and witnesses are normally conducted by the police. The use of some forms of investigative measures is, however, subject to the approval of the court, as will be discussed in section B below. Thus, the chief investigator in Sweden—who is, as mentioned above, a police officer or a Public Prosecutor—has some of the power and functions of the ‘investigating judge’21 that exists in some other legal systems, albeit that the Swedish chief investigator’s power to use intrusive measures is, comparatively speaking, rather circumscribed. The preliminary investigation follows the general features of an inquisitorial model, in that the suspect is not considered to be a party to the investigation.22 The inquisitorial model is expressed through—inter alia—the requirement of objectivity on the part of the investigator. It is explicitly stated in the statute that the investigation should take into account not only circumstances that are disadvantageous for the suspect, but also those circumstances that speak in his/her favour.23 In this sense, the suspect can be seen as an object 16 Formally it is thus the police authority as such, as opposed to a police officer, who makes the decision to open a preliminary investigation, although this function can be delegated within the authority. In the case of the prosecutor, it is the individual prosecutor who makes the decision. 17 The person in charge of the preliminary investigation, whether an officer belonging to a police authority or a PP, is designated as the ‘chief investigator’ (undersökningsledaren). 18 The expression ‘on reasonable ground’ (skäligen misstänkt) expresses an intermediate degree of suspicion. This can be compared with the much lower degree of ‘reason to believe’ [that a crime has been committed] (anledning att anta), which is sufficient for the opening of a preliminary investigation, see 23:1 RB. This corresponds, when the object is a person rather than a crime, to the expression [a person who] ‘can be suspected’ [of having committed a crime] (den som kan misstänkas för brott). A degree of suspicion higher than that of ‘on reasonable ground’ is that of ‘on probable cause’ (på sannolika skäl). This degree of suspicion is required for some intrusive measures, (eg ‘remand in custody’ (häktning) according to 24:1 RB). The expression ‘sufficient reasons’ (tillräckliga skäl) for prosecution is also used in the sense already discussed in n 11 above. Finally, ‘beyond reasonable doubt’ (utom rimligt tvivel) is the standard required for a conviction in criminal proceedings. The expressions used to indicate different degrees of suspicion can thus be ranked according to the following: reason to believe, on reasonable ground can be suspected, probable cause, sufficient reason, beyond reasonable doubt. 19 23:3I RB. 20 23:3II RB. 21 The figure of the ‘investigating judge’ has not been well-received in Sweden. Even during most of the nineteenth century when the criminal process was inquisitorial, it was the judge in the main proceeding who was in charge of the case and who could order the prosecutor to supplement the investigation. When reform leading to the present Code of Judicial Procedure was discussed in the 1920s, the idea of introducing the investigative judge in Sweden was firmly rejected. See Rättegång V, p 107 with further references given in n 2, loc cit. 22 For the use of certain investigative measures for which the court’s approval is required, the suspect is, however, regarded as the counter-part of the prosecutor in the proceeding concerning the particular investigative measure. 23 23:4I RB.

746 Sweden of investigation in a process that aims at the establishment of truth. However, the suspect may also be seen as a participant in the process—without being a full ‘party’, in the adversarial sense—in that the suspect may contribute material to the preliminary investigation and he/she may also request the chief investigator to undertake certain investigative measures or to comment in general on what measures are necessary for the investigation.24 The rights and privileges of the suspect are discussed in more details in section E below. The prosecutor’s decision to prosecute will lead to a judicial process. The accused, quite plainly, cannot attack the prosecutor’s decision as such; once an indictment has been lodged, it is for the court to decide on all matters related to the prosecution. If, on the other hand, the prosecutor decides not to proceed with prosecution (either by a negative decision on prosecution, or a decision to close the preliminary investigation),25 the aggrieved party may request that a superior prosecutor should review the case. This request for review is constructed as an administrative—ie not judicial—remedy, and is based on the principle that an administrative body may re-examine its own decision and a superior administrative body may review the decisions of an inferior body within the same hierarchical structure.26 As Public Prosecutors are independent judicial officers, a superior prosecutor will not be able to instruct the inferior prosecutor to change his/her decision. Thus, in those cases where the superior prosecutor disagrees with the decision not to prosecute, he or she will take over the case and make his/her own decision to prosecute with his/her own indictment. In this connection, it may also be noted that the prosecutor’s decision not to prosecute will trigger the aggrieved party’s subsidiary right to prosecute.27 Once an indictment is lodged at the court, the chief investigator is no longer the ‘master’ of the case. The process enters into the trial phase and the Public Prosecutor and the accused28 (formerly, the suspect) are now equal parties29 to the proceeding before an independent and impartial court. This marks the transition to the accusatory or adversarial model. The case will then be disposed of through a judgment or other final decisions of the court after both sides have been heard.30 To characterise the change in status from suspect to accused, one may say that while the suspect enjoys all the rights, freedoms and privileges connected with anyone who is suspected of having committed a criminal offence, the accused enjoys, additionally, the fair-trial rights etc of anyone who is a party to a judicial proceeding. In connection with the description of preliminary investigation, the principle of objectivity arises. The requirement of objectivity is perhaps natural, given the inquisitorial nature 24

23:18I RB. See section A1 above. 26 For discussion of the review procedure, see the Prosecution Authority’s internal report, Åklagarmyndighetens rättsliga tillsyn (Stockholm, 1 October 2010). For a brief explanation in English of the review procedure see information at the website of the Prosecution Authority, at www.aklagare.se/In-English/The-role-of-the-prosecutor/ Decision-to-prosecute/Retrial/. 27 20:8I RB. 28 The ‘accused’ (den tilltalade) is sometimes also called the ‘defendant’ (no direct Swedish equivalent, as the literal translation ‘svaranden’ is used only in civil cases). These terms are used interchangeably in this report. Sometimes the term ‘the defence’ (försvaret) is used to denote the accused’s side comprising the accused and his/ her defence counsel. 29 The aggrieved party may ‘join’ (biträda) the prosecution in the criminal proceeding (20:8II RB). Moreover, the aggrieved party’s civil claims may be heard and decided together with the criminal proceeding (c 22 RB). These scenarios will not be discussed further. 30 There exists, however, a possibility for the prosecutor to decide to drop the charges even after the indictment, but before the court gives its verdict on the case (20:7a RB). 25

General Aspects of the Procedure 747 of the preliminary investigation. Questions have been raised, however, on whether the Public Prosecutor is required to remain objective even when the criminal proceeding has entered its adversarial phase. On this question it can be said that there is no explicit statutory provision for the trial phase that corresponds to 23:4 RB with respect to preliminary investigations. However, the general consensus in the literature is that the Public Prosecutor, as a public servant, is under a general obligation to be objective in the exercise of his/her functions, and this means that the Public Prosecutor shall remain objective even during the trial phase of the proceeding when he/she assumes the role of a party,31 albeit that it is somewhat ‘watered down’ as it has also been argued.32

3. Financial Criminal Investigations The same system of rules applies to all criminal investigations in Sweden regardless of the nature of the offence concerned. A special body, however, has been established in Sweden to coordinate the work of different authorities under a common leadership. The Swedish Economic Crime Authority (Ekobrottsmyndigheten)33 was established to coordinate measures against economic crimes such as those committed in connection with bankruptcies, tax frauds, insider trading and crimes against the financial interests of the EU. This Authority has its own budget and its own Director-General; the Authority is staffed by Public Prosecutors, police officers, accountants and experts on financial matters who can contribute their knowledge in the investigation of economic crimes. The Economic Crime Authority is the Swedish contact point for OLAF (the European Anti-Fraud Office of the EU Commission). When carrying out criminal investigations, the staff members of the Economic Crime Authority exercise their power and functions as Public Prosecutors and police officers. There are a number of other public (administrative) authorities that may initiate their own investigations into certain conduct that later becomes the subject of a criminal investigation, eg the Financial Supervisory Authority (Finansinspektionen), the Social Insurance Office (Försäkringskassan) and the Tax Authority (Skatteverket).34 These authorities may pass on information obtained from their investigations to the Economic Crime Authority, the police or the Prosecution Authority, but these other authorities are not part of the preliminary criminal investigation. Obviously, private entities—eg banks, currency exchange offices and insurance companies—may also report irregularities and transmit material to the police and/or prosecution authorities that may be used as evidence in a criminal investigation. For financial crimes involving corruption, there is a National Unit against Corruption (Riksenheten mot korruption) within the Prosecution Authority. The Customs Office (Tullverket) and the Coast Guards (Kustbevakningen), obviously, will also assume some investigative functions as part of their normal activities. 31

See Pauli (n 2) 199; Bring, Diesen (n 2) 74ff. L Heuman, ‘Domarens och åklagarens skyldighet att vara objektiv’ [2004–05] Juridisk Tidskrift 42–60. See the Government’s ordinance with instructions to the Economic Crime Authority (Förordning med instruktion för Ekobrottsmyndigheten, 2007:972) with subsequent amendments up to ordinance 2011:661. 34 For tax offences, there is a special law on investigation measures undertaken by the Tax Authority: Act on the assistance of the Tax Authority in criminal investigations (lag om skatteverkets medverkan i brottsutredning 1997:1024). 32 33

748 Sweden 4. Sources of Criminal Procedural Law According to the Swedish Constitution, Provisions concerning … relations between individuals and the public institutions which relate to the obligations of individuals, or which otherwise encroach on their personal or economic circumstances

shall be adopted by means of an act of law, ie by Parliament (8:2 RF).35 In other cases, the Government may adopt provisions in the form of, for instance, an ordinance. The extent to which provisions of procedural law need to be given as an act of law depends, therefore, on whether the provisions ‘encroach on [the individual’s] personal or economic circumstances’ and not simply by virtue of their being a part of the criminal procedural law. Moreover, in accordance with 11:2 RF, Rules concerning the judicial tasks of the courts, the main features of their organisation and legal proceedings … are laid down in law.

This means that the procedure during the trial phase of the criminal proceeding requires a statutory base in the form of law. The main legislation in this area is RB, to which reference has already been made. As for the investigative phase, it follows from the constitutional principles that intrusive investigative measures must have a statutory base in law, while other measures may be regulated in other manners. Thus, the use of all intrusive investigative measures (straffprocessuella tvångsmedel) must be regulated by law; the main provisions concerning these measures are found in cc 24–28 RB. Furthermore, as is already apparent from the above, the main principles concerning the preliminary investigation are also given in the form of law, in this case under c 23 RB. The provisions in c 23 RB are supplemented by the ordinance on preliminary crime investigation (förundersökningskungörelse 1947: 948, FUK). Furthermore, the Prosecution Authority issues regulations (föreskrifter), advice (allmänna råd), guidelines (riktlinjer) and handbooks (handböcker) that normally are followed by the PPs although they do not have the force of law. These instruments deal with a wide range of subjects ranging from administrative matters, guidelines for fines to interpretation of the law. There is only one Code of Judicial Procedure, covering both civil and criminal proceedings. Care must be taken when consulting extracts of the Code, especially in translated versions,36 as some of the provisions apply to both civil and criminal proceedings while others are applicable only in one of these types of proceedings. Some provisions are also specific to the various stages of the trial (ie at the district court, court of appeal or the Supreme Court). Although amendments are regularly made to the Code of Judicial Procedure, the Code has retained its basic structure from 1942. In fact quite a few of the provisions have 35 There are actually four ‘basic laws’ (grundlagar) with equal constitutional rank, but for most purposes the only basic law that is relevant is the Instrument of Government (Regeringsform 1974: 151, RF). Reference to provisions in this Instrument of Government are according to the format [chapter]:[section][subsection], eg 8:2I RF. When the term ‘Constitution’ is used without qualification, it refers to the Instrument of Government. An English translation of the Constitution is available at the website of the Swedish Parliament: www.riksdagen. se/templates/R_Page____6307.aspx. 36 In 1998 the Ministry of Justice published an English translation of the Code of Judicial Procedure in the publication Ds 1998:65 The Swedish Code of Judicial Procedure. Ds 1998:65 is available at www.sweden.gov.se/ sb/d/3926/a/27778. This translation has not been updated.

General Aspects of the Procedure 749 remained unaltered since the enactment of the code. Many of the provisions in RB only lay down general principles and their wordings are usually general enough to cover most cases, so that new situations can be dealt with through interpretation of the law. Thus one of the features of Swedish procedural law is that it often lacks precise provisions in particular areas. The travaux préparatoires to RB and subsequent amendments,37 case law38 and judicial literature39 are accepted as supplementary sources of law. However, given the ‘antiquity’ of the original travaux préparatoires to RB, they are usually unhelpful for finding solutions to modern problems. However, statements made in connection with later amendments to RB can be used to illuminate the legislative intention, especially when the express purpose of new legislation is to depart from the fundamental principles of procedural law.40 Since 1995, the ECHR has been a part of Swedish law and is directly applicable as such.41 The case law of the ECtHR is regularly referred to in Swedish judgments; understandably, this is the case more for the Supreme Court than for courts at lower levels. ECtHR case law provides the courts in Sweden with a rich source for their interpretation of Swedish statutes, when they are general in character and it is uncertain whether a certain rule is applicable in a certain situation. Furthermore, although the ECHR is directly applicable only as law, ie not as a constitutional law, the Convention is considered in practice to have a higher rank than ordinary law, so that other laws should be interpreted in conformity with the ECHR, and where there is a direct conflict between a Swedish provision and the ECHR, the ECHR prevails. Thus, the Supreme Court will go against its own previous decisions or decide a case contra legem if Swedish law is found to be in breach of ECHR. In a case that has attracted much debate42 the Supreme Court deferred to the ECHR to such an extent that the Supreme Court’s judgment was based on its speculation as to how the ECtHR might decide a similar case in the future, ie not based on existing ECtHR case law. However, 37 The main source in the travaux préparatoires is the government bill put before the Parliament. However, all other publicly available statements made during the entire legislative process are also considered part of the travaux préparatoires. 38 There is no official doctrine of precedents in Swedish law, but the judgments of the Supreme Court are in practice followed. See, however, the discussion below on ECHR. Note, for the purpose of the field being studied, there is little case law since many of the decisions made during the investigative stage are made by the chief investigator and are not appealable to the courts, eg whether someone ‘may be suspected’ of having committed a crime. 39 For questions of criminal procedure, the law on the extent to which an indictment may be amended or the boundary of res judicata, for instance, has been very influenced by academic writings. The series of books under the title Rättegång, originally written by Per Olof Ekelöf, is an authoritative textbook used in the universities and referred to by the courts. P Fitger, Rättegångsbalken (Commentary on the Code of Judicial Procedure, online version available at the paid database http://zeteo.nj.se, latest update per 1 February 2011) is a much-used reference work used by practitioners. Also widely used are, on the preliminary investigation, T Bring and C Diesen, Förundersökning, 4th edn (Stockholm, Norstedts, 2009); and on intrusive investigative measures, P Lindberg, Straffprocessuella tvångsmedel—när och hur får de användas?, 2nd edn (Stockholm, Thomson Reuters, 2009). 40 See, for instance, the changes made through the parliamentary bills proposition 2004/05:131 En modernare rättegång reformering av processen i allmän domstol and proposition 2007/08:139 En modernare rättegång några ytterligare frågor, both on a major reform of the system of courts of general jurisdiction. 41 Sweden adheres to the so-called dualistic model of international law, which means that the courts in Sweden cannot directly apply international conventions as such. However, the Parliament has passed a special Act on the European Convention (lag om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna, 1994:1219), which states, simply, that the ECHR has the force of law in Sweden. This means that the whole of the ECHR and its protocols can be applied as a direct source of law by the courts and other public authorities. 42 See the judgment of the Supreme Court in NJA 2005, s 805. NJA: Nytt Juridiskt Arkiv, this is the annual law report of cases from the Supreme Court of Sweden. Cases are identified by the year and the first page of the case in the annual report.

750 Sweden in a later case,43 the Supreme Court has been more restrictive and maintained that it could only disapply a Swedish law if it is clear that the Swedish law breaches the ECHR. Another source of law is the law of the EU, including the case law of the ECJ. In this respect, the Swedish position does not differ from that of any other Member States in that all courts must give effect to EU law through various means, including the use of EU lawconforming interpretation and the setting aside of domestic legislation. Swedish courts have been reluctant to request preliminary rulings from the ECJ when a question of EU arises, but such requests are now being made more frequently.44

B. INVESTIGATION MEASURES

1. First Measures in a Preliminary Investigation As mentioned in section A above, a preliminary investigation shall be opened as soon as there is reason to believe that a crime has been committed. The opening of the preliminary investigation is made by a formal decision of the chief investigator. It is considered that—for reasons of legal certainty—the authorities must avoid any doubt as to whether an investigation has commenced as many provisions of RB are applicable only when there is an ongoing preliminary investigation.45 During the preliminary investigation, any person may be questioned, if it is considered that he or she may provide relevant any information that is relevant to the investigation.46 According to 23:8I RB, a police officer may require that a person present at the crime scene47 should attend a questioning session, to be held immediately at the police station (medföljande till förhör). This is applicable to any person and is based on the principle that each and every one has a duty to assist in the investigation of crimes; at this stage it is not necessary to classify a person either as a suspect, a witness or any other person who may provide information concerning the crime scene. That person may be escorted to the police station if he or she refuses voluntarily to follow the police officer and does not give a reason for refusal. Due to the special importance and the urgent need of hearing persons with a particularly close contact to the crime scene as soon as possible, the police officer is given the power (23:8III RB) to conduct questioning pursuant to this provision even before a formal decision is made to open a preliminary investigation. In normal cases, the person questioned is under no obligation to remain for questioning for more than

43 NJA 2010 s 168. A number of cases from the district courts and court of appeal have refused to follow the precedent of the Supreme Court in NJA 2010 s 168 and disapplied the Swedish law that these courts considered to be in breach of the ECHR. In Sweden, the lower courts are in theory not bound by the decisions of the higher courts but in practice the decisions of the Supreme Court are almost always followed. 44 See the chapter on courts of general jurisdiction in X Groussot, C Wong, A Inghammar, A Bruzelius, ‘Empowering national courts of general jurisdictions’, Empowering National Courts in EU Law (Stockholm, SIEPS, 2009): 32009. 45 See 1a § FUK; Bring, Diesen (n 2) 220. 46 23:6 RB. 47 This provision is applicable to the ‘immediate’ crime scene regardless of the type of offence being investigated. Its application is extended through 23:8II RB to ‘an area connected to a place where a crime has recently been committed’, or an attempt, provided that the crime is punishable by a minimum sentence of four years’ imprisonment.

Investigation Measures 751 six hours—this is the rule for questioning in general and will be discussed further under section B2 below.

2. Questioning of Persons in General In cases other than those dealt with under section B1 above, a person may be summoned for questioning. The questioning normally takes place at the police station but may also be conducted by other means, eg via telephone. A summons to questioning may be combined with the stipulation that an administrative fine (vite) be imposed if the summoned person fails to appear.48 A person summoned for question who fails to appear at the hearing may be picked up by the police and escorted to the hearing, if the questioning is to take place within 100 km of that person’s residence or the place where he/she received the summons. If the crime being investigated is punishable by a prison sentence and there is a well-grounded risk that the person would not heed the summons or that he or she would frustrate the investigation (by destroying evidence or otherwise), that person may be escorted to the hearing even without previously having been summoned for questioning. Furthermore, the restriction of 100 km will not apply if it is of ‘manifest importance’ (synnerlig vikt) to the investigation that the questioning should take place. Although the above is applicable to any person being questioned in the course of a preliminary investigation, the statute requires that a witness or other persons questioned without being a suspect should be escorted by the police for question only if this is of ‘particular importance’ (särskild vikt).49 A person summoned for questioning is under no obligation to remain at the police station for more than six hours. He or she may leave the police station immediately and may not be summoned again for questioning before 12 hours have expired, unless there are ‘manifest reasons’ (synnerliga skäl) for doing so. If the person being questioned is under 15 years of age, he or she is under no obligation to remain for more than three hours; however, if it is of ‘special importance’ for the investigation, he or she may be required to remain, additionally, for three hours.50 The statute provides that when the person being questioned is below 15 years of age, his or her custodian should be present unless this would jeopardise the investigation.51 In other cases, it is for the chief investigator to decide who may be present during the questioning, having regard to the purposes of the investigation. The statute requires that, as far as possible, a reliable witness should be present during the questioning.52 According to FUK § 7, this person should, in the first place, be a ‘citizen witness’ (medborgarvittne);53 however, in practice a citizen witness is often not available. A qualified 48 See 23:6a RB. Further provisions on the actual imposition of the administrative and appeals against this are found in 23:6a and 23:6b RB. 49 The legal base of the scheme procedure described here is found in 23:7 RB. For clarification, it may be added that the Swedish expression synnerlig vikt means a greater importance than särskild vikt. However, in the present context the difference between ‘manifest importance’ and ‘particular importance’ is not great. 50 23:9II RB. 51 23:10VI RB. Note also that special provisions in a separate statute, the Young Offences Act (lag med särskilda bestämmelser om unga lagöverträdare, 1964: 167), are often applicable to persons under 15, 18 and 21 years of age. Special treatments of these young offenders are not discussed in the present report. 52 23:10II RB. 53 ‘Citizens witnesses’ are citizens nominated by the municipalities to follow the work of the police in the police district in accordance with the Act on citizen witnesses (lag om medborgarvittnen 1981: 324). There are

752 Sweden legal counsel for the person questioned has the right to be present during the questioning if this does not jeopardize the investigation.54 The chief investigator may decide that the content of the questioning may not be divulged by the person heard or others present at the hearing.55 The conditions described here are applicable to all persons being questioned,56 but there are exceptions to these general rules when the person being questioned is someone who can be suspected of having committed a crime. For persons who ‘can be suspected’ of having committed a crime,57 there is a farreaching duty to remain for questioning. In this context, the degree of suspicion does not need to be so high that the person be designated as a suspect.58 A person who can be suspected of having committed a crime is under an obligation to remain available for questioning for a further six-hour period, after the initial six-hour period has expired, provided that this is of manifest importance for the investigation.59 Thus, after a maximum of 12 hours, a person suspected at this level is free to leave the police station, and may not be required to be present for questioning again until a 12-hour period has expired. If the chief investigator wishes to hold the person after this period of time, he or she must use some of the intrusive investigative measures to be discussed below, for which a higher degree of suspicion is required.

3. Formal Designation as a Suspect Given the central importance of the status of a person being charged with a criminal offence against the background of Article 6(3) ECHR, the Swedish statutory provision concerning the designation of a person as a suspect is, to say the least, cursory, and it may be questioned whether the Swedish law satisfies the requirement of the ECHR, in particular Article 6(3)(a) on the right to be informed, promptly and in detail, of the nature and cause of the accusation against him. According to 23:18I RB, the suspect shall, when he or she is questioned, be notified of the suspicion against him or her when the preliminary investigation has proceeded so far that the suspect has been identified as a person who on reasonable ground60 is suspected of having committed an offence. On a literal application of the statute, the requirement to notify the suspicion is applicable whenever, but also only, when the suspect is being questioned. Thus, if in the course of questioning someone previously not suspected of a crime, the investigator arrives at the conclusion that the person being interviewed can on reasonable ground be suspected of the crime being investigated, notice of suspicion must be given. Usually this means that the questioning must stop if the suspect has the right to a defence counsel and a counsel is not present.61 On the other other provisions in 7§ FUK not detailed here, eg the preference for a female witness when a woman is being questioned. 54

23:10III RB. 23:10VII RB. 56 See generally 23:9 10 RB. 57 On the degree of suspicion see n 18 above. 58 Formal designation as a suspect will be discussed in section B.30 below. 59 23:9I RB. 60 See n 18 on the different degrees of suspicion. Note in particular that suspicion ‘on reasonable ground’ is a higher degree of suspicion than ‘can be suspected’ of having committed a crime, the latter of which would be sufficient for questioning the person for an additional six hours, after an initial period of six hours. 61 21:3, 21:3a and 23:10IV RB. 55

Investigation Measures 753 hand, the limitation of the notification requirement to situations when the suspect is being questioned means that the prosecutor may, theoretically, avoid notifying a person of suspicion against him/her on reasonable ground by not questioning that person, and it has been known that a chief investigator would delay the notification until the preliminary investigation is near its completion. This modus operandi has been criticised as being inappropriate and in breach of Article 6(3)(a) ECHR as the suspect would—in such cases—not be informed, promptly, of the charges against him/her.62 As mentioned above, the obligation to give notice arises when the degree of suspicion reaches the level of ‘on reasonable ground’. It has been discussed whether ECHR requires that the notification be given at an earlier stage than provided for in Swedish law. This question hinges on the interpretation of what constitutes being ‘charged with a criminal offence’ according to Article 6(3) ECHR. Clearly, being ‘charged with a criminal offence’ cannot mean the act of prosecution according to Swedish domestic law. The concept has an autonomous meaning, and the Swedish Supreme Court has had an opportunity to examine at which stage of the criminal proceeding in Sweden, a person would be considered as being ‘charged’ according to the autonomous meaning of the ECHR. There is no doubt that—at the latest—a person will be considered ‘charged’ when he or she is suspected of crime on reasonable grounds. The question is whether a person may be considered as being ‘charged’ at an earlier stage. In a case concerning the appointment of a public defence counsel, the Supreme Court stated in general that a person should be treated as ‘charged with a criminal offence’ when ‘the authorities have taken some measure with the consequence that a person’s situation is substantially affected by the fact that there is a criminal suspicion against him’.63 In this particular case, the fact that a person X has been summoned to the police station for questioning as a result of a complaint that X has committed the crime of assault is not considered to be sufficient to qualify the summons to question to be treated as a criminal ‘charge’. In this case, the allegation is clear—viz assault. But the complaint alone does not give reasonable ground that person X has committed the crime, nor is the measure of summoning a person for questioning a measure that could substantially affect a person’s position. This precedent establishes that a person is not treated as a suspect— which is to say, being ‘charged with a criminal offence’ in the context of ECHR—merely because he or she can be suspected of a crime; the crucial point lies instead at the level of suspicion ‘on reasonable ground’.64

62 See Ekelöf, Edelstam, Pauli (n 2) 134–35. Against this criticism, it can be argued that the general purpose of Art 6 ECHR is to ensure a fair trial and the promptness requirement will be satisfied so long as the notification is given so that the accused, if it turns out that he or she ultimately be prosecuted, has sufficient time to prepare for his/her defence. However, the practice of not immediately giving notification of suspicion may still be criticised for breach of the freedom from self-incrimination often associated with the rights under Art 6(1) ECHR. As a person is not aware of the fact that he or she is being considered or treated as a suspect, he or she may ‘voluntarily’ come forth with evidence which would be improper for the prosecution to demand. Viewed in this perspective, there may be some justification, after all, for 23:18I RB as the risk of self-incrimination is most acute in situations where a suspect is being questioned, and 23:18I RB requires that the person, when questioned, must be put on alert that he or she is under suspicion. In this way, 23:18I RB can be understood as a safeguard against the problem of self-incrimination rather than being an expression of the right to information on the criminal charge. 63 NJA 2001 s 344. The wording of the Supreme Court’s statement is very close to that of similar statements of the ECtHR, cf for instance ‘measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect’, Corigliano v Italy App no 8304/78 (ECtHR, 10 December 1982) para 34. 64 On this point, the authors of Rättegång V are in agreement; see Ekelöf, Edelstam, Pauli (n 2) 136.

754 Sweden In this context it should also be mentioned that there is a criminal suspect register (misstankeregister) kept by the National Police Board (Rikspolisstyrelsen). This register contains records of, inter alia, persons over 15 years of age who on reasonable ground are suspected of having committed a crime falling under the Penal Code or a crime under other statutes provided that crime is punishable by a more severe sanction than fines.65

4. General Comments on Intrusive Investigative Measures As explained in section A4 above, the use of all intrusive measures must be regulated in law, more precisely by Act of Parliament. The intrusion must be justified by a legitimate purpose in a democratic society—the investigation of crimes is undoubtedly such a legitimate purpose. The most important forms of ‘intrusive investigative measures’ (straffprocessuellt tvångsmedel) are regulated within the Code of Procedure RB, while some special forms of intrusive measures are regulated in separate statutes.66 It is important to point out that such measures are investigative measures, in that they are applied for the purpose of conducting a criminal investigation—which by definition is an investigation of a crime already committed. Thus, another statutory base is needed for intrusive measures justified on other grounds, including the prevention of crime, even though there is no or little difference in the actual effect experienced by the individual concerned (eg deprivation of liberty). A prerequisite for the application of an intrusive investigative measure is that a ‘preliminary criminal investigation’ (förundersökning) has been opened (see section A.1 above).67 Some of these measures will remain applicable also during the trial and even after the trial pending judgment, or after a conviction pending enforcement of the sentence. Within RB, the detailed rules on the different types of intrusive investigative measures are found in cc 24–28. These provisions will be described briefly below together with the provisions in some special statutes. As it is impossible, given the space limitation, to go through the details concerning each measure, some general principles governing the use of intrusive investigative measures are presented. They are such principles that would apply to all measures, unless there are specific rules providing otherwise; for instance, it is obvious that the principle of notification cannot apply to clandestine measures. A group of intrusive investigative measures which are specifically directed against personal liberty (personella tvångsmedel) such as detention and remand in custody and another group of measures directly against ‘real’ objects (reella tvångsmedel) such as house search and seizure, but some measures can concern both categories, eg body search (which both intrudes into a person’s physical integrity and treats the human body as an object of examination). 65

See Criminal Suspects (Register) Act (lag om misstankeregister, 1998: 621). Some examples of statutes besides RB with special provisions on intrusive investigative measures are: Act on clandestine audio-monitoring in a closed space (lag om hemlig rumsavlyssning, 2007: 978), Act on measures to prevent particularly serious crimes (lag om åtgärder för att förhindra vissa särskilt allvarliga brott, 2007: 979), Act on measures in investigations concerning certain crimes endangering society (lag om åtgärder för att utreda vissa samhällsfarliga brott, 2008: 854) and special criminal statutes such as the Smuggling Act (smugglingslagen, 2000: 1225). 67 A decision to apply an intrusive investigative measure can be mad simultaneously with the opening of a preliminary investigation. See Lindberg (n 39) 6–11 on the requirement of preliminary investigation and some exceptions to this requirement. As mentioned in section B.10 above, a person may be required to attend a questioning session at the police station even before the opening of a preliminary investigation. This is possible only if there is an express statutory basis; and this basis is found in 23:8III RB. 66

Investigation Measures 755 In Swedish law, there are no general rules on how the authority may obtain and use information in a criminal investigation;68 so, it will be difficult to answer questions on specific measures of investigative methods such as data-mining, on-line search and use of experts etc. Many investigative measures that may be regulated specifically in other legal systems may exist also in the Swedish system, but not as a separate form of investigative measure but rather a permitted way of executing those intrusive investigative measures already found in Swedish statutes. The constitutional norm requiring that provisions on the use of intrusive investigative measures must have a statutory basis in the form of law is a manifestation of the principle of legality. Moreover, the fact that it is a public authority which carries out the investigation entails that the appropriate standard for exercise of public power must be followed. This means, inter alia, that the question of competence must be addressed, which in some cases may mean, paradoxically, that a public official will lack competence to do something that a member of the general public will be free to do. Two other—overlapping—fundamental principles govern the use of intrusive investigative measures, viz the principle of necessity (behovsprincipen) and the principle of proportionality (proportionalitetsprincipen). As recapitulated by Lindberg, according to the ‘principle of necessity’, intrusive measures should only be used if there is an evident need to apply that measure and the purpose of the measure cannot be fulfilled by any less intrusive means. This entails that a particular intrusive measure must cease to apply as soon as the purpose for employing that measure is achieved, or when the measure is no longer necessary for other reasons. The authority should consider whether a less intrusive measure can be used as well as the option of not using any intrusive measure at all. The use of measures, which exclusively or mainly are undertaken simply to lessen the authority’s obligation to perform its duties, is considered thus to be a breach of the principle of necessity.69 Much of the idea of proportionality is already contained in the necessity consideration as it is hardly likely that a measure would be proportional if it is not necessary in the sense described above. The abstract balancing of interests is in the most part already given through the conditions stipulated in law for the different types of intrusive measures. Using Lindberg’s characterisation, again, the ‘principle of proportionality’ means that the official who decides to apply a certain intrusive measure must determine in each individual case whether the nature and duration of the measure stands in reasonable proportion to the desired result. In determining what is proportional, account must be taken, inter alia, of the seriousness of the crime, the degree of suspicion against the suspect, the intrusion that the measure entails (especially on persons other than the suspect) and the duration of the measure. The intrusive measure can only be employed if the reasons for using that particular measure outweigh the intrusion and/or harm that the measure entails.70 Moreover, as the use of intrusive measures is an exercise of public power, the general principle of objectivity in public function must be observed; the principle of consideration is applicable in the sense that no one should unnecessarily be exposed to suspicion of crime or should suffer any undue inconvenience.71

68

See, eg, Lindberg (n 39) 427. See ibid 24 with further references to the travaux préparatoires and pronouncement of the Parliamentary Ombudsman (JO). 70 Lindberg (n 39) 26. 71 Ibid 31–32. 69

756 Sweden Some confusion has arisen—especially when terminologies are translated from Swedish into another language—due to a failure to observe the distinction between a decision to apply an intrusive measure and the enforcement of that decision. For instance, while it is the court which makes the decision to remand someone in custody, it is a police officer who will execute that decision, eg by arresting the person remanded in custody in absentia. In this example, the enforcement of a decision on one intrusive measure (here ‘remand in custody’) would necessitate the use of another intrusive measure (here ‘arrest’). In some cases, the decision and the execution of that decision is constituted by one and the same act, eg arresting someone. It should also be noted that while a decision may be quashed or appealed against, the enforcement of a decision is often a ‘real act’ that cannot be undone. There are also measures that have such a short duration that it is not meaningful to make appeal against such measures possible. Appeal against decisions on intrusive investigative measures in RB is permitted only when there is express provision thereon.72 In section B3 above, it was mentioned that the chief investigator may, pursuant to 23:18I RB, theoretically—and sometimes also in practice—delay notifying a person of suspicion against him/her, simply by not questioning that person. However, as the use of intrusive investigative measures would require a certain degree of suspicion, the suspect would be alerted of the suspicion against him/her, indirectly, through the application of an intrusive investigative measure. The right to be informed of the ground for the intrusive measure is related to the right to liberty and security guaranteed under Article 5 ECHR, in particular, Article 5(2) concerning the right to information. Thus, in a large number of cases—albeit not all cases—a failure to give notice of suspicion on reasonable ground is compensated by the requirement to give notice when an intrusive measure is applied. To summarise, the right to information as a consequence of a restriction to the right to liberty and security interacts with the fair-trial right (in the present author’s view, especially the freedom from self-incrimination), so that the individual’s overall integrity is maintained.73

5. Investigative Measures Involving Restriction on the Liberty of the Suspect (a) Remand in Custody (Häktning) The Swedish provisions on the conditions for deprivation of liberty of a person have a rather peculiar construction in that the prerequisites for the different measures are not defined individually for each measure. Instead, the conditions for the most intrusive measure—‘remand in custody’—are used as the paradigm case in a cascade system, ie the conditions for applying the other measures are defined by reference to ‘remand in custody’. The next most intrusive measure—‘detention’—is then seen as a provisional measure for ‘remand in custody’, ie a person may be detained with a view to his/her being remanded

72

Ibid 102. Another dimension of the distinction between ‘Art 5-type rights’ and ‘Art 6-type rights’ is that the latter type of rights pertain to the person who is him or herself under criminal investigation; whereas in case of intrusive measures, also third parties may suffer harm or inconvenience as a result of someone else’s (suspected) crime. This mean, inter alia, that there are often express provisions concerning notification when the intrusive measure in question concerns also a third party. For measures that directly affect the suspect only, express provisions on notification are often absent as they are unnecessary in virtue of the measures being immediately experienced by the suspect. 73

Investigation Measures 757 in custody. Then there are provisional measures for ‘detention’, and so on. This cascade system also functions as a scale for the consideration of necessity and proportionality in the sense that one shall examine whether a less intrusive measure within this system is more appropriate. There are four types of situation, each having a specific set of conditions leading to remand in custody: (i) standard offences, (ii) serious offences, (iii) unknown identity and non-residents, and (iv) manifest reasons. (i) Standard Offences (24:1I RB) Three parameters determine the conditions for the application of remand in custody for standard offences, viz the nature of the crime, the degree of suspicion and the risk that custody addresses. The alleged offence must be one that is punishable by imprisonment for one year or more, the degree of suspicion must have reached the level of ‘on probable cause’ (på sannolika skäl)74 and, taking all circumstances into consideration, any of the following risks exists: that the suspect may flee from justice, that the suspect may tamper with evidence or otherwise frustrate the criminal investigation and that the suspect may relapse into criminal activities. It is the court75 which, upon application by the chief investigator (prosecutor), decides whether the person should be remanded in custody after weighing all the factors for and against this measure. The person may not be remanded in custody if the expected sanction is likely to be limited to fines.76 There are statutory provisions that stipulate that remand in custody in certain cases can only be ordered if it is obvious that satisfactory supervision of the suspect cannot be arranged in another way.77 The court must—according to the statute—specify the crime of which the person is suspected and state the reasons for remanding the suspect in custody; however, in routine cases the reason given is restricted to the specification of on which risk it is that the decision is based. (ii) Serious Offences (24:1II RB) The same conditions as for (i) must be satisfied. However, if the offence is punishable by not less than two years’ imprisonment, then there is a presumption for remand in custody. Such a suspect shall then be remanded in custody unless it is obvious that there is no reason for doing so—typically, this will be a consequence of none of the risks being likely to realise. (iii) Unknown Identity and Non-residents (24:2 RB) A person who on probable cause is suspected of having committed a crime may be remanded in custody if he or she refuses to provide his/her name and address or if the details provided are likely to be false. This means that the requirement of an offence 74

See n 18 on the different degrees of suspicion. 24:5 RB. This can be seen as an expression of the principle of proportionality: for such an intrusive measure it is for the court and not the prosecutor to decide on the measure. 76 24:1IV RB. Note that it is the actual expected sanction in the particular case that is in question, not the general range of applicable sanction for the offence. 77 23:4 RB concerning, inter alia, persons of old age, suffering from illness and women who have recently given birth. 75

758 Sweden punishable by imprisonment for one year or more is dropped; but there must still be a risk, which in this situation, would be the risk of fleeing from justice. The court must, as in (i) above, perform a necessity and proportionality analysis. The same applies to a person not domiciled in Sweden and there is a risk that he or she may flee from justice. (iv) Manifest Reasons (24:3 RB) The main rule in this case is that if it is possible to remand a person in custody in accordance with (i) or (iii) above but for the fact that the degree of suspect does not reach that of ‘on probable cause’, then it is under 24:3 still possible to remand the suspect in custody if he or she is suspected of the crime ‘on reasonable ground’ and there are manifest reasons for detaining the person in custody for the purpose of the criminal investigation. This measure is known as ‘remand in custody for investigation’ (utredningshäktning). When the court decides that a person shall be remanded in custody, it shall also set out a date by which an indictment must be lodged. This time limit may be extended. If the suspect is not indicted within two weeks, the court shall conduct a hearing on the question of custody at least every two weeks, at which it shall see to it that the investigation is being carried out expeditiously. A new hearing may be held between longer intervals if it is obvious that a hearing will be meaningless under the circumstances.78 The conditions at a remand centre are regulated by a special statute.79 The court may also, upon application by the Public Prosecutor, order special restrictions while the suspect is remanded in custody.80 It can be seen as an expression of the principle of necessity that a decision to remand someone in custody must be rescinded by the court as soon as the reasons for custody are no longer present; if this occurs before the suspect is indicted, the prosecutor may also make such a decision to rescind the custody order.81 A decision of the district court to remand someone in custody can be appealed to the court of appeal, and the latter court’s decision appealed to the Supreme Court.82 However, as the district court must as the main rule review the decision on remand in custody at least every two weeks, appeals to the superior courts are of interest only in cases where the suspect has been remanded in custody for some time. (b) Detention (Anhållande) Detention is the next step down from remand in custody on the cascade of intrusive investigative measures. Pursuant to 24:6 RB, a person may be ‘detained’ (anhållen) pending the court’s examination of the question of remand in custody, if there are reasons to apply this latter measure. It is a Public Prosecutor who has the competence to make such a decision.83 This is the function of detention as a provisional measure. Detention is transitory in nature, as there is a strict time limit for lodging an application for remand in custody. This application must be made without delay and at the latest at 12 noon of the third day

78 79 80 81 82 83

For details and some special cases, see 24:18 and 24:19 RB. Remand Centre Act (häkteslag, 2010:611). 24:5a RB. Such restrictions pertain mostly to communication with the outside world. 24:20 RB. 49:5I point 6 RB and 54:4 RB. 24:6III RB.

Investigation Measures 759 after the decision to detain the person; if the detention order was issued against a suspect at large, the period for lodging an application for remand in custody runs—instead—from the day when the order is executed (ie when the suspect is arrested).84 The court must without delay hold a hearing on the question of remand in custody and at the latest no more than four days after the suspect is arrested or the detention order executed.85 Besides being a provisional measure pending remand in custody, detention may also be used as an independent investigative measure. When suspicion has not reached the level of ‘on probable cause’, detention cannot be used as a provisional measure for remand in custody, as there will not be reason to remand the person in custody for lack of sufficient strength of suspicion. 24:6II RB provides, therefore, the possibility to detain someone ‘on reasonable ground’, if there are manifest reasons for detaining that person for the purpose of the criminal investigation. Even in this case, the time limit for lodging an application for remand in custody must be observed. (c) Arrest (Gripande) There are three forms of arrest. 23:7 RB describes the form which is a provisional measure pending a decision to detain someone. The statute provides thus, that a police officer may in urgent cases—even without a detention order—arrest a person, provided that there are reasons for detaining that person. Arrest can also be an enforcement measure for a detention order or order for remand in custody that has been issued against someone at large. The third form of arrest is that of the ‘citizen’s arrest’ (envarsgripande). According to 24:7II RB, not only officials, but anyone at all, may arrest a person caught in flagrante for a crime punishable by imprisonment, or a criminal suspect wanted by the police. The Public Prosecutor shall be informed after the arrest and decide whether the arrested person shall be detained. (d) Travel Restriction (Reseförbud) and Reporting Order (Anmälningsskyldighet) ‘Travel restriction’ and ‘reporting order’ can be used either as an independent intrusive investigative measure, or as a substitute in lieu of a more intrusive measure. According to 25:1 RB, if a person is ‘on reasonable ground’ suspected of a crime punishable by imprisonment, and—having regard to the nature of the crime, circumstances related to the suspect or other circumstances—there is a risk that the suspect may flee from justice, but there is otherwise no sufficient reason to detain that suspect or to remand him or her in custody, then he or she may be subjected to travel restriction or a reporting order, if this is sufficient against the risk of absconding. ‘Travel restriction’ is a prohibition against leaving a certain area without permission; and a ‘reporting order’ is an order to report to a specified police authority at specified times. The requirement that the crime is punishable by imprisonment is lifted if there is a risk that the suspect may flee from justice by leaving the country. If there are per se reasons for detention or remand in custody of a suspect, but travel restriction or reporting order will constitute adequate safeguard, such measure

84 85

24:11–12 RB. The detained person is free to go if an application for remand in custody is not made then. 24:13 RB.

760 Sweden may be taken. Decisions on travel restriction and reporting order can be made both by a Public Prosecutor and by the court.

6. Other Intrusive Investigative Measures (a) Sequestration of Assets According to 26:1 RB the court may order the sequestration (kvarstad) of so much of a suspect’s assets as would cover his or her liability to pay to the appropriate recipient/beneficiary fines, the value of confiscated property, corporate fines, damages in tort and other compensations etc as a result of a criminal conviction. This measure is applicable with respect to a person who on reasonable ground is suspected of having committed a crime, provided that it is reasonable to assume that there is a risk of the suspect seeking—through concealment of his or her assets or otherwise—to avoid fulfilment of his or her liability. This measure is quite different from the other intrusive investigative measures, in that its purpose is purely pecuniary in character. It is a security measure that seeks to ensure that the suspect is upon conviction able to meet his or her debt to the state or individuals entitled to compensation; it does not affect specific items of property. This measure cannot be used to obtain evidence. (b) Seizure of Objects One of the most frequently used intrusive investigative measures is the seizure of objects (beslag). As outlined in 27:1 RB, there are four situations in which seizure can be used as an intrusive measure, of which only one has an explicitly investigative purpose. These situation are (i) when the seized object is of value to the criminal investigation, especially when it is likely that the object will be used as evidence at trial, (ii) when it is a matter of restitution of the property to its rightful owner, (iii) for the purpose of securing a physical object that can be confiscated upon conviction, and (iv) to secure objects that may be of use in an investigation into the confiscation of proceedings of crimes. The subject of a seizure order is a ‘physical item’ or ‘object’ (föremål), which will be the term used here. Thus it is not possible to seize a debt, a balance in a bank account or immaterial property in general. Pursuant to 27:1II RB, however, written documents in their physical form are included under the concept of ‘object’; the information per se contained in the documents, on the other hand, cannot be the subject of seizure. (More will be said below on the treatment of written documents.) Obviously, there cannot be any requirement that the seized object should belong to, or be in the possession of, the suspect, as stolen goods constitute a large part of all objects being seized. In general, seizure can be executed in relation to anyone in possession of the item, which means that this measure may often affect ‘third parties’ (in the present context meaning persons other than the suspect and the aggrieved person). There is, however, a requirement that the object be accessible.86 This means that a seizure order would not automatically also give the right to carry out searches in order to

86 27:5I RB, which is applicable also in relation to a prosecutor and police officer. ‘Accessible’ may be compared to the requirement of being ‘in plain sight’ in some legal systems.

Investigation Measures 761 obtain the object; for this, other forms of intrusive measures are needed, eg a search warrant. Seizure is, however, also possible with regard to an object found in the course of executing another intrusive measure.87 A prerequisite for a seizure order is that there is reasonable ground to believe88 that the seized object can be linked to one of the four situations justifying seizure as described above. Unlike the case with many other intrusive measures that require an underlying offence of a certain severity (eg one that is punishable by imprisonment), there is, for seizure, no such general requirement. A seizure order is issued by the court upon application of the chief investigator or prosecutor. After the prosecutor has lodged an indictment, the aggrieved party may also apply for a seizure order and the court may also take up the matter proprio motu.89 It is not necessary here to discuss the details concerning hearings concerning seizure orders; it suffices to note that the court is obliged continuously to review its decision on seizure and to quash the order and to return the seized items as soon as the seizure is no longer motivated. As mentioned above, written documents can be the subject of a seizure order. The term ‘written document’, however, covers a larger area than is suggested by its literal meaning. ‘Written documents’ include, in this context, also media such as CD or DVD discs, and many other forms of computer accessories—a mobile telephone which contains SMS messages within it90 may therefore be seized, and the rules on written documents will then apply with respect to the SMS messages. In general, digital material is treated as written document if it can be rendered into a readable form.91 However, the above rules on seizure of written documents are subject to the express exception that documents may not be seized if there is reason to believe that they could contain privileged information such as confidential communications between a defence counsel and his or her client. The same applies with regard to communication between a suspect and his relatives or other closely related persons, unless the criminal investigation concerns an offence punishable by a minimum of two years’ imprisonment.92 Furthermore, there are restrictions as to who is authorised to examine the content of written documents that can be seized. For instance, postal and telegraphic communications, business accounts, other private documents that have been seized may only be examined by the chief investigator or prosecutor; and letters and other sealed documents can only be opened by the chief investigator, a prosecutor or the court.93 In other cases, the authorities may to a fairly large extent make use of all content that is ‘accessible’ from the seized objects even though, as mentioned above, information per se cannot be the subject of a seizure order.94 There are no general rules governing how 87

Cf 27:4 RB. For seizure, then, the prerequisite is not related to the degree of suspicion with respect to a suspect. The requirement is, rather, that there should be a link between the seized object and the goal of the seizure. 89 23:5 RB. 90 From a proportionality point of view, it can be discussed whether the whole telephone can be seized or just the SIM-card or the memory card, if the messages are stored in the cards. 91 See NJA 1998 s 829; Lindberg (n 39) 390–91. 92 See 27:2 RB for more on the categories of persons affected and further conditions on the applicability of the exception. 93 27:12 RB. 94 See NJA 1998 s 829 (cited in n 91 above) concerning data stored in a computer which are not sorted and not readily accessible in a readable form. 88

762 Sweden information is obtained and used during a criminal investigation, nor are there general rules that give guidance on whether the authority may photograph, copy or employ other technical means in order to get at or retain the information found in a seized object.95 It is a common practice that documents are photocopied, information from digital media is copied or stored and an exact mirror of a computer’s hard-disc may also be made if needed. One odd consequence of this is that while the original object seized must be returned if the seizure order is quashed, the copies etc do not constitute seized property, and the authorities are not obliged to return or destroy them. There is no clear rule on the treatment of copies of seized objects; although several proposals have been made, these have not led to legislation.96 (c) Interception of Objects (Including Letters) Upon application by the chief investigator or prosecutor, the court may issue an order that a letter, parcel or consignment that arrives at a delivery service (eg the post office or private expeditors) shall be intercepted and held there, pending a decision on the seizure of that item. A prerequisite for the interception order is that the item to be intercepted must be capable of being subject to a seizure order.97 Thus the provision on interception can only be applied to ‘objects’ in the sense applicable for seizures. The interception order is issued for a specified period and is valid for a maximum of one month from the day that the order is served upon the delivery service. The order shall contain the instruction that the delivery service must not inform the sender, recipient or any other person of the interception order without the permission of the chief investigator or a prosecutor.98 When the item has arrived and is held at the delivery service, the service must immediately notify the person who requested the order, who must then make a decision on seizure without delay.99 (d) Access to Relevant Premises (‘Crime Scene’) Pursuant to 27:15 RB, a room or a building may be closed, and access to a certain area may be prohibited in order to facilitate the investigation of crime. There is no requirement that the crime under investigation has a certain degree of severity. The restriction may cover premises other than the ‘crime scene’, so long as the measure facilitates the investigation. Orders may also be made pursuant to this provision to forbid the removal or transfer of physical objects and similar acts. Any person who is competent to issue or execute a seizure order (see section B.6(b) above) is also competent to issue or execute an order to restrict access. The usual principles of necessity and proportionality apply when deciding whether to issue a restriction at all and the extent and duration of the restriction.

95 96 97 98 99

See Lindberg (n 39) 427. Ibid 432. 27:9I RB. 27:9II RB. 27:9III RB.

Investigation Measures 763 (e) Searches Searches can be divided into three different categories: ‘house search’ (husrannsakan), ‘frisk search’ (kroppsvisitation’) and ‘body search’ (kroppsbesiktning). The rules governing house searches are rather complicated as they differ according to where the search is to take place, for what reasons the search will be undertaken, and whether it is a person or an object that is the subject of the search. It should also be noted that a house search has the function of merely finding a person or an object, so there is often a need to combine a house search with further measures such as seizure, if the authority intends to take into custody or otherwise process the result of the search. In general, a search of a house belonging to a suspect can be ordered if there is reason to believe that a crime has been committed that is punishable by imprisonment. The search is to take place in the suspect’s house, rooms or closed storage spaces and must pertain to one of the following purposes: (i) to search for objects that can be subject to seizure, or (ii) to ascertain circumstances that may have a significance for the criminal investigation or an investigation on the confiscation of proceeds of crime.100 If the search is to take place at locations belonging to someone other than the suspect, one of the following additional conditions must be satisfied: (iii) the crime was committed at that location, (iv) the suspect was apprehended there, or (v) there is otherwise particularly strong reasons to believe that the search will lead to objects that can be subject to seizure or be of use for the purposes described in (ii) above.101 If the purpose of the search is to find a person who shall be arrested, detained, remanded in custody, escorted to questioning or appearance at a court, or to be taken to a undergo a body search or body cavity search, then a house search can be executed at that person’s home, or, at someone else’s home if there is particularly strong reason to believe that he or she can be found there.102 In order to find a suspect who shall be arrested, detained or remanded in custody for a crime—or attempt thereto—punishable by at least four years of imprisonment, searches may also be carried out in means of transportation in a certain place, if there are special reasons to believe the person will pass through that place.103 There are also some provisions that need not be described here permitting house searches in public places and at locations used by criminal groups and on searches for the purpose of serving certain legal documents.104 Decisions on house searches are made by the chief investigator, a prosecutor or the court.105 In case of urgency, a police officer may also carry a house search without prior instruction from the chief investigator, a prosecutor or the court.106 In Swedish law, a ‘frisk search’ is defined as an examination of the clothes and other items that a person is wearing, as well as bags, packages and other objects that the person is carrying. A basic prerequisite for this measure is a reasonable belief that a crime punishable 100

28:1I RB. 28:1II RB. 102 28:2 RB. 103 28:2a RB. (This provision was added after the murder of former prime minister Olof Palme.) The expression ‘means of transportation in a certain place’ is capable of being interpreted extensively, eg road blocks on motorways, sealing off large part of the underground system or airport, and control of luggage space of passing motor vehicles. See Lindberg (n 39) 596–97. 104 28:3 and 23:4 RB. 105 28:4 RB. 106 28:5 RB. 101

764 Sweden by imprisonment has been committed.107 Moreover, if the search is performed on someone who on reasonable ground is suspected of the crime, the purpose of the search must be to find an object that can be seized, or to ascertain other circumstances that can be of value for the criminal investigation or an investigation on confiscation of proceeds of crime.108 Searches can also be performed on someone who is not suspected on reasonable ground of committing the crime, but in that case, there must exist a particularly strong reason to assume that the search would reveal items that can be seized or otherwise is valuable for the purpose of ascertaining other circumstances that can be of significance to the criminal investigation or an investigation with a view to confiscation of proceeds of crime.109 A ‘body search’ is much more intrusive than a frisk search and is defined as an examination of a human body’s surface and cavities as well as the taking of samples from the body and examination of such samples.110 This measure can only be undertaken on a person, who on reasonable ground is suspected of a crime punishable by imprisonment.111 (f) Freezing Sweden has implemented Council framework decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence through the Act on recognition and enforcement of freezing orders within the EU (lag om erkännande och verkställighet inom Europeiska unionen av frysningsbeslut, 2005: 500) and an accompanying government ordinance (2005: 501). However, this Act only lays down additional rules on sequestration and seizure orders with respect to other Member States of the EU; the domestic provisions on sequestration (section B6(a) above) and seizure (section B6(b) above) are still valid with regard to the actual application of these measures. (g) Production Orders The obligation to exhibit/disclose documents (editionsplikt) in a legal proceeding is regulated in C 38 RB, and the provisions there are formally applicable in both civil and criminal proceedings. However, in criminal proceedings, the right not to be subject to selfincrimination means that a suspect or an accused may never be obliged to produce any documents at all. It is theoretically possible to order a third party to disclose documents pertaining to the criminal investigation. However, as search and seizure are two much more powerful measures available in the course of a preliminary criminal investigation, production orders are not very practical in criminal proceedings.112

107 It may seem, at first sight, that this rather common measure should require a crime punishable by imprisonment. However, it may be noted that many minor offences can lead, in abstracto, to imprisonment, so that frisk searches are possible for such offences, eg searches for stolen items in ‘petty theft’ (snatteri, 8:2 CC) even if the value of the goods is less than 1000 SEK (ca 110 EUR), or searches for spray cans for ‘criminal damage’ (skadegörelse, 12:1 CC) through painting graffiti. 108 28:11I RB. 109 28:11II RB. 110 The taking of saliva falls under the notion of ‘taking samples from the body’ and is regulated in 28:12a and 28:12b RB. The taking of photographs and fingerprints is regulated in 28:14 RB. 111 28:12 RB. For exceptions with respect to saliva samples, see 28:12a and 28:12b RB. 112 See Ekelöf, Edelstam, Pauli (n 2) 260.

Investigation Measures 765 (h) Clandestine Surveillance RB contains provisions on three types of clandestine surveillance: clandestine monitoring of telephone conversation or ‘wiretapping’113 (hemlig teleavlyssning),114 clandestine monitoring and control of telephone communication (hemlig teleövervakning), and clandestine video surveillance (hemlig kameraövervakning). Clandestine monitoring of telephone conversations means that calls that are being or have been connected to or from a certain telephone number, a code or another destination (known collectively as ‘tele-address’) are listened to or recorded clandestinely in order to obtain the content of the conversation. Both incoming and outgoing calls are subject to this measure.115 Clandestine monitoring and control of telephone communication means that information on calls that are being or have been connected to and from a certain tele-address are collected without the knowledge of the callers as well as the manipulation of traffic so that calls to or from a certain telephone number etc are prevented from being connected to the number.116 For both measures, a prerequisite is that someone is suspected on reasonable ground of having committed a crime, and that the measure carries pressing weight for the investigation. Strictly speaking, the monitoring does not need to be restricted to conversations in which the suspect participates; it suffices that the conversation to a certain tele-address is particularly valuable to the investigation. These measures are, moreover, not restricted to a tele-address belonging to the suspect (eg the suspect’s own telephone), but are applicable to any tele-address, including (but not only) any tele-address that the suspect may call to and from. However, the statute stipulates further conditions so that there must be some close connections between the suspect and the tele-address being monitored.117 Naturally, the fundamental principles of necessity and proportionality are applicable. The subject of both forms of monitoring is a tele-address, not a particular person. Besides the above general prerequisites there are de minimis rules as to the severity of the offence being investigated. Clandestine monitoring and control of telephone traffic is applicable only to offences punishable by imprisonment of at least six months, certain specified crimes as well as—where criminalised—attempt, preparation or conspiracy to commit such crimes.118 For the more intrusive measure of clandestine monitoring of telephone conversations, the threshold is set to offences punishable (in abstracto) by imprisonment of two years and—where criminalised—attempt, preparation and conspiracy to commit such crimes, or other crimes for which the sentence in concreto is expected to exceed two years’ imprisonment.119

113

Of course, the measure is equally applicable to mobile telephone conversation. Note that this is concerned with monitory of telephone conversation, to be distinguished from monitoring using concealed devices pursuant to the Act on clandestine audio-monitoring in a closed space (lag om hemlig rumsavlyssning, 2007: 978) mentioned in n 66 above, which is applicable to specified locations and not telephone conversations. 115 27:18I RB. 116 27:19I RB. 117 See 27:20I RB for the further conditions as well as general prerequisites for the application of both measures discussed here. 118 27:19II RB. The specified crimes according to this provision are ‘unlawful access to computer system’ (dataintrång, 4:9c CC), ‘child pornography crime’ that is not considered to be ‘petty’ (barnpornografibrott, 16:10a CC), ‘smuggling of narcotics’ (narkotikasmuggling, s 6 para 1 of Smuggling Act, lag om straff för smuggling, 2000:1225). 119 27:18 RB. 114

766 Sweden The third measure regulated in c 27 RB is clandestine video surveillance. This means that a remotely controlled TV-camera, other optic-electronic instrument or other comparable equipment are used visually to monitor a person in the course of a preliminary investigation. This means that only visual images are permitted; for audio monitoring the provisions according to a special statute120 are applicable. In principle, video surveillance can only be used to monitor a place where a certain person is present who is suspected on reasonable ground of a crime punishable in abstracto by a minimum of two years’ imprisonment and—where criminalised—attempt, preparation and conspiracy to commit such crimes, as well as crimes that are likely in concreto to lead to at least two years’ imprisonment.121 However, in some cases, there may not be a specific person who is under suspicion on reasonable grounds, yet it is of particular importance to establish the identity of suspects and therefore to use video surveillance. There is thus an exception to the main principle above. According to 27:20c RB, even if no one is suspected of the crime on reasonable ground, video surveillance may nonetheless be carried out over the crime scene and its surroundings. The subject of video surveillance is in all cases a certain specified location and not a person. Common to all forms of clandestine measures regulated under c 27 RB is that the order must be made by a court upon application of the chief investigator or a prosecutor. The principles of necessity and proportionality must be adhered to strictly, which means, inter alia, that the measure must be discontinued as soon as it is no longer justified. Due to the clandestine nature of these measures, their subject cannot, naturally, be informed of them while they are being monitored. To safeguard the interests of individuals at a court hearing concerning clandestine measures, there are ‘public representatives’ (offentliga ombud), who are persons qualified to act as defence counsels or former tenured judges and appointed by the government for three years at a time. The public representatives have the right to obtain information on the case, to express their point of view and to appeal against the court’s decision.122 After the event, the persons affected have a right to be informed of the clandestine measures. The person who is—or has been—suspected of the crime shall be informed of the measure(s) that he or she has been subject to. For the monitoring of a tele-address not belonging to the suspect, the owner of the tele-address shall also be informed. If video surveillance has been executed in a private location not belonging to the suspect, the owner of that location must also be informed. This information must be given to those concerned as soon as this will not jeopardise the investigation, but at the latest one month after the termination of the clandestine measures.

120 Act on clandestine audio-monitoring in a closed space (lag om hemlig rumsavlyssning, 2007: 978), which is a ‘provisional’ statute in the sense that its validity is restricted in time and the Parliament must periodically pass a new statute to extend the validity of the Act. The present Act is valid until 31 December 2012 by virtue of a statute (2010:406) passed by Parliament in 2010. This measure is applicable only to offences punishable in abstracto by imprisonment of at least four years or other crimes that in concreto are expected to result in a sentence of imprisonment for at least four years upon conviction. 121 27:20a and 27:20bII RB. 122 27:26–27 RB.

Investigation Measures 767 (i) Infiltration There are no express statutory rules in Sweden on ‘infiltration’ and this measure is often discussed in the larger context of provocation. When determining whether a measure is acceptable, the case law of the ECtHR plays therefore an important role. In Swedish academic writings and case law, a distinction between provocation of evidence and incitement of crime is recognised.123 It is generally accepted that subterfuge may be employed so as to obtain evidence of a crime already committed, but it is not permissible to induce someone to committing a crime that he or she would not otherwise have committed. The Prosecution Authority has published its own interpretation of the law on provocative measures,124 which serves as guidance for prosecutors contemplating such measures. In principle, a provocative measure may only be taken after a decision by a Public Prosecutor. With regard to infiltration, it is suggested that private individuals may be used as infiltrators only under exceptional circumstances. There are special provisions regarding foreign undercover officials who perform their duties in Sweden with a protected identity.125 There remains the problem of how evidence obtained through an improper measure should be treated. This issue will be discussed in section D below. (j) Controlled Deliveries There are no express rules in Swedish law on controlled deliveries that take place exclusively on Swedish territories. The point of departure is that the police have a general duty to prevent crime and to react when a crime is committed.126 In principle, then, a police officer can never decide not to take appropriate measures as a reaction to crime for reasons of expediency of investigation. However, an appropriate response may consist in the reporting of the crime—or suspicion of a crime—to a superior police officer or a prosecutor. The general duty to react cannot possibly be interpreted as a duty immediately to take action as soon as there is reason to believe that a crime has been, is being or will be committed.127 In practice, the decision that the police should not interfere with a suspected transport is made by a Public Prosecutor. With regard to controlled deliveries with an international dimension, special provisions are found in the Act on certain forms of international cooperation in criminal investigations.128 This statute has been enacted to fulfil Sweden’s obligation under, inter alia, the Council framework decision 2002/465/JHA of 13 June 2002 on joint investigation teams and the convention of 29 May 2000 between the Member States of the EU on mutual legal assistance in criminal matters. An application from a foreign authority for controlled delivery in Sweden is handled by a Public Prosecutor, while a request from Sweden for

123

See, eg, P Asp, Straffansvar vid brottsprovokation (Stockholm, Norstedts, 2001). Provokativa åtgärder, Rätts PM 2007:4 (updated March 2008). 125 ss 15–17, Act on certain forms of international cooperation in criminal investigations (lag om vissa former av internationellt samarbete i brottsutredningar, 2003:1174). 126 Police Act, s 2 (polislag, 1984:387). See Act on general principles governing police measures, s 8. 127 See the commentary to s 8 of the Police Act in N-O Berggren, J Munck, Polislagen: En kommentar, available at http://zeteo.nj.se. 128 Lag om vissa former av internationellt samarbete i brottsutredningar, 2003: 1174. 124

768 Sweden controlled delivery abroad is made by a Public Prosecutor, or by the police, the customs authority or the coast guards, if permission is given by the prosecutor.

C. PROSECUTION MEASURES

1. Opening of Investigation and Prosecution The various stages of the criminal proceeding have already been described in section A1 above. It suffices here to recapitulate that the prosecution is formally brought by the act of the Public Prosecutor lodging an indictment at the court.129 As described in section A2 above, it is always the Public Prosecutor who makes the decision on prosecution, while both the police authority and a Public Prosecutor have the power to open a preliminary criminal investigation.

2. Unilateral Disposal of the Case Where there is sufficient ground for prosecution, the Public Prosecutor is in principle obliged—in accordance with the principle of legality—to prosecute. On the other hand, if, at the end of a preliminary investigation, there is insufficient evidence for prosecution, the prosecutor must decide either to make a ‘negative decision on prosecution’ (negativt åtalsbeslut) or to ‘close the preliminary investigation’ (att lägga ned förundersökningen, also known as förundersökningsbegränsning). It is difficult to draw the line between these two types of decision. According to 23:4II RB, a preliminary investigation shall be closed if there is ‘no longer any reason for pursuing the investigation’, and 23:4a RB provides furthermore that the preliminary investigation may be closed if continued investigation of the case would require such costs that it would be disproportionate having regard to a number of factors specified in the statute, or, if the case may be disposed of in some other way. Thus, given this structure of the legislation, a ‘decision to close the preliminary investigation’ shall be made if the decision can be justified by 23:4II or 23:4a RB. In other cases, the prosecutor shall make a ‘negative decision on prosecution’. Given that the prosecutor has sufficient evidence to prosecute, the case may be disposed of by a ‘decision to drop charges’ (åtalsunderlåtelse). If a person may be prosecuted for a number of crimes, the prosecutor may decide to drop some of the charges, while proceeding to prosecute on the other charges. As opposed to a ‘negative decision on prosecution’ where there is insufficient evidence to bring prosecution, a ‘decision to drop charges’ presupposes that the prosecutor could, instead, have chosen to prosecute,130 which means that it would be a serious mistake if a prosecutor were to decide to drop the charges, rather than issuing a ‘negative decision on prosecution’, when there is not enough evidence for prosecution. The conditions for dropping charges are given in 20:7 RB. A basic requirement is that a decision to drop charges must not mean that either a public or private interest will be

129

45:1I RB. Although the rules on dropping of charges do not presuppose a confession or consent of the suspect, in practice, a confession is considered prima facie to be such strong evidence that it would justify the prosecutor’s expectation of a conviction if the case were to proceed to trial. 130

Prosecution Measures 769 disregarded. Furthermore, one of the conditions enumerated in 20:7 RB must normally be fulfilled: (i) it can be expected that the crime would not lead to a more serious sanction than fines (böter); (ii) if it can be expected that the crime would lead to a suspended sentence (villkorlig dom), there are special reasons for dropping the charges; (iii) if the suspect has committed other crimes, there is no need to prosecute the crimes for which the charges are to be dropped, since the inclusion of these charges would not affect the total sanction given that the suspect is prosecuted for the other crimes;131 and (iv) if it is expected that the person will receive psychiatric care, or care according to the Act on support and service to persons with disability.132 In exceptional cases, charges may be dropped even if none of the conditions in (i) to (iv) above is satisfied; 20:7II RB provides that charges may nonetheless be dropped if, due to special reasons, it is clear that a penal sanction is not necessary to deter the suspect from further crimes and there are no other reasons to bring prosecution when all circumstances are taken into account. The decision to drop charges instead of prosecution is a favourable decision and it is not possible to appeal against such a decision. However, as a basic condition for dropping the charges is that no public or private interest is being disregarded, the suspect’s interest should also be taken into account, so that a decision to drop charges will not be made against the wishes of the suspect. In this connection, it should be noted that a decision to drop charges will be entered into the person’s criminal record;133 there are therefore good reasons why a suspect might challenge a decision to drop charges. An aggrieved party may also object to the charges being dropped. Although the prosecutor must take into account private interests, including the interests of the aggrieved party, a decision to drop charges may still be made despite the objection of the aggrieved party. In this case, the aggrieved will have a subsidiary right to bring a private prosecution, which can be seen as a remedy against the prosecutor’s decision to drop charges.134

3. Multilateral Disposal of the Case Whereas the decision to drop charges discussed in section C2 above is—at least formally—a unilateral decision of the Public Prosecutor, some alternative means of disposing a case are subject to the consent of the suspect. In accordance with provisions in c 48 RB, a case may be disposed of through a ‘penal order’ (strafföreläggande) issued by a Public Prosecutor, or through a ‘summary fine order’ (föreläggande av ordningsbot) issued by a police officer. In both cases, the order can be seen as a proposal from the side of the authorities, which the suspect may accept or reject.135 If the suspect accepts the proposal, no prosecution will be made and the order will have the same status as the judgment in a criminal proceeding which has acquired finality.136 Both a penal order and a summary fine will become part

131 Under Swedish law regarding sentencing, a common sanction is given for all crimes for which an accused is convicted. In calculating the common sanction, the effect of addition charges will level off after a certain point, so that further convictions will not affect the total sanction imposed. 132 Lag om stöd och service till vissa funktionshindrade, 1993: 387. 133 s 3, no 4 of the Criminal Register Act (lag om belastningsregister, 1998: 620). 134 20:8 RB. See also commentary to this section in Fitger (n 39). The subsidiary right to bring private prosecution is also applicable when the prosecutor makes a ‘negative decision on prosecution’. 135 There is, however, no possibility to modify or negotiate the terms of the order. 136 48:3II RB.

770 Sweden of the criminal records of the person subject to the order.137 If the orders are not accepted by the suspect, the criminal process will proceed in the normal way and the crimes will be prosecuted if conditions for this are fulfilled. A penal order may be issued by a Public Prosecutor for offences punishable by fines. The penal order will specify the amount of the fine and the crime for which the fine has been imposed. A penal order may also impose a suspended sentence (villkorlig dom), or a suspended sentence in conjunction with a fine, if it is clear that the court will impose such a sanction upon conviction. An acceptance of the penal order means that the suspect admits to having perpetrated the crime and accepts the penalty imposed; a penal order is also deemed to be accepted—where only money payment is imposed—if the suspect has paid the fine in full within the time limit specified in the penal order.138 A summary fine order may be issued by a police officer for an offence punishable by a fixed fine, ie for minor criminal offences that in many other legal systems would be treated as administrative breaches (eg traffic offence, littering and public nuisance). Such orders are usually issued and accepted on the spot, but the suspect is also given the possibility to consider his or her position and to accept or reject the order at a later date. In some circumstances the summary fine order is issued by a Public Prosecutor, or an officer within the customs authority or the coast guard.139 Other than the above-mentioned orders, Swedish law does not recognise other forms of multilateral disposals. Admittedly, there exists the practice of mediation under the auspices of state or municipal authorities;140 mediations take place entirely outside of the criminal process. From time to time it has been discussed whether the prosecutor and the suspect may come to some form of agreement to reduce the material to be dealt with at a trial, especially in complicated cases involving economic and organised crimes. This discussion has not led to any legislation, and the general reaction to a ‘negotiated’ justice—such as plea bargaining—has been negative.141

4. Committal to Trial As explained in section A1 above, the crucial point where the criminal proceeding changes its character is when the prosecutor lodges an indictment with the court. From this point onwards, it is no longer the prosecutor/chief investigator who is in charge of the proceeding, but the court, and the prosecutor and the accused are equal parties at this stage. There is no additional proceeding after the indictment—eg a committal hearing—in which the accused is committed to trial. As already pointed out, formal prosecution is brought at a relatively late stage of the proceeding; this is because most of the preparatory work for trial will have been carried out already during the preliminary investigation, so that the work that remains to be done after the indictment largely is of an administrative character, like 137

See n 133. Provisions on penal orders are found in 48:1–3 and 48:4–12a RB. Provisions on penal orders are found in 48:1–3 and 48:13–20 RB. 140 See the Act on mediation on the ground of crime (lag om medling med anledning av brott, 2002: 445). 141 See, for instance, the anthology published by the Prosecution Authority, Effektivare hantering av stora och komplicerade brottmål en idéskrift (December 2006) and the report of the commission on limitation of preliminary criminal investigation SOU 2010:43 Förundersökningsbegränsning. 138 139

Evidence 771 setting a date and arranging for the appearance of witnesses. The court will in most cases simply issue the indictment and summon the accused to a main hearing. The accused does not need to submit replies to the charges, and in many simple cases will not need to contact the court before the main hearing. However, preparatory meetings with the parties will be held in complicated cases, or where this will facilitate the main hearing.

D. EVIDENCE

The fundamental principle governing the law of evidence is free admission and free evaluation of evidence.142 By free admission it is meant that there is no general restriction on what is admissible as evidence, which means that in theory even illegally obtained evidence may be admitted in court. By free evaluation it is meant that it is for the judge to determine what value should be given to each piece of evidence; there are no rules that designate a certain value to a particular type of evidence. Thus, a confession will be given the evidential value that it ought to have after an investigation of all the circumstances, and not be regarded as conclusive evidence that someone has committed a crime. These principles are expressed in the statutes—under 35:1I RB—in the following terms: The court shall, after a conscientious examination of everything that has been adduced as evidence, decide what has been proved in the case.

The notion of ‘conscientious examination’ is the same as that of ‘conviction intime’ in most civil law system. Having stated these general principles, it must be said that there are some special rules concerning the presentation of different types of evidence; most of the special rules can be explained by reference to the general principles governing Swedish procedural law (such as the principles of orality and immediacy) or to rights guaranteed by the ECHR. An example of such special rules is provided by the provisions on written evidence. The principle of orality entails that evidence should be taken up orally at the main hearing; this is done through questioning of the accused, the aggrieved persons and witnesses, and through oral pleading by the prosecution and the defence at the end of the main hearing. This means that there is in practice a prohibition on the recitation or reading of a prepared speech/statement or other written document, as such reading will defeat the purpose of having an oral session.143 The principle of immediacy entails inter alia that the court—at least in questions of fact—can only base its finding on the evidence presented at the main hearing. Written records of interviews undertaken during the preliminary investigation are thus excluded from the evidence. If a party wishes to rely on such evidence, then the person who made the statement must be questioned again at the main hearing. This is a situation in which the principle of free admission of evidence is being overridden by the principle of immediacy and the principle of orality as the latter principles are considered to provide the best available evidence for the judges’ free evaluation. Written evidence is, however, not excluded altogether. 35:14 RB provides that records, for instance, of an interview during a preliminary investigation may be used as evidence at the main hearing in certain cases, eg if

142 For a general presentation of the law of evidence see Ekelöf, Edelstam, Pauli (n 2) para 23; introductory remarks to chapter 35 RB in Fitger (n 39). 143 See 46:5 RB and Ekelöf, Edelstam, Pauli (n 2) 14.

772 Sweden the person cannot be heard at the main hearing. Moreover, the requirement of orality may arguably be fulfilled by orally making a reference to a written document. There is in fact an express provision in 46:6IV RB that permits references to written documents during a main hearing, provided that the court considers it appropriate. This practice has been criticised on the grounds that it may mean that it would be more difficult for the judges to form an overall picture of all the evidence.144 The practice may also be criticised on the basis that references to written material to which only the parties and the court have access frustrates the principle of public trial, the point of a public trial being to allow the public present at the hearing to assess for themselves on what evidence the judges’ conclusions are based. It may be noted in this connection that the terminology in Swedish law may cause some confusion. When the term ‘written evidence’ (skriftligt bevis) is used, one refers to the content of a written document, and not the document itself.145 Thus, a photograph cannot be written evidence in this sense, since it normally does not have a written content—unless, of course, it is a photograph of a written document. Neither would a written document be written evidence if the document is used, for instance, to establish whether a signature on it is genuine or not, or whether a fingerprint can be traced; the use of the written document for such purposes is governed by rules on ‘inspection’ (syn) in c 39 RB—in much the same way as relating to the inspection of objects like knives or weapons—and not the rules on written evidence in c 38 RB. It is said above that, theoretically, even illegally obtained evidence can be put forward at trial, as a consequence of the principle of free admission of evidence, and there is no rule in the Swedish statutes that explicitly prohibits such evidence. In many cases, there is no practical problem, as the probative value of illegally obtained evidence is in many cases, objectively speaking, so low (eg information obtained following misleading questions by the police) that its admission would not have any effect on the case. However, there are certainly cases where the probative value of the evidence is very high (eg a video of a crime being committed, recorded in the course of an unauthorised clandestine surveillance) if one focuses solely on the evidence’s objective probative value. In such cases, the court cannot ignore the fact that very good evidence of the crime in fact exists. At the same time, the use of such evidence may constitute a clear violation of the accused’s rights under the ECHR. The courts have over the years adopted different methods to deal with the effect of illegally obtained evidence, and the Supreme Court has given a ruling that represents the current status of Swedish law on this subject.146 The Court considered different methods to remedy the situation and ruled out, inter alia, the option of excluding the illegally obtained evidence, as it would be difficult to foresee what consequences this might have against a system based on the fundamental principle of free admission of evidence. In the end, the Supreme Court arrived at the position that the violation of a fundamental right guaranteed by the ECHR requires—despite the fact that there is no direct support for this solution

144

Ekelöf, Edelstam, Pauli (n 2) 15. See Ekelöf, Edelstam, Pauli (n 2) 256. 146 NJA 2007 s 124. This case concerns the theft of paintings by Renoir and Rembrandt from the National Museum in Stockholm and the legal question at issue pertains to provocation of crime by the police, and is therefore based on the right to a fair trial according to Art 6 ECHR. However, the principle established by the Supreme Court can be applied to other situations involving illegally obtained evidence, if it can be argued that a violation of other Convention rights, too, eg the right to privacy according to Art 8 would ‘irremediably undermine the fairness of the trial’. On the expression ‘irremediably …’ see eg Vanyan v Russia App no 53203/99 (ECtHR 15 December 2005) para 49. 145

The Rights of the Suspect/Defendant during Investigation and Prosecution 773 in the statute—that the accused be acquitted of the charges, since a ‘substantive condition for punishment’ (materiell straffbarhetsbetingelse)147 is lacking in such cases. There is no reason why this principle should not be applied also to evidence obtained illegally in another Member State of the EU; the basic principles of free admission and free evaluation of evidence entail that evidence obtained in another Member State shall not be treated differently from evidence obtained in Sweden.

E. THE RIGHTS OF THE SUSPECT/DEFENDANT DURING INVESTIGATION AND PROSECUTION

1. Presumption of Innocence There is no express rule in RB—or elsewhere—that stipulates the presumption of innocence of a suspect. In Swedish legal doctrine, the principle has often been approached from another angle, namely the prosecutor’s burden of proof. This burden of proof—together with the requirement of proof beyond reasonable doubt—is understood to have an effect equivalent to the presumption of innocence.148 As the ECHR is a part of Swedish law, Article 6(2) of the Convention: Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law

is fully applicable in the Swedish courts. Although both the Swedish doctrine on the prosecutor’s burden of proof and the condition of being charged with a criminal offence under the ECHR presupposes that a charge has been brought, the presumption of innocence must a fortiori apply to stages of the criminal proceeding before the bringing of charges. A corollary of presumption of innocence is that both an accused who has been acquitted after trial and a former suspect against whom a criminal investigation has been discontinued for lack of evidence are treated as innocent. In both cases, as has been pointed out in the literature, the termination of the procedure must be taken conclusively and unambiguously to mean that the accused or former suspect is not guilty, and that any harm or detriment associated with the accusation or suspicion should as far as possible be eliminated.149 It is therefore considered inappropriate that a court—for example as obiter dicta in a judgment finding the accused not guilty of homicide—should make any statement with the suggestion that the accused may have been guilty of another crime.150 However, the presumption of innocence does not mean that a finding of ‘not guilty’ or ‘insufficient evidence 147 The Supreme Court has, thus, avoided a ruling that would base the acquittal on grounds of justification or excuse. By resorting to the use of the concept of ‘substantive condition for punishment’, the Supreme Court acknowledged in fact that the person could have committed a crime even though it would be unjust for the state to exercise its penal power in the particular case. 148 P O Ekelöf, H Edelstam, L Heuman, Rättegång IV, 7th edn (Stockholm, Norstedts, 2009) 150. 149 See P O Träskman, ‘Presumtionen om den för brott misstänktes oskyldighet’, Festskrift till Lars Welamson (Stockholm, Norstedts, 1987) 469–86; K Nowak, Oskyldighetspresumtionen (Stockholm, Norstedts 2003) 425. 150 See Nowak (n 149) 433ff. A further twist in this case was that the accused could not appeal against the obiter dicta, these being merely part of the reasoning with no operative force as verdict and could therefore not prove in a court of law that they were (also) innocent of the other crime. For further information on this case see Rättsfall från hovrätterna (RH) 1988: 136 (law reports from the Swedish Courts of Appeal; cases identified by year and number in the annual volume) and decisions on the inadmissibility of cases H v Sweden App no 15260/89 and A v Sweden App no 15513/89 (ECtHR of 29 June 1992).

774 Sweden to commence or continue a criminal investigation’ would preclude a future finding of guilt. As mentioned in section A above, a preliminary investigation that has been closed can be reopened when this is called for, usually as a result of the emergence of new evidence.

2. The Right of the Defence to Undertake Investigative Measures/Acts in their own Right and the Right to Request Special Acts of Investigation It follows from the general principles of law that the defence may on its own initiative undertake investigative measures in the course of a preliminary investigation;151 in this respect the position of the defence is no different from that of any private individual. This also means that the defence will have no special competence to undertake measures that cannot be carried out by a private individual. However, when a person is suspected on reasonable ground to have committed a crime, he or she will have the right to access information on the preliminary investigation and to state the investigative measures that the defence considers appropriate.152 The suspect, or his or her defence counsel, may request that questioning or other measures be conducted; such request shall be granted if they may be of significance for the investigation. If such a request is denied, the chief investigator is obliged to give reasons for his or her decision.153 If the chief investigator has completed the investigation without granting the defence’s request for further measures, the defence may report this to the court, which has the authority to question the suspect or other persons, as well as to carry out other measures.154 Besides the fact that the cost of the measure will be borne by the public authority, an obvious advantage to let the chief prosecutor carry out the measure is that intrusive investigative measures may then be used that are otherwise not available to the defence as a private individual. As the chief investigator is required to be objective (see section A2 above), he or she is likely to grant any reasonable request. It should also be borne in mind that it is in the interest of both the prosecutor and the defence to have the best available material before them, before a decision on prosecution is made.

3. The Right to Legal Assistance Regardless of the severity of the case, a suspect always has the right to be assisted by a defence counsel (försvarare) of his own choosing.155 This right should be distinguished from the right to a ‘public defence counsel’ (offentlig försvarare), who is paid out of public funds. In the first place, a public defence counsel is appointed at the request of the suspect when certain conditions are fulfilled.156 If the suspect is deprived of liberty by being 151 Reference may also be made to 21:7 RB, which has been taken to imply a duty of a defence counsel to act independently of his or her client; thus a defence counsel does not need to ask the permission of the chief investigator before making contacts with possible witnesses. See Ekelöf, Edelstam, Pauli (n 2) 137. 152 In practice, the defence normally only requires such supplementary investigative measures after the chief investigator has given a notification that the preliminary investigation is about to be closed (slutdelgivning). However, there is in principle no reason why the defence should not suggest that the chief investigator should take an appropriate measure at an earlier stage. 153 23:18I and 23:18II RB. 154 23:19 RB but also to some extent 21:8 RB. 155 21:3 RB. 156 21:3a RB.

The Rights of the Suspect/Defendant during Investigation and Prosecution 775 detained or remanded in custody, the condition for appointment of a public defence counsel is met. If the suspect is neither arrested nor remanded in custody, a public defence counsel is appointed at the suspect’s request if he or she is suspected of a crime punishable by at least six months’ imprisonment. Furthermore, regardless of the severity of the crime and regardless of whether the suspect has requested a public defence counsel, one will be appointed ex officio (i) if the suspect is in need of a defence counsel in view of the investigation, (ii) if it is uncertain what sanctions will be imposed and there is reason to believe that a conviction will result in more than fines or suspended sentence or a combination of both, and (iii) if there are otherwise special reasons having regard to the circumstances of the suspect or of the case. Furthermore, there is a reminder in 23:5 RB that the chief investigator should make a report to the court when there is a need for a public defence counsel to be appointed. A defence counsel has the right to be present at interviews held in the course of the preliminary investigation (though in some cases only if this will not jeopardise the investigation)157 and the public defence counsel always has the right to meet with his client in private, if the latter is arrested or remanded in custody.158

4. The Right to Have Another Person Informed About One’s Arrest According to 23:21a RB, if a person has been deprived of liberty inter alia through detention or remand in custody, a relative or another closely related person of the suspect shall be informed as soon as this can be done without jeopardising the investigation. However, such information should not be given against the will of the person held, unless there are particularly good reasons for doing so, eg when the person is a minor or if the person has been reported missing.159 In this connection, it may be added that since the question of remand in custody is one for the court to decide, the identity of the person in an application for remand in custody will be information in the public domain. Prior to the lodging of the application for remand in custody, the chief investigator may invoke the secrecy rules governing a preliminary investigation for a refusal to divulge the identity of the suspects being investigated.160

5. The Right to be Informed of the Charges The right to be informed of the charges has already been discussed in section B3 above; as mentioned there, this right arises when a person is suspected on reasonable grounds of the commission of a crime.

157

23:10 RB. 21:9 RB; the rights of a defence counsel who is not a public defence counsel appointed by the court are more limited in this regard. 159 See Lindberg (n 39) 256. There are also obligations to inform other person in specific cases, such as information to the Immigration Authority (Migrationsverket) when a foreigner is remanded in custody (see Lindberg (n 39) 306) as well as obligations to inform certain states arising from bilateral treaties. 160 The rules are constructed in such a way that the prosecutor has the power to classify the information, but is not under a legal duty not to divulge the information. However, out of consideration of the suspect’s integrity, his or her identity is usually kept secret. It is an entirely different matter how the media choose to publish/broadcast the information if they get hold of this in an improper way (eg through ‘leaks’). 158

776 Sweden 6. Access to the File During a Criminal Proceeding The question of access to the file during a criminal proceeding is a rather complicated one, since there are many rules that overlap each other. To begin with, there are constitutional rules on public access to official documents laid down in the Freedom of the Press Act.161 As some of the documents used in a preliminary investigation are official documents, there is a basic right of public access to such documents, regardless of whether one is a suspect or otherwise involved with the case. There are, however, also rules that restrict access to public documents. The second tier of rules comes from the Act on openness and official secrets.162 This Act regulates when information held by public authorities can be divulged, and when access to such information is restricted. This Act is also applicable to any person and in all situations, but there are specific provisions within that Act that deal with restrictions under a criminal investigation. The Act also makes a distinction between information on oneself and information on others, which obviously has significance when a suspect is interested in what charges are being made against him or her. The provisions of the Act on openness and official secrets are, unfortunately, not entirely coordinated with the rules from the Freedom of the Press Act, as the former statute concerns information while the latter deals with documents; it is thus possible that one may have access to an official document, but information contained in the document is classified. The third tier of rules are those found in RB and other special statutes that deal directly with the right to information and access to the files during a preliminary investigation and during the trial phase. These rules can also be divided into those that apply to everyone (including the media) and those that apply only to the parties to the proceedings. Given this complex structure it will be impossible to provide a meaningful account of the system in a short space. Moreover, a recent law commission163 has proposed law reform, inter alia, in the area of the suspect’s access to investigative material and in an earlier law commission164 the access by third parties has been examined. As new, clearer, legislation may come into being, the following presents only some basic features of access to the case file according to the rules in RB. To begin with, the important provision in 23:18I RB, already mentioned several times, gives the suspect and his or her defence counsel the right continuously to be informed of the material that has been gathered during the course of the preliminary investigation, as long as this can be done without jeopardising the investigation. However, when the chief investigator has given notification to the suspect that the preliminary investigation is about to be closed (slutdelgivning), the defence will have access to all the information gathered during the preliminary investigation, as access to such information at this stage cannot be said to jeopardise the investigation. The material on which the decision on whether to bring a prosecution in the case in question is based will be found in a ‘case file’ (förunder sökningsprotokoll). Perhaps more importantly, the chief investigator is under an obligation to reveal also material that is not considered to be relevant to the decision on prosecution; this kind of material is known as ‘collateral material’ (sidomaterial, also known as slasken). It has been stressed in the literature that the possibility for the defence to access incidental material is particularly valuable, as it is often in this material that the defence may discover 161 162 163 164

Tryckfrihetsförordning, 1949: 105. Offentlighets- och sekretesslag, 2009: 400. SOU 2010:14 Partsinsyn enligt rättegångsbalken. SOU 2009:72 Insyn och integritet i brottsbekämpningen några frågor.

The Rights of the Suspect/Defendant during Investigation and Prosecution 777 evidence that the prosecution has overlooked.165 The obligation to account for collateral material also gives the defence the opportunity to see whether the principle of objectivity has been observed during the course of the preliminary investigation. It may be added that the material in the preliminary investigation may contain classified information (eg personal details of a witness). Such classified information must be included in the case file, if the information is relevant for the decision on prosecution, which means that the defence will have access to such information (although access by the general public may be restricted). The rule on unconditional access is, however, not applicable to collateral material; thus, classified information may be kept from the defence if it is not relevant for the decision on prosecution and therefore is included only as incidental material.166 When the suspect is indicted, the defence will—in addition to the right of access—also have the right to have a copy of the case file.167 There is no right to obtain copies of the material if prosecution is not brought, nor is there a right to obtain copies of incidental material. When the case file is handed over to the court, the material contained in the file become official documents and are in principle accessible to the public. However, information in these documents may be classified (especially in sensitive cases, like sexual offences cases, and cases involving young persons). Naturally, this restriction on access is only applicable to the general public; the defence will of course have access to information on the case.

7. The Right to Assistance for the Suspect During the Pre-Trial Procedure (Translator, Defence Lawyer) The right to a defence counsel (discussed in section E3 above) applies throughout the criminal proceeding from the moment that there is suspicion on reasonable ground until the case has been finally disposed of. The accused—by virtue of being a party to the criminal proceeding—has the right to an interpreter at a court hearing.168 This right, however, is applicable only at the trial phase, as the relevant statutory provision is found in the part of RB that deals with the courts in general. There is no explicit right to an interpreter during the preliminary investigation, but it is generally accepted that this right also exists when someone is heard during the preliminary investigation; otherwise there is not much point in questioning the person.169 In any case, where there is no explicit rule on a question of defence rights, the ECHR can be used as a basis for legal practice.

8. The Right to Silence During the Pre-Trial Procedure According to 35:4 RB, the court may draw the conclusion as it sees fit from the fact that a party fails at the trial to fulfil an obligation incumbent upon him/her, eg by refusing to answer questions posed. This provision is formally applicable to parties in both civil

165 166 167 168 169

See Ekelöf, Edelstam, Pauli (n 2) 143 and further references therein. Ibid 144. 23:21IV RB. 5:6 RB. See Bring, Diesen (n 2) 131–32.

778 Sweden and criminal proceedings. The silence of the accused may thus be interpreted as evidence against him/her within the general framework of free admission and free evaluation of evidence. Although criticisms have been raised, claiming that the permissive rule in 35:4 RB would be contradictory to the right to remain silence, the general view is that the right to silence is not being infringed by the free evaluation of evidence when the rule is applied against the general background of ECtHR case law,170 ie when the inference is not used as the only or main evidence against the accused.

170

See Nowak (n 149) 413–18; Commentaries to 35:4 RB in Fitger (n 39).

21 Federal Criminal Law and the European Public Prosecutor’s Office ADÁN NIETO MARTÍN, MARIANNE WADE AND MARTA MUÑOZ DE MORALES

A. FEDERAL CRIMINAL LAW AS A MIRROR OF EUROPEAN CRIMINAL LAW

E

UROPEAN CRIMINAL LAW is in reality half-way between international criminal cooperation and a federal criminal legal system. In fact, it is not always easy to distinguish qualitative differences between federal systems and systems of international cooperation, with regard to the way in which they configure the relations between legal norms, law enforcement bodies, the courts and prosecutors. In both cases, the decisive point is to establish which criteria are to be used when defining the relations between legal norms and the actors (basically the courts, law enforcement bodies, and public prosecutors) in autonomous or independent legal systems. In relation to this last question, which is central to this work, it may be thought a priori that the hierarchy principle might be the basic organisational norm between federal and state actors as well as coordination between actors from different independent criminal justice systems. The study of various federal criminal legal systems, nonetheless, is sufficient for one to perceive that this is a false impression. Federal criminal legal systems contain a wide range of organisational possibilities, with very interesting solutions to problems that might appear quite novel to us from a European perspective. Hence, their study may be especially useful, when examining the complex political negotiations of the European Public Prosecutor’s Office. In this context, the objective of this work is none other than that of examining the organisation of relations between federal and state prosecutors, with a view to formulating useful organisational solutions for the institution of a European Public Prosecutor’s Office (EPPO). In this study, the expressions ‘federal criminal law’ as well as ‘public prosecutor’ are both used with a functional meaning. Thus, it is not important whether the political constitution of a state expressly describes it as federal state, but rather that there is a distribution of competency between central and local prosecuting and investigative bodies. Equally, what is important is not only to study collaboration between various justice ministries, but between the authorities that carry out the preliminary investigative phase prior to the oral hearing or the intermediary phase (police, customs and excise, administrative entities etc). Thus, Spain, Italy and the United Kingdom, for example, which may not be formally described as federal states, should be included within the scope of this study, as they have ways of distributing competency between central and local organs serving various national entities (eg England and Wales, Scotland and Northern Ireland).

782 Federal Criminal Law and the EPPO The study consists of two parts. First, various models of federal criminal law are identified, in order to detect analogies and similarities with the proposals that have to date been made for a European Public Prosecutor (EPP). In the second part, a brief analysis will first be made of the way in which the proposals to create the EPP have been dealt with, and of the basic problems surrounding cooperation between state and federal prosecutors, after which various solutions contributed by national federal legal orders will be pointed out. The present work does not pretend to make an exhaustive presentation of all federal systems, which is why only the most representative are described at each point, or those that contribute the solutions that are considered the most interesting.

B. THE FOUR MODELS OF FEDERAL CRIMINAL LAW

Federal criminal law can be categorised into four broad models. The first model will be called ‘totally unitary’, in which procedural and material criminal legislation is identical, or substantially identical; the second model is ‘partially unitary’, in which substantive criminal law is the same, but there is a different procedural legislation; we have called the third a ‘dual’ model. Federal criminal law, both procedural as well as material, is independent of state criminal law, which has its own catalogue of offences and its own procedural rules. The fourth is a ‘plural’ model, where each state entity has its own system, in the absence of a federal law. Germany, Switzerland and Belgium, in Europe, and in the Americas, Canada and Brazil, may be taken as paradigms of the unitary model. Since German unification in 1871, criminal law and procedural law have been practically a competency of the federal government. There is a single criminal code for all of Germany, and a single criminal procedure. The police, when they act within the criminal process, under the direction of the public prosecutor, also act in accordance with federal law, and not according to the laws governing state police, which are concerned with the traditional policing role of crime prevention. The possibility of the Länder legislating on criminal matters is very slim, for two reasons. First, because, according to the clause of necessity, the Federation and the Länder consider that criminal law should in principle be determined at federal level, and should have only a few regional exceptions.1 The second reason is that the principle of primacy and the impossibility of the Länder legislating on a matter that already appears in Bunderstag legislation, which may also extend to administrative law penalties, has helped to maintain the status quo since German unification. Within this unitary legislative framework, the main characteristic of German federalism is the notable autonomy of each Land with regard to the application and execution of criminal law. This autonomy explains the existence of the state prosecutor’s offices and a federal prosecutor’s office, and why each state prosecutor’s office can establish its own Guidelines on prosecution. Their differences in sentencing (Strafzumessung), despite the existence of a unitary penal code, have even become wellknown in Germany. The competencies of state and federal prosecutors are assigned in § 120 GVG,2 where as well as the more typical federal interests (eg treason), other federal

1 2

HH Jescheck, Tratado de Derecho pena: Parte General, 4th edn (Granada, Comares, 1993) 100. Gerichtsverfassungsgesetz—available at www.gesetze-im-internet.de/bundesrecht/gvg/gesamt.pdf.

The Four Models of Federal Criminal Law 783 competencies appear linked to new forms of criminality (in particular terrorism and organised crime). Although Swiss criminal justice federalism follows the unitary model, the federal-state division is much more important than in Germany. Traditionally, each Swiss canton has its own criminal procedural code (partially unitary model). The Constitution of 20003 gave authority to the Federal parliament to unify procedural legislation (Article 123.1 of the Swiss Constitution), which took effect in the now sole criminal procedural code approved in 2007, which entered into force on 1 January 2011. CCP, Article 14 confers on each canton powers for the autonomous organisation of their judicial organs and the ministry of public prosecution. The cantonal criminal authorities (courts, prosecutors, law enforcement agencies) are competent to investigate and to judge the majority of offences, except for a series of exceptions listed in CCP, Article 23. These exceptions have been on the increase in recent years. Today, the federal authorities are competent in relation to ‘transnational’ offences such as computer crime, serious economic crime, money laundering and drug trafficking (CCP, Article 24). In relation to these crimes, the Federal Law of 4 October 2002 has created a corps of Federal police, extended the authority of the Federal Prosecutor’s Office and has established a national court of first instance. These federal authorities can remit the instruction and judgment of these offences to the cantons or, exceptionally, their judgment alone (CCP, Article 25). Canada may be included within the unitary model, and with a system closer to the Swiss than to the German model. The fundamental difference is that although the Constitution of 19674 grants the federal government legislative competency in substantive and procedural criminal matters, the regions can establish some regulatory offences in those matters that come under their authority. In a similar way to Germany, the regions have competencies with regard to the organisation of the administration of justice, above all with regard to their regulatory offences. In some federal ‘unitary’ systems, such as Belgium, Spain and Italy, such extended competencies to organise the administration of justice do not exist. Nevertheless, a federal Public Prosecutor’s Office was created in Belgium in 1998, which concerns itself with offences against state security, offences related to nuclear material, trafficking and smuggling of human beings, international arms trafficking, serious violations of humanitarian international law (war crimes, genocide crimes and crimes against humanity), conspiracy to attack persons or properties, criminal organisations, terrorism as well as offences committed, for the most part, in several territorial jurisdictions of the Court of Appeal, or having an international dimension to trial. The Federal prosecution service has exclusive jurisdiction over serious violations of humanitarian international law and otherwise pursues cases ‘Si une bonne administration de la justice l’exige’ (‘If good administration of justice so demands’).5 The second federal criminal justice model is ‘partially unitary’, and its prototypes are Argentina and Switzerland before its Constitutional reform in 2000. Article 75 of the Argentine Constitution6 invests Congress with the authority to approve the Penal Code,

3 The Federal Constitution of the Swiss Federation—an English translation is available at www.admin.ch/ch/e/ rs/1/101.en.pdf. 4 See http://laws.justice.gc.ca/eng/Const/. 5 Art 144ter Belgian Code Judiciaire. A full text is available at www.ejustice.just.fgov.be/doc/rech_f.htm. 6 See www.senado.gov.ar/web/interes/constitucion/cuerpo1.php.

784 Federal Criminal Law and the EPPO whereas it establishes that its application depends on the federal and provincial tribunals, ‘depending on the respective jurisdictions for persons or things’.7 For this reason, the provinces make their own procedural laws that contain important differences. Whereas, for example, a popular jury is found in Cordoba, this institution remains unknown in other jurisdictions. Article 5 of the Constitution grants each province the freedom to organise its own justice administration, which is why each province has its own Supreme Court and its own prosecution service. As happens between countries of the EU, there are various models of prosecutors. Whereas in the majority of provinces, the prosecutors form part of the judicial branch, in others they have more links with the executive branch. Faced with these divergences, a draft law was presented in 2004 with the objective of preparing some uniform foundations for public prosecutions and the administration of criminal justice in the Republic of Argentina.8 The aim of this proposal is to establish common guarantees for accused and victims across Argentine territory, which is why to a great extent it shares a similar end to the Proposal for a Framework Decision on minimum guarantees in criminal proceedings, insofar as it seeks the harmonisation of safeguards and common principles to all federal criminal rights. A good part of the doctrine aspires to total uniformity, arguing that this would notably improve mutual cooperation and would be beneficial for the public that would not have to deal with various procedural systems. These proposals for unification do not, however, affect the way in which the relations between federal and state actors are configured. There is a degree of separation among them similar to that which exists between actors from different legal orders, and a system of cooperation that is similar to international criminal cooperation. Despite having a single criminal code, cooperation between prosecutors at different levels in Argentine criminal federalism is complicated by significant procedural differences between the different provinces. The dual model of federal criminal law is normally considered a prototype of federal criminal law. It is characterised by the existence of two autonomous and complete systems, both with regard to the substantive and procedural norms to apply and to the existence of their own institutions. Each province is competent to establish its own offences and its own procedural law, to organise its own justice administration and penal system. Various actors are also present. Federal offences are investigated by the police and the federal prosecutor and are judged before federal courts, whereas local offences have their own local authorities. This system, which has no parallel among the countries of the EU, is also found in the United States and Mexico. In the USA, the original design of its Constitution limited federal criminal law to very specific sectors: falsification of public documents, counterfeiting, piracy, offences committed on the high seas or offences against the right of peoples (Article I, sections 8, 6 and 10 of the US Constitution). Despite this restriction, federal criminal law has grown through two constitutional mechanisms: the necessary and proper clause, and the commerce clause.

7 Art 75 Argentine Constitution. A full and official text can be found at www.senado.gov.ar/web/interes/constitucion/cuerpo1.php. 8 www1.hcdn.gov.ar/dependencias/dsecretaria/Periodo2004/PDF2004/TP2004/03mayo2004/tp047/2489D-04.pdf. The regulations on cooperation between prosecutors, courts and administrative authorities may be found under Art 52.7.

The Four Models of Federal Criminal Law 785 The clause on necessity, similar to that which exists in Germany, grants Congress—in other words, the federation—authority under section 8 To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This competency in connection with the commerce clause that, in turn, grants competencies to the federation for the regulation of state commerce has, for decades, favoured the expansion of federal criminal law that only recently seems to have slackened slightly. Nevertheless, and despite the important growth of federal law, state criminal law continues to be of more practical relevance. In a similar way to what has happened in the EU, one important sector of public opinion and of the doctrine is opposed to the extension of federal criminal law. Whenever federal norms are valid, they have primacy over state law, on the basis of the principle of primacy. Although the Constitution of the United States expressly prohibits the use of a process similar to harmonisation in the approximation of state legislation (non-commandeering), in order to understand the North American criminal system, one should undoubtedly bear in mind that a broad de facto approximation has taken place along three different paths. In the first place, the jurisprudence of the Supreme Court has put in place a set of common safeguards in all criminal proceedings, which does not prevent them from taking effect in state and federal law which, as we shall see later, are generally lower. In second place, the 1962 Model Penal Code, insofar as it affects substantive criminal law, has been the underlying inspiration for practically all the state Penal Codes that have been issued since its publication.9 Thirdly, the pressure of the federal government to ‘push’ the criminal policy of the states in a particular direction, for example, by making subsidies for road construction conditional upon the completion of certain reforms of offences against road safety. As happened in Argentina, the form of judicial cooperation between state and federal authorities bears a greater relation with the classic regulation of international criminal cooperation, than with advanced forms of cooperation such as those we have seen in Switzerland or even those which exist within the European Union. Thus, for example, the principle of mutual recognition, that is expressly acknowledged in the US Constitution, is specifically excluded from the field of criminal law. Neither at state-state level nor at state-federal level may the decisions of criminal authorities be directly enforced by courts or prosecutors from other states or by prosecutors and federal judges. Equally, the principle of ne bis in idem is not considered applicable to penalties from different states or between state and federal penalties, a principle upheld by the specific argument that it is a question of two separate sovereign bodies exercising their own ius puniendi. This lack of acknowledgement of the principle of ne bis in idem between the proceedings of different states or between those in one state and the federal courts is also the case in Argentina. The United Kingdom entails a peculiar case of criminal justice federalism (as defined in this paper), which we have called a plural model, and which is characterised by having only state criminal law and with full autonomy in each of its constituent countries. It offers a very different example in which no supra-jurisdictional level exists, but interaction between 9 See J Granados Peña, ‘La influencia del Código penal modelo en la reforma del Derecho de los EEUU: (Breves comentarios con motivo del Trigésimo aniversario del Código Penal Modelo)’ (1992) 3 Anuario de Derecho Penal y Ciencias Penales 1026.

786 Federal Criminal Law and the EPPO the existing jurisdictions is marked by informality and a sense of common purpose.10 Only exceptionally is legal regulation found, most problems being solved by direct contact, common agencies or mutual recognition. Provision is made for summons and search warrants issued in one jurisdiction to be enforceable in another, provided they are endorsed by the relevant local court,11 arrest warrants are now directly enforceable upon each others territory12 and police officers have certain standard powers and in some cases local officers are empowered to arrest without a warrant in the territory of another jurisdiction.13 Sentences imposed in one jurisdiction are mutually recognised in the others,14 whilst convictions are taken as a rebuttable presumption of the offence having been committed in England and Northern Ireland, and a method of proof of this in Scotland.15 Courts have ruled on jurisdictional rules and the application of, for example, Scottish law on English soil; as well as deeming evidence admissible, provided it is gathered in accordance with the rules of where it was gathered (locus regit actum).16 Following this exposé, when comparing the three models associated with the three projects that so far have been proposed for the EPP, two factors especially spring to light. The first is the organic expansion of federal criminal law. Originally limited to a certain number of offences that federal interests defined, they grew through various mechanisms, such as primacy. In recent times, the expansion of federal criminal legislation, following a different logic, has been linked to the emergence of new forms of criminality such as terrorism, organised crime, economic crimes, etc. There are therefore certain parallels to the evolution of the EPP; although this is proposed primarily to protect specific interests of the ‘federation’, in particular its finances, the Treaty of Lisbon provides for potential expansion of its competencies to cover other forms of criminality.17 Equally, the logic underlying the competency of provinces in Canada, in relation to regulatory offences is similar to the ‘annexed competency’ envisaged in Article 83(2) of the Treaty of Lisbon.18 Among the various federal models, the construction of the EPPO should necessarily begin with either the dual model or the plural model. The central point of the debate

10 See J Spencer, C Mancuso, in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice—Volume 3: The Criminal Justice Systems in the United Kingdom and the USA (Berlin, Dunker and Humblot, 2012), IV.E. A further example is that an exception always applied to the border regions, allowing police there to act immediately on the other side of the border. Since 1994 the need for formal endorsement of decisions from other UK jurisdictions no longer applies—ibid, IV.1. 11 The Summary Jurisdiction (Process) Act 1881 regulates the position between England and Wales and Scotland; the Petty Sessions (Ireland) Act 1851 the position between Northern Ireland and the other jurisdictions. 12 Criminal Justice and Public Order Act 1994, s 136. 13 Ibid, ss 137–40. 14 Criminal Justice Act 2003, Schs 9, 11 and 13. The Criminal (Procedure) Scotland Act 1995 (as amended by the Powers of Criminal Courts (Sentencing) Act 2000) regulates the execution of probation orders (s 234) and community service orders (ss 242–45) imposed by a Scottish court on persons residing in England and Wales or in Northern Ireland. As far as the transfer of financial fines or fine orders is concerned, the relevant provisions are contained in the Criminal Procedure (Scotland) Act 1995, s 222, in the Magistrates’ Courts Act 1980, s 90 and in the Magistrates’ Courts (Northern Ireland) Order 1981, s 95. 15 Police and Criminal Evidence Act 1984, ss 73–75, Police and Criminal Evidence (Northern Ireland) Order 1989, ss 71–73 and Criminal Procedure (Scotland) Act 1995, ss 285–86. 16 See Spencer, Mancuso (n 11), IV. 17 See TFEU, Art 86(4). 18 M Muñoz de Morales Romero, ‘Los Derechos penales federales y el Derecho penal europeo’ in LM Díez Picazo Jiménez, A Nieto Martín (eds), Los derechos fundamentales en el Derecho penal europeo, 1st edn (Pamplona, Civitas, 2010).

Six Key Questions 787 is whether, as the Corpus Juris19 proposes, the option of a dual model is taken up, with substantive and procedural norms of a supranational nature, or whether, as some of the recent proposals recommend, such as the Spanish proposal, a ‘plural’ model is adopted, in which the EPP would act on the basis of national laws that are not necessarily harmonised. Between these two extremes, the design proposed in the Green Paper may be situated at an intermediary point. In reality, all the proposals for the EPP start with a plural regulatory framework where state law has at least a complementary nature and all the proposals consider it necessary to have a set of supranational rules, although as in the case of the Spanish proposal, these are meant to be reduced to a minimum.20 Equally, all the proposals are basically in agreement that the supervision of and application of the law, even where it is supranational, should lie in the hands of domestic judges. TFUE Article 86, as well as granting freedom of configuration when creating the EPP, establishes that the European Prosecutor will bring criminal actions before the competent, national judicial organs. In any case, and leaving to one side the exceptional case of the United Kingdom, the construction of the European Prosecutor’s office should begin with the empirical observation that even the ‘dual’ models for federal systems work, thanks to a high degree of harmonisation.

C. THE DIVISION OF WORK BETWEEN THE EPPO AND THE NATIONAL CRIMINAL AUTHORITIES: SIX KEY QUESTIONS

Regardless of the model of criminal federalism, six transversal problems arise in the organisation of the relations between federal and state authorities, which as we shall see are essential when designing the EPPO. The first of these is the choice between an organisation based on the principle of hierarchy between national prosecutors, or an organisation based on cooperation between independent authorities; the second is the question of which competent organ will designate the cases for which it exercises authority; the third, the way of articulating cooperation between prosecutors; the fourth the possibility of using the divergences in safeguards and rights between the various systems, which is known as the problem of forum shopping; the fifth concerns the conflicts of competency and the possibility of judicial control over the assignation of the case; the sixth, the problem of duplicity of proceedings and convictions (ne bis in idem).

1. Hierarchy by Coordination or Hierarchy by Dialogue One of the most surprising features of all the EPP proposals is that, even though they opt for a dual or even a plural model of criminal federalism, they go on to construct the relations between national and federal criminal authorities in a hierarchical way, unlike what happens in the majority of federal systems. This hierarchical model is also present in the recent reflections on the EPPO, as construed by Spain. Only recently have some voices started to speak more of collegiate cooperation involving greater dialogue on the basis of

19 M Delmas-Marty, J Vervaele (eds), La mise en oeuvre du Corpus Juris dans les Etats members/The implementation of the Corpus Juris in the member States, vol I (Antwerp, Intersentia, 2000). 20 See the Spanish proposal in J Espina Ramos, I Vicente Garbajosa (eds), La futura Fiscalía Europea (Madrid, Ministerio de Justicia, 2009).

788 Federal Criminal Law and the EPPO Article 86 of the TFEU, with the argument that if the prosecutor’s office is created ‘from Eurojust’, it has in some way to remain a collegiate body.21 This necessity is further underlined if EPP competencies begin to expand beyond protecting the financial interests of the EU. A limitation to such competencies might allow the EPP to be viewed as a very particular exception (though eg the prosecution of cases of currency counterfeiting will conceivably lead to a multi-level prosecution system, requiring cooperation and coordination of the two levels). If, however, the EPP is expected to deal with various forms of transnational crime, this will necessitate the development of interrelated structures, lending themselves even less to hierarchical structures. Although the various projects to create a European Prosecutor call for dialogue and even talk specifically of the ‘organisation of the dialogue between the European prosecutor and the competent national authorities in the judgment’, or the possibility of introducing ‘a mechanism of consultation between the European Prosecutor and the competent authorities which with practical experience would progressively consolidate mutual trust’,22 what is certain is that afterwards a hierarchical relation is formed which institutes ‘obligations to cooperate’ (Article 15 of the Corpus Juris), and which extends to administrative authorities and national law enforcement services (Article 20.2 c of the Corpus Juris).23 Even under the circumstances in which the European Prosecutor leaves a case in the hands of the national prosecutors, the criteria of centralised management prevent these from adopting any autonomous decisions (Article 19.4 of the Corpus Juris). In the Green Paper, the unitary direction also extends to the mixed proceedings in which the behaviour affects both national and European interests. A hierarchical structure is of course the most logical choice in relation to the Delegated Prosecutors,24 but it does run counter to the European and the national prosecutors set-up, where in view of the federal experience, a hierarchy is by no means the only form of organisation. In fact, in the majority of federal systems, the relationship between prosecutors (federal and state) is not hierarchical but takes the form of an organisation based on independence, where mechanisms for cooperation between state and national prosecutors do not always emerge. Among the EU countries, this is the case of Germany, where the state and the federal prosecutors are absolutely independent.25 There is thus no hierarchical relationship between the federal and the Länder prosecution services, nor indeed is there a formal, common structure between those of the various Länder.26 A similar situation is found in Argentina, Mexico and Brazil. 21 M Wade, ‘The European Public Prosecutor—The Future of European Criminal Justice’, in F Yenisey and U Sieber (eds) Criminal Law in the Global Risk Society (Istanbul, Bacesehir University, 2010) 287–310, 306f; the Spanish proposal expressly rejects this possibility. 22 EU Commission, Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor, COM (2001) 715 final, 48. 23 Equally in the Green Paper, 80 (n 23), although it offers various alternatives on this point. 24 On this point the only debatable issue is whether they are subject to a double hierarchy, as put forward in the Spanish proposal, of the European prosecutor and, in their case, their respective national authority or, alternatively, whether they should be exclusively under the European Prosecutor. See on the one hand the Green Paper, 96ff and on the other the Spanish proposal with its idea of ‘two hats’. 25 Eurojustice, EU Member States, ‘The Relation between the Public Prosecutor and the Minister of Justice’ in Country Report Germany (Eurojustice, 2004) www.euro-justice.com/member_states/germany/country_ report/2788/. 26 M Engelhart, ‘The Criminal Justice System in Germany’, in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice Vol 6: The Criminal Justice System in Germany, the Netherlands and Switzerland (Berlin, Dunker and Humblot, 2012) I.C.1.b(2).

Six Key Questions 789 Faced with this first possibility, central and federal structures appear in other federal systems that, although hierarchically superior, have established mechanisms for judicial cooperation. The emblematic case is Belgium, where an organ of cooperation, the Collège des procureurs, has been created. It is headed by five Prosecutors General, who direct 27 Crown Prosecutors at the head of each prosecution area. The Collège sets criminal policy to be enforced by the prosecution service. These structures now in place are described by Weyembergh et al as bringing order to a previously troubled system. Cooperation within the strictly hierarchical prosecution service and between local police forces with differing geographical responsibilities is reported as working via reference to a superior officer or provincial prosecutor, with the Federal Prosecutor stepping in to coordinate larger numbers of local prosecutors where necessary. In other words, clear task assignment and hierarchical coordination structures appear to be the mark of successfully inter-operating prosecution levels. There is, however, one caveat: the danger of negative conflicts of jurisdiction resulting from the stricter definition of assignments to be tackled at federal level and the ability and capacity that local police see themselves as having.27 In other federal systems, such as the United Kingdom, an informal cooperative practice has been introduced. A feature observed in countries such as Argentina, is that of meetings taking place between the provincial and the national prosecutors, to coordinate various matters. Beyond this type of informal cooperation, what may be observed in many federal systems is a tendency to institutionalise or formalise informal cooperation in relation to certain groups of offences. Thus, for example, in Argentina, cooperation has become institutionalised in matters such as the trafficking of people. In the United Kingdom, the Serious Organised Crime Agency (SOCA) carries out this work throughout the state. This is not, however, a prosecution development but a wholly integrated investigation and prosecution approach.28 One form of organisation other than these more or less institutionalised cooperative forms is the creation of specialist prosecutors for certain offences, which operate across the entire territory of a state, and which in turn help with coordination and are hierarchically superior to all other prosecutors. The emblematic case is that of the Italian AntiMafia Prosecutor’s Office. It acts in reality as an organ to facilitate cooperation, which supervises the actions of the 20 anti-mafia prosecutors and the efficacy of the police; it can also request or gather information upon its own initiative, resolve conflicts between prosecutors, etc. Where a situation requiring cooperation arises, the national Anti-Mafia Prosecutor’s Office can define how various offices are to work together. If after such efforts, the matter is still failing, the prosecutor can take over the case. The Anti-Mafia Prosecutor’s Office both at district and at national level works alongside the ‘normal’ chief prosecutors who are still fundamentally charged with such cases. The Anti-Mafia Prosecutor’s Office supports the latter in such cases, coordinating their actions where this may become necessary, but at the same time supervising them in this work. Where they judge prosecutors as failing to do their work properly—factually after chief prosecutors have repeatedly ignored instructions issued to them by the Anti-Mafia Prosecutor’s Office, as an ultima ratio, antimafia prosecutors will take a case over from them at the requisite level. Italy thus provides 27 A Weyembergh et al, ‘The Criminal Justice System in Belgium’, in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice Vol 2: The Criminal Justice System in Romanic States (Berlin, Dunker and Humblot, 2012) IV. A and B, VI. 28 See Spencer, Mancuso (n 11) IV and IV.5.

790 Federal Criminal Law and the EPPO an example of successful prosecutorial coordination and work for a specific crime across internal jurisdictional boundaries resulting from the introduction of a fairly strict hierarchy with a single, powerful body ultimately in charge of ensuring cooperation. This body remains dependent upon non-centralised bodies for its information and has power to take over cases only as a final resort. Thus a balance of common purpose alongside what are, ultimately, clear power structures would appear to be necessary to emulate this success.

2. The Assignation of Cases: Formal and Substantive Criteria Wherever there is a division of powers for the investigation and prosecution of certain offences between various prosecutors, it is essential for there to be an organisational system that can guarantee the most effective possible assignation of the various cases. As has happened with the different proposals for the EPP, the starting point in the majority of systems is to set the competency of each prosecutor’s office on the basis of a list of offences. This formal criterion of assignation of cases is complemented in the majority of states by various mechanisms that aim to guarantee the efficiency of the system: the establishment of substantive criteria for the assignment of competencies, which are carefully taken into account to determine ab origine who the competent prosecutor will be, or to delegate the investigation of the case to another prosecutor. The exchange of information between all authorities that can hypothetically intervene in the investigation is a key aspect in order to guarantee its assignment to the competent organ, or to the one that can carry it out most efficiently. The EPP project, as in other federal systems, necessitates the creation of an information flow system, which feeds information in an upwards direction towards superior hierarchical levels, the consequence of which is an obligations for bottom-up information flows.29 Article 19 of the Corpus Juris points out that the EPP should be informed of all the facts that could constitute infringements of the latter precepts (Articles 1–8), both for the national authorities (police, prosecutors, judges of instruction, agents of the various national administrations, such as the treasury or the customs and excise), as well as for the European Anti-Fraud Office (OLAF), the Community organ that has authority for these matters. This vertical system of information exchange is not, of course, the only possible arrangement. Some states have also created a network to exchange information. Belgium,30 Germany,31 Italy32 and Switzerland33 are reported to possess good information exchange mechanisms to ensure that the structures in place work efficiently because, above all, prosecutors are generally able to learn about relevant cases being pursued by colleagues. Without any doubt, future regulation of the

29 This model has also been chosen as a basis for informing Eurojust via Art 13 2008 Eurojust Decision, particularly ss 1 and 6. 30 Where it is the police who hold the keys to this information—see Weyembergh at al (n 28) III.A.2.b. 31 See Engelhart (n 27) III. 32 See G Illuminati, ‘The Criminal Justice System in Italy’, in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice Vol 2: The Criminal Justice System in Romanic States (Berlin, Dunker and Humblot, 2012) IV.A.1. 33 See S Gless, J Wenneckers, ‘The Criminal Justice System in Switzerland’, in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice Vol 6: The Criminal Justice System in Germany, the Netherlands and Switzerland (Berlin, Dunker and Humblot, 2012) IV.A.1.

Six Key Questions 791 EPP should be based on more than a ‘bottom-up’ information service, and the creation of a networked information system, as is at present the case of Europol and Eurojust. As has been shown, the mechanism of deciding which prosecutor is competent to investigate the case follows similar parameters for almost all the federal systems and is the one used in the proposals for the European prosecutor (Article 18 of the Corpus Juris). The federal prosecutors have exclusive authority to declare themselves competent, simply by checking whether there is a federal or common interest in prosecution of the infringement. However, this question, prima facie sencilla, entails various problematic aspects. On the one hand, despite there being a ‘list’ that sets out the competencies, in reality things are usually more complicated, as happens in the case of ‘mixed affairs’, in which alongside the federal interest, there is usually (at least) another state interest. In the case of the EU, it could be circumstances in which, for example, a national customs official was bribed to defraud customs duties. After raising this problem, the Green Paper left the solution open.34 Equally, as will be seen from other systems, apart from the ‘list’ of competencies, substantive criteria on the attribution of areas of competencies are considered which, through the lens of European law, can lead back to the idea of subsidiarity. A first example of substantive criteria for the attribution of areas of competency is provided by Belgium, with the idea of ‘added value’. In Belgium, the competency of the federal prosecutor has the preliminary requirement of having to contribute some added value to the investigation. Equally, the case of the Italian Anti-Mafia Prosecutor’s Office is already known. This organ receives information from various prosecutors, not with the intention of declaring itself immediately competent, but of supervising their work, in such a way that whenever failings are observed, it has the possibility of observing the case, or naming another investigative body and indeed ultimately taking it over itself. In this section, the experience of the United States with the Principles of Federal Prosecution35 is especially interesting. Although its priority is not to distribute competencies between federal and state prosecutors, it is possible either directly or indirectly to extract at least three material criteria of the utmost interest, which relate to the seriousness of the case, as well as to the efficacy of the federal as compared with the state prosecution, and alternatives outside criminal law. The ‘substantial federal interest’36 criterion is assessed by means of a series of very varied sub-criteria, which, as has been critically noted, although they do not necessarily bring the federal interest to the fore,37 underline that only the most serious cases, because of the characteristics of the author (repeated offences, failure to cooperate) and of the act in itself, are of interest to federal prosecutors. The second criterion, the ‘strength of the jurisdiction’s interest’, links into the idea of subsidiarity, is the existence or the probability of an effective prosecution in another jurisdiction.38 Here, the federal prosecutor assesses, when taking on a case, the interest of another jurisdiction in the prosecution and its capacity and willingness to prosecute the offence effectively, the probable outcome of a conviction, as well as any other consequences that might arise from the fact of conviction in another jurisdiction. Within this criterion, mixed cases are, 34

Green Paper (nn 23), 126. The Principles of Federal Prosecution are available at www.justice.gov/usao/eousa/foia_reading_room/ usam/title9/27mcrm.htm. 36 Cf Principles of Federal Prosecution (n 36), 9.27.230. 37 J Stinneford, ‘Subsidiarity, Federalism and Federal Prosecution of Street Crime’ (2005) Journal of Catholic Social Thought 27. 38 Cf Principles (n 36), 9-27.240. 35

792 Federal Criminal Law and the EPPO for example, taken into account. It is pointed out that the state system should be taken into account in those cases in which even though there has been a violation of federal law, it may be assumed that the federal interest predominates over the state interest, owing to the identity of the author or the victim, the investigation undertaken so far by the state authorities or for other reasons. The third criterion, the ‘adequate non-criminal alternative to prosecution’, fits in with the idea of ultima ratio, insofar as it seeks alternatives to criminal prosecution in civil, tax, and administrative law, etc from each state.39 Equally, and still within the USA, existing experience in the framework of the GunSweep and Federal Prosecutors of Drugs Criminals projects,40 dealing with crimes involving firearms and related to drug trafficking offences respectively, is especially interesting, in which a sort of informal cooperation team between state and federal prosecutors has been constituted. In these teams, the state prosecutors select a series of cases that, in their opinion, should be prosecuted at federal level. Subsequently, the general prosecutor, on the basis of this pre-selection and without reviewing the cases, decides which to take up. Genuine forum shopping takes place in this pre-selection, because the state prosecutors transmit cases to the federal prosecutors, which, for example, in accordance with their legal system will assume the non-admission of certain evidence, or whose hand-over to federal jurisdiction implies a more severe penalty. Faced with this situation, very frequently the accused reach a rapid agreement with the state prosecutor over a penalty in order not to be referred to the federal prosecutor (state plea incentive). This is a bottom-up system, insofar as the state prosecutors themselves decide on the cases to be put before the federal prosecutor. These criteria of subsidiarity or of a ‘dialogued’ procedure on the attribution of areas of competency should also be engaged at the time of the delegation of competencies. In principle, the power of federal prosecutors to decide who is ab origine competent for the investigation of a case is also linked to the capacity to delegate the case at any time in the investigation. The possibility of delegating is generally connected with the need to optimise resources, reserving federal prosecutorial action for especially serious cases. The various proposals for an EPP have always envisaged this possibility. Whereas the Corpus Juris (Article 19.4 a) contains a skeletal regulation, the Green Paper expands upon the possibilities of delegation. In this sense, it indicates that the competency of the European prosecutor relating to the crimes within its jurisdiction should not be understood as exclusive, but should rather speak of systematic intervention and primacy. For the Green Paper, although the competency of the European Prosecutor is of a priority nature in all the cases that affect the interests of the EU, this does not imply that it should be exclusive. Thus, the least important cases could be delegated to national prosecutors.41

39 Ibid, 9-27.250. Specifically: ‘When a person has committed a Federal offense, it is important that the law respond promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be initiated. In recognition of the fact that resort to the criminal process is not necessarily the only appropriate response to serious forms of antisocial activity, Congress and state legislatures have provided civil and administrative remedies for many types of conduct that may also be subject to criminal sanction. Examples of such non-criminal approaches include civil tax proceedings; civil actions under the securities, customs, antitrust, or other regulatory laws; and reference of complaints to licensing authorities or to professional organisations such as bar associations. Another potentially useful alternative to prosecution in some cases is pretrial diversion’. 40 L Miller, J Eisenstein, ‘The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion’ (2005) 30 Law & Social Inquiry 252. 41 Cf Green Paper (n 23), 21.

Six Key Questions 793 Equally, a dialogue can take place when assigning the case between state and federal prosecutors, and should also occur at the time of delegation. Thus, for example, the transfer of cases in Germany both at a horizontal level, between the Länder prosecutors, or vertically, between the state and the federal prosecutor, is discussed informally, and only in cases where there is no agreement will a higher authority intervene.42 Handover of a case is done via a formal, written procedure with the special conditions described above ensuring that the opinions of federal prosecutors on cases within their jurisdiction are decisive. Prosecutors are bound strongly into hierarchical organisational structures through which instructions are passed to ensure coherent policy on where cases are dealt with (usually of a general rather than case specific nature).43

3. Requesting (and Ensuring) Supportive or Parallel Action from Prosecutors in Different Jurisdictions One of the principal objectives of the Corpus Juris is to reduce the need for cooperation in cases of European transcendence. To do so, the European Prosecutor grants them capacity to act across the territory of the Union through its delegated prosecutors, who act on the basis of common procedural rules (Article 18.1 of the Corpus Juris). This circumstance would not mean that the European Prosecutor, due to limited resources, could operate without the assistance of the national prosecutors. For this reason, the Corpus Juris establishes a strict duty of cooperation: ‘they will respond without delay to all requests for cooperation’. In some federal states this duty to cooperate derives directly from the constitution, as in the case of Germany44 and Mexico,45 where a regulated system of cooperation moreover exists between the various prosecutors.46 The experience of federal states provides two interesting lessons on this point. The first is that the imposition of such a strict duty to cooperate, such as that of the Corpus Juris, might hinder the progress of investigations and actions that national justice itself undertakes.47 This tension, that is coupled with the duty for cooperation, is made manifest with special clarity in the North American system, where the federal prosecutors cooperate solely on ‘winning cases’, in which the probabilities of a conviction are high, and are 42

See Engelhart (n 27), IV.B.1. Ibid, II.B.4.b. BverfGE 1, 177ff; 1, 299 ss; 43, 291 (438); see H Bauer, in H Dreier, GG, Art 20 (Bundesstaat) Rn 38ff; Jestaedt, HdbStR, § 29 Rn 73ff; MD-Grzesick, Art 20 IV Rn 118ff. 45 Arts 21.10 and 119 Political Constitution of the United States of Mexico [now the Constitution of Mexico]: ‘Both the States and the Federal District shall answer to other States respective requestions not only by delivering without delay all indicted or tried individuals as well as all convicted felons but also by performing all tasks directed to secure and deliver objects or tools used to commit criminal offences and such offences’ products. The States shall enter into agreement with each other in order to empower their Attorney Generals to undertake the aforementioned activities. In order to achieve such objectives, both the States and the Federal District can enter into agreement with the Federal Government who will act through the Attorney General.’ (English translation www.juridicas.unam.mx/infjur/leg/constmex/pdf/consting.pdf.) 46 In Mexico, the Federal Code of Criminal Procedures and the Codes of the different states contemplate this question. The Convenio Interprocuradurias also exists, according to which the prosecutors of the 31 states, of the Distrito Federal (City of Mexico) the Attorney General of the Republic and the military Justice commit themselves to absolute coordination in relation to the exchange of information, collaboration in the preparation of common register of offenders, assistance to victims and injured parties, as well as the investigation of crimes, the application of custodial orders, detention and the immediate presentation of the suspect before the courts. 47 See a brief reference to this question in the Green Paper (n 23), 154. 43 44

794 Federal Criminal Law and the EPPO likewise reluctant to cooperate in state proceedings that are usually much longer and subject to greater safeguards for the accused. Nevertheless, the September 11 attacks and the need to effectively combat terrorism appears to have softened this tendency, with the appearance of working groups on federal-states cooperation.48 The second lesson is that the possibility of federal prosecutors acting across the whole territory does not usually put an end to the need for cooperation, whether because of lack of resources or because it is simply more convenient to entrust certain investigative acts to state prosecutors. For this reason, there are common instances in many systems whose role is to lubricate the system of cooperation between state and federal prosecutors, because there is a constant need for cooperation.49 Thus, in Germany, where the accused may request legal assistance from various prosecutors, joint investigative teams have been created for those circumstances which require particularly close cooperation.50 Horizontal cooperation between offices is defined as an administrative matter, meaning the defendant has no opportunity to comment on any decisions made in such contexts. Germany thus provides an interesting model in which a relatively clear legal framework, backed up by a constitutionally mandated spirit of cooperation as well as good information availability can be viewed as the keys to its success. In Belgium this cooperation is organised through a superior hierarchical structure. This involves the requesting prosecution office passing its request on to a superior prosecutor (usually one level up the hierarchy in terms of how the criminal justice system generally operates), which will then coordinate performance of the task. This happens in Belgium via the King’s prosecutors and the Federal prosecutor, who have nationwide powers.51 The European system can also draw some interesting lessons from the old Swiss federal system. In Switzerland, an obligation to cooperate existed (Article 356 of the Swiss CC),52 as did the possibility of prosecutors from one canton carrying out investigations in another territory, provided they could count on the agreement of the authorities (Article 359 of the Swiss CC), and respected the rules existing in that territory. This system was not simple, as it presumed knowledge of different procedural systems, so a specialised judicial assistance unit was created through an inter-cantonal convention.53 Investigations in other territories followed the legal order in which the investigation was conducted there, and they were conducted in the prosecutor’s own language. Under this system, arrest and extradition or transfer warrants were valid Federation-wide, whilst any other investigative steps taken, using legal assistance measures, could also be channelled via the respective centralised contact point. In practice the traditional forms of inter-cantonal legal assistance (Article 356 para 1 of the Swiss CC) still played an important role, because the effort involved in making use of their Concordat rights for prosecutors often proved prohibitive.54 This was a matter of direct contact between the responsible agencies, possibly using the centralised office if necessary. In cases of disagreement, the Federal Court settled such conflicts.55 Inaction could be countered

48

Miller, Eisenstein (n 41) 250ff. See M Wade, ‘The Present Criminal Justice Structures at the National Level’ in U Sieber, M Wade (eds), Structures and Perspectives of European Criminal Justice Vol 1 (Berlin, Dunker and Humblot, 2012). 50 Engelhart (n 27) III.A.1. 51 See Weyembergh et al (n 28) III.A.1. 52 Available at www.admin.ch/ch/e/rs/311_0/index.html. 53 Konkordat über die Rechtshilfe und die interkantonale Zusammenarbeit in Strafsachen of 5 November 1992. 54 Gless, Wenneckers (n 34), IV.B.1. 55 Ibid, IV.B.1. 49

Six Key Questions 795 via a complaint to the Federal Court in accordance with Article 361 of the Swiss Criminal Code in combination with Article 252 § 3 of the Federal Code of Criminal Procedure. This Swiss system bears testament to the conflict between territorial sovereignty and the need for cooperation driven by a union to which all component states or cantons agreed, as well as by the suspect’s right to a speedy process.56 It has now been rendered archaic by the agreement on a common code of criminal procedure, but remains of great interest and relevance to the debate on the EPP. It should be noted that this model was ultimately found to be unsatisfactory, even within the context of a small country. In addition to the more legally structural provisions described above, UK prosecution services will use informal request mechanisms when dealing with colleagues in another UK jurisdiction, even though these, of course, operate in accordance with different procedural rules. They appear to function adequately and are judged to operate satisfactorily.57 In the UK, within the investigation, the cooperative focus, including access to information (eg the Police National Computer containing, inter alia, DNA data, convictions, warnings and cautions)58 rests only with the police, which means prosecutors must make requests to their local police. This is, of course, explained also by the relative youth of the prosecution service in England and Wales (where previously, charging and decisions on how to proceed with cases were subject to a non-formalised, cooperative spirit, but as the relatively new institutional set-up adapts itself,59 this has been changed by the Crown Prosecution Service receiving formal statutory charging powers and taking over a police role, and thus formally now in a stronger position). Above all, informal cooperation between criminal justice agencies is dominant. Requests for specific acts are usually dealt with informally unless the question of resources arises, and the same applies to decisions to initiate common investigations. Prosecutors too are described as taking decisions informally across jurisdictions.60

4. Forum Shopping and Heterogeneous Interpretation of Rights The most ferocious criticism of the EPP is attached to the danger of forum shopping. The possibility of acting with different legal systems and of being able to hold a trial in the one with the more permissive legal regulation, is completely at odds with the idea of criminal proceedings as a balanced system of defence rights and powers of investigation. In the majority of federal systems within the EU there is no danger of forum shopping, insofar as the various prosecutors act under the same constitution. For this reasons, as happens in Germany, the transfer of cases between different Länder is a purely administrative matter that has no other repercussions than purely statistical ones. Nevertheless, and even within this framework, the well-known sentencing differences which occur across Germany may well, however, create

56 Fundamentally the need for investigative bodies to cooperate with prosecutors is tied to the Beschleunigungsgebot (the principle that acceleration of proceedings is necessary) resulting from Art 29 para 1 BV, of the ECHR, anchored expressly into some cantonal criminal procedure codes—see Gless, Wenneckers (n 34), III.F. 57 See Spencer, Mancuso (n 11), III.A.1. 58 Ibid, III.A.2. 59 Spencer, Mancuso (n 11), III.A.3. 60 Ibid, IV.A.1.c., d. and IV.B.1.

796 Federal Criminal Law and the EPPO factual reasons for a defendant to benefit from having their case heard in a certain jurisdiction, but this is currently not considered a legal-rights related matter. Switzerland and the UK are the only states where it is possible to use forum shopping, and mechanisms have appeared in both to counter this danger. In Switzerland this was clearly dealt with by the breach of the locus regit actum principle where a prosecutor acted ex territoriam. This system does not however eliminate all danger of forum shopping. Thus if a prosecutor exercised jurisdiction in another territory and in doing so gathered evidence via a method that was in fact proscribed in that jurisdiction, it would be possible to use this evidence in the prosecutor’s own jurisdiction (according to whose rules the evidence had been gathered). However, should it be decided to pass the case to the jurisdiction in which the evidence was gathered, this evidence would not be admissible. This infringement could give grounds for an appeal to the Federal Court. In UK jurisdictions, the courts gloss over such problems, allowing the more prosecutionfriendly rules of one state to be enforced or accepted in another,61 and the mutual recognition system in use fundamentally highlights the trust shown in each other’s systems, even if individual rights situations may mean different levels of protection are provided at specific stages of the criminal process.62 Nevertheless, any deliberate attempt by a jurisdictional agency to divert a case to another jurisdiction with more favourable rules can be stopped by abuse of process proceedings.63 The situation is very different in the USA. Despite the jurisprudence of the Supreme Court on matters concerning fundamental rights, there are still notable differences between the various states. As is well known, the Supreme Court of the United States was for a time very reluctant to transfer the Bill of Rights to the respective states. When it took the decision to apply the Bill at the start of the 1960s, it decided to what extent it was applicable in each state. Thus, for example, the Supreme Court still considers to this day that the guarantee of a grand jury intervention, envisaged in the Fifth Amendment, in order to prepare the indictment, is not in force in individual states, for which reason it is only applicable in federal trials. Nevertheless, in reality, in the United States the guarantees envisaged by the constitutions of the various states are greater than those of the Federation. The list of ‘lesser guarantees’ in federal law is revealing:64 the requirements for interception of communications are minor; ‘preventive custody’ can be ordered until the hearing is held: federal law permits convictions on the basis of the testimony of an accomplice, even though it may contradict the testimony of the accused; in the federal jurisdiction the defence counsel has neither the right to receive a list of witnesses from the government, nor to interview prosecution witnesses before the hearing, whereas in the majority of states, laws guarantee these sorts of rights; the testimony of the co-accused is sufficient as evidence in federal law. Equally, federal law is much more severe than state law, both because of the level of its sanctions and because of the more severe prison sentences.65 In this situation of notable divergences, the

61 See R v Manchester Stipendiary Magistrate ex p Granada Television Ltd and R v McNab described in Spencer, Mancuso (n 11), IV. 62 With the theoretical possibility that a defendant can get the worst of both worlds—see Spencer, Mancuso (n 11), IV. 63 Ibid, IV. 64 See SS Beale, ‘Reporter’s Draft for the Working Group on Principles to Use When Considering the Federalisation of Criminal Law’ (1995) 46 Hastings Law Journal 1301; US Dept of Justice, Fighting Urban Crime: The Evolution of Federal-Local Collaboration (NCJ 197040, Dec 2003) 3. 65 See the table on the advantages of prosecution at a federal level, in Miller, Eisenstein (n 41), 248.

Six Key Questions 797 system in the United States contemplates forum shopping as an advantage that should be used to the benefit of the federal jurisdiction, rather than a danger. For this reason, the possibility of using the weaker guarantees (Ability and Willingness to Prosecute Effectively)66 of federal law and of obtaining more effective sentences because of federal law’s more severe penalties (Probable Sentence Upon Conviction) figure among the criteria of the Principles of Federal Prosecution67 for assigning a case to federal or state justice.68 Support is found for this possibility of forum shopping in a doctrine on evidence obtained illegally in another jurisdiction, which is radically opposed to that which we have seen for example in Switzerland. It is possible to convict at a federal level on the basis of evidence obtained illegally according to state law, provided the submission of the evidence complies with federal law. The same happens when the arrest, search or confiscation infringe state but not federal law. An illustrative case in this field is United States v Santa,69 in which a law enforcement agent made an arrest on the basis of an arrest warrant that had expired but was still present on the system due to computer error. In the course of the arrest, three grams of cocaine were found. According to New York state law, the arrest was illegal, which led to the annulment of proceedings, in contrast to the federal proceedings, under which the case was finally heard even though it was a minor crime. The Second Circuit court upheld the conviction, with one dissenting opinion that made the point that the doctrine appeared excessive for the prosecution of street crime of lesser importance.

5. Conflicts of Competencies Between EPPO and Member States Even though in some EU states, whether a case is attributed to federal justice or to one state or another may hardly be relevant and could be treated as a purely administrative question, it is nevertheless a matter of great importance where different legal systems exist. With regard to the EPP, and bearing in mind the effective right to a fair defence, to be accused by a city or a state prosecutor is in no way comparable to prosecution by a supranational prosecutor. The exemplary cases are those that are known as mixed cases. Why, for example, should Spain hand over the investigation of a case concerning subsidies in which a member of the government is involved to a European prosecutor? From the above, it may be assumed that despite opting for a strict definition of the competencies of each prosecutor, on the basis of a list of offences, there is a strong possibility of conflict. Perhaps for this reason, Article 28 of the Corpus Juris70 grants competency to 66 Ability and Willingness to Prosecute Effectively: ‘legal or evidentiary problems that might attend prosecution in the other jurisdiction. In addition, the Federal prosecutor should be alert to any local conditions, attitudes, relationships, or other circumstances that might cast doubt on the likelihood of the state or local authorities conducting a thorough and successful prosecution’. 67 Probable Sentence Upon Conviction. The ultimate measure of the potential for effective prosecution in another jurisdiction is the sentence, or other consequence, that is likely to be imposed if the person is convicted. In considering this factor, the government attorney should bear in mind not only the statutory penalties in the jurisdiction and sentencing patterns in similar cases, but also, the particular characteristics of the offense or, of the offender that might be relevant to sentencing. The attorney should also be alert to the possibility that a conviction under state law may, in some cases result in collateral consequences for the defendant, such as disbarment, that might not follow upon a conviction under Federal law. 68 See US Principles of Federal Prosecution (n 36). 69 United States of America v Anthony Santa 180 F 3d 20 United States Court of Appeals, Second Circuit, Decided 2 June 1999. 70 Delmas-Marty, Vervaele (n 20).

798 Federal Criminal Law and the EPPO the EJC at the request of the EPPO, the accused or a national judicial authority to clarify conflicts of competency relating to the application of the rules that establish the principle of European territoriality, pertaining to the European Prosecutor. These conflicts have to be set before a national judicial organ, which is only obliged to refer the question to the EJC when no further appeal may be heard on its decisions (Article 28c of the Corpus Juris). While contemplating this possibility of an appeal,71 the Green Paper points out that it is necessary to organise mechanisms for consultation between the European Prosecutor and the national authorities. As we have already seen, more than a few federal systems have established mechanisms of cooperation to decide the attribution of competencies through dialogue. The option submitted in both the Corpus Juris and in the Green Paper to submit the competency of the EPP to judicial control is not entirely a majority option within the federal systems. As we have seen, despite the importance attributed to the assignation of the case, judges in the USA tend to be deferential to prosecutorial discretion on this point, as they consider it a discretional question.72 Judicial control is indeed to be found in Switzerland.73 This is not the case in Mexico, as it is considered a discretional power of the Federal Public Ministry, but judicial control does exist in Latin America, in Argentina and in Brazil, where this competency has been attributed, after a long and controversial debate, to the Federal Supreme Court. The argument here was that to have left competency in the hands of the prosecutor general of the Republic, as had been done, would have led to the establishment of an incompatible hierarchical relation with the Constitution that is grounded in the principle of the autonomy of each state.74

6. Ne Bis in Idem It is not easy in a comparative study to determine what is understood exactly by ne bis in idem. For the purpose of this work, we begin with a specific definition that includes its substantive as well as its procedural aspects. From the substantive point of view, this principle is interpreted as the right not to have two sanctions imposed for the same act, or at least to receive a proportional sanction in which the authority that imposes the second penalty takes account of the fact that a first sanction has already been imposed. The factual concept of substantive ne bis in idem is normative. The same act is not an act in the historic sense, but in the light of a particular criminal offence that protects a specific legal right. In procedural terms, the same act means the impossibility that two or more successive or simultaneous proceedings are conducted for the same acts. Here, the basis of the factual concept—unlike the situation, for example, in Spain—is a factual historic or natural concept.

71

The Green Paper (n 23), 170. L Misner, ‘Recasting Prosecutorial Discretion’ (1996) 86 Journal of Criminal Law and Criminology 717–77; R Heller, ‘Selective Prosecution and the Federalisation of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion’ (1997) 145 University of Pennsylvania Law Review 1314. 73 See Gless, Wennecker (n 34), IV.B.1. 74 LF Gomes, ‘Conflito de atribuiçoes entre MO Federal e MP estadual, de quem é a competencia para dirimil-lo’ (2006) 1 Jus Navegandi no 931. 72

Six Key Questions 799 As is well known, EU law contains quite an advanced regulation of the principle of procedural ne bis in idem. On the basis of the Gozutork case,75 the ECJ has established a reasonably complete regulation of procedural ne bis in idem, of a horizontal nature. In other words, one which affects the different state systems, but which could be a good starting point for the future regulation of ne bis in idem between the state and the supranational system. In this field, the Council Regulation on the protection of the European Communities’ financial interests has for some years contained a regulation of ne bis in idem, between supranational criminal and administrative sanctions, from which relevant points may be taken for the regulation of the EPPO; particularly the possibility of continuing the proceedings that were suspended because they were not a priority, provided the facts proven in the first trial are respected (Article 6.2 of the Council Regulation on the protection of the European Communities’ financial interests). The fact that ne bis in idem is without doubt a fundamental European right distances it in the first place from systems such as the North American one, in which the prohibition of double jeopardy and double sanctions operates neither at a state-federal level, nor between the various state systems. The USA is not the only example of a federal state that does not recognise the principle. In Argentina, although priority is given to the federal jurisdiction, national proceedings may take place simultaneously alongside those of the states, provided that the exercise of the respective jurisdictions in the defence of the accused is not hindered. The possibility of dual proceedings is compensated later on by the need to unify the punishments, by a similar system to the principle of computation.76 Even in a country with a similar legal culture, such as Switzerland, some aspects of ECJ jurisprudence are not clear to this day; for example, what type of decision other than a judgment can conclude the proceedings. A case of ne bis in idem in the UK would be subject to a defence of abuse of process.77 In this context, the regulation of the principle of ne bis in idem in the Corpus Juris is surprising, because it proposes an important relaxation of the principle, allowing a second trial if it is at a federal level. In fact, whereas the national criminal authorities cannot prosecute those acts already brought to court by the European prosecutor, the European prosecutors can prosecute facts judged in the national legal orders, by applying the quantum principle (Article 18). The Green Paper puts an end to this possibility by underlining that the EPP will not institute proceedings against people that have been declared innocent or convicted through firm criminal sentences, whose cases have been stayed or which have involved plea-bargaining. Following the jurisprudence of the ECJ on ne bis in idem, the regulation of the Corpus Juris is no longer tenable. One aspect that, as we have seen, is admissible in other federal systems is the possibility of conducting two simultaneous investigations into the same act: at federal and at state level. Although the jurisprudence of the ECJ has yet to cover this question, the primacy that in the Corpus Juris, as well as in the Green Paper is always accorded to supranational proceedings prevents simultaneous dual proceedings. The non-concurrence of two proceedings for the same acts is only guaranteed when an effective system exists for the exchange of information, along the lines discussed earlier.

75 76 77

Joint cases C-187/01 and C-385/01 Gozutok and Brugge [2003] ECR I-01345. See Arts 19–21 Argentine Criminal Procedural Code http://wings.buffalo.edu/law/bclc/arg1.htm. See Spencer, Maracuso (n 11), II.D.2 and IV.

800 Federal Criminal Law and the EPPO In this sense, the German and Swiss approaches may be useful. Germany’s clearly structured Strafverfahrensregister database is designed to gives its police and prosecution service centralised access to information on ongoing proceedings.78 German law relating to the ne bis in idem principle is binding and prevents a further case, or indeed any further coercive measures being taken based upon the same facts once a case has been concluded. The Strafverfahrensregister also ensures that this is also enforceable in practice. Nothing prevents any number of prosecutors from investigating in parallel. Prosecutors can coordinate their work by referring to information held on the Strafverfahrensregister. Where a court case has formally been opened, however, cases must be united for the trial to proceed.79 In Switzerland80 the duty of law enforcement agents to inform the prosecution service or investigative judge of any sign of a crime they have discovered ensures that guidance relating to a duplication of work takes place effectively, which naturally helps to avoid problems of ne bis in idem.

D. LESSONS FOR THE EPP

Valuable lessons may be drawn from the six different points that have been discussed, based on experience, for the future regulation of the EPPO. The first of them and the most important is the excessive importance that the principle of hierarchy has when configuring the relations between national and European prosecutors. The hierarchy does not always imply greater efficiency insofar as it can generate numerous tensions and conflicts, above all in the recently created EU common judicial area. As we have seen, many federal systems are grounded in the independence of state and federal prosecutors, and in the need to articulate mechanisms for dialogue. Abandoning or relaxing the hierarchical principle does not imply rejection of the primacy of supranational law or the priority of supranational proceedings. Hierarchy and primacy relate to different aspects. Whereas the hierarchy serves to organise the relations between actors, primacy is a criterion that establishes the relations between legal norms from various independent systems. Hierarchy is not, therefore, automatically inferred from primacy. Whether relations of subordination or independence are established, what appears essential in view of the experience of many federal systems is to institute organs of cooperation. An Advisory Council, constituted by the European Prosecutor and by a high representative of the national prosecutors’ offices, would help to foster an atmosphere of cooperation. This Advisory Council, through its Guidelines, could establish the general guidelines on criminal policy. For example, it could point out which circumstances are required to proceed to plea bargaining or transactions, the criteria for the assignation of the case to the European or to national prosecutors, sentencing criteria, etc. These Guidelines, the outcome of negotiation, would be binding on the EPP and the national prosecutors, and logically would also serve the national courts as well as the ECJ when interpreting the positive regulation of the EPP. A number of European jurisdictions feature advisory boards guiding prosecutorial policy. Naturally, these usually answer politically to a policy setting institution, usually the respective member state government or legislature. Such 78 79 80

See Engelhart (n 27), II.B.5 and IV.B.1. Ibid, IV.E. See Gless and Wenneckers (n 34), II.A.3, 10.

Lessons for the EPP 801 a structural affiliation, ensuring political accountability and thus democratic legitimacy, must naturally also be identified for any such EPP-related body. In this context, it is equally clear that the creation of the EPP does not imply the disappearance of Eurojust. The experience of the federal systems shows that although the intention is to eliminate cooperation, allowing the federal prosecutors to act throughout the EU, frequent recourse to cooperation would continue. Equally, Eurojust, on the basis of the Advisory Council Guidelines, could be constituted as a permanent body for mediation and problem-solving. So, for example, although it is sufficient to leave the resolution of conflicts of competencies in the hands of the ECJ, there could be a prior obligation to attempt mediation through Eurojust. The role of Eurojust would be no less important in the exchange of information. As we have seen, information flows are necessary for effective assignation of cases and to avoid duplication of proceedings and in consequence ne bis in idem. If the legal interests of concern to an EPP are to be comprehensively protected, analysis of information shared in this way is furthermore necessary to ensure the avoidance of negative conflicts of jurisdiction. The assignation of cases is a key matter for the efficiency of the entire system. The existence of a list of offences does not resolve this problem, proof of which is the North American system, in which the expansion of federal criminal law over recent decades has been so aggressive that there is no single complete list, not even in the US Code81 which compiles all federal offences82 and which serves to define criminal competencies clearly at a federal and at a state level. It is therefore necessary to establish substantive criteria. The principle of subsidiarity that is present in many systems, from the Italian Anti-Mafia Prosecutor’s Office to the Principles of the USA, is an essential criterion. To assume this principle implies a reversal of the way in which the distribution of competencies is proposed, between the EPP and the national prosecutors in the Corpus Juris or in the Green Paper. The new logic of the system would be to demonstrate that the intervention of the European prosecutor should notably increase the efficacy of the investigation and demonstrate the existence of added value in the way that it has been handled in Belgium. This quantitative restriction of the EPPO would, on the one hand, focus its activity solely on serious and complex cases and, on the other, allow a better exercise of the rights of defence. The decision over whether a case is subject to supranational investigation makes an effective defence much more complicated, insofar as it situates the investigation in a normative framework of which the majority of legal operators, for example the lawyers, are not sufficiently knowledgeable. The mixed cases, as the North American Principles teach us, cannot be resolved from the purely abstract perspective of which legal right is protected, as might be understood from the Green Paper.83 The concrete characteristics of the author or of the victims cannot be sidelined. The Advisory Council Guidelines should provide much more detailed criteria in these cases. A compromise solution, already pointed out in the Green Paper, would be to create a joint investigative team for these cases. 81 The US Code (available at eg www.law.cornell.edu/uscode/usc_sup_01_18.html) gives a good rendering of the number of offences that fall within the competency of federal courts. Thus, for example, street crime, counterfeiting, driving under the influence of alcohol or drugs, assassination of judges, conspiracy, electoral crimes, robbery, espionage, censure, fabrication of explosives, extortion, fraudulent credit transactions, kidnapping, homicide, etc. 82 JS Baker, ‘Jurisdictional and separation of Powers strategies to limit the expansion of federal crime’ (2004– 2005) 54 American University Law Review 545. 83 See Green Paper (n 23), 127.

802 Federal Criminal Law and the EPPO In reality, the EPP could consider various levels of intervention. Three types of centralisation have been identified in the European federal systems: one concerns truly centralised prosecution services, found in federations which represent the interests of the nation state, defined as relating to certain offences only, but where these federal prosecutors have the power to take over cases from prosecutors whose jurisdiction is more limited. Another type is the weaker prosecution structure, in which prosecutors are nevertheless obliged to report any relevant cases to a central authority, in order to ensure coordination and proper prosecution from the perspective of the state as a whole, whilst the final, weakest form is merely an expression of the need for expertise and nationalised support to be offered to prosecutors. The Italian Anti-Mafia Prosecutor’s Office exemplifies this type of gradual intervention very well: in the first place, it supervises and provides support, and only in a second phase, if it considers it necessary, will it decide to take on the investigation of the case. The experience of the USA shows that forum shopping is a strategy that must be curtailed, but the European prosecutor cannot be prohibited from considering in which jurisdiction its proceedings might have greater possibilities to be effective, dissuasive and proportional. This triad has been an informative principle of European criminal law ever since the Greek Maize judgment.84 The possibilities and the dangers of forum shopping are very different according to each EPP model. If it operates with its own substantive and procedural law, along the lines of the Corpus Juris, the dangers of forum shopping are minimised or, in other words, reduced to a federal-state level, if in contrast it acts on the laws of each Member State, the possibility of forum shopping is enormous, with regard to the selection of the punishment and the most appropriate process. On this point, Article 33 of the Corpus Juris85 shows the principle to follow with regard to the most dangerous aspect of forum shopping, which is the use of evidence obtained illegally in other more tolerant systems. Evidence may only be valid if it can overcome a double hurdle: applicable national law and the fundamental rights of the EU.

84 85

Case C-68/88 Commission of the European Communities v Hellenic Republic [1989] ECR I-02965. n 20.

22 The System of Vertical Cooperation in Administrative Investigations Cases JUSTYNA ŁACNY, LECH PAPRZYCKI, ELEONORA ZIELIN´SKA

A. INTRODUCTION

C

ONDUCTING LEGAL PROCEEDINGS in a case involving public funds, even when the case is relatively simple and a single body of law applies to it, usually requires the cooperation of different authorities. Such cooperation brings with it questions of competence and coordination. In more complex cases, cooperation issues may become a decisive factor in the accomplishment or failure of proceedings. This is particularly true of cases governed by provisions originating from national and from international law, where various authorities having special legal statuses and representing different legal cultures and interests are involved, whilst the funding in question originates not only from the national budget but also from the external sources. Such a scheme is characteristic of legal proceedings conducted in cases involving EU budgetary funds, as they usually involve the EU and the national legal provisions, monies and authorities. Currently the EU budget is covered from four main sources. The first is agricultural levies and sugar levies; the second is fees collected according to the common customs tariff; the third is payments based on revenue from VAT; and the fourth is direct payments of the Member States, calculated according to their gross national income. Revenue-related irregularities and frauds are mostly connected with the first three sources of funding. The fourth source, direct payments, is less vulnerable to illegal behaviour, since such payments rest exclusively in the hands of the national administrations. In practice, most revenuerelated losses occur from customs irregularities and frauds, related to the import of goods from third countries as well as with the transit procedure, through the EU customs territory. With this in mind, in this paper we will limit ourselves to indicating problems of cooperation in these areas. As regards expenditure from the EU budget, almost 80 per cent of this budget is spent on implementation of the Common Agricultural Policy (CAP) and the cohesion policy.1 Therefore these two EU policies require special attention. For this reason this report focuses on them, leaving aside a wide spectrum of other EU policies financed by the EU budget.

1 It may be added that until 1992, expenditures financing the CAP represented nearly 49% of the EC budget, but by 2013 they were expected to decrease significantly, down to 32%. In contrast, the amounts for the cohesion policy represented 17% of the EC budget in 1988 and are projected to reach almost 36% in 2013. What remains unchanged is that that these two EU policies, taken together, consume most of the EU budget expenditures.

804 Cooperation in EU Subsidy and Custom Cases It is worth underlining that although the CAP and the cohesion policy differ to a large extent as to their history, political objectives and implementation schemes, they nevertheless share some common features, as they are managed by the Member States, acting under the supervision of the Commission, which is legally labelled as a shared management. This scheme of implementation implies close relations and cooperation between national and EU authorities. They cover a range of situations, starting from the EU policies’ programming, through selecting projects and investments to be financed, verifying individual applications for assistance, executing operations by beneficiaries, making payments from the EU budget to national budgets and then to beneficiaries. In both kinds of case, harmful for either the income or for the expenditure side of the EU budget, there is close cooperation between the EU and national authorities, particularly in enforcement actions. These consist of performing controls, audits and investigations, and if irregularities or frauds are discovered, launching recovery procedures claiming the funds from the national budget to the EU budget, and initialising administrative and criminal proceedings to impose sanctions. For this reason, the cooperation problems resulting thereof will be discussed together. The notion of administrative investigation, which is crucial for this report, was defined by Regulation No 1073/99.2 It generally consists of different operational activities performed by the European Anti-Fraud Office (OLAF) aimed to find cases of irregularities and frauds harmful to the EU budget. This report focuses on the cooperation of national authorities of the Member States and OLAF in the process of conducting administrative investigations by the latter. Since the role, mandate and legal framework of OLAF are already well described elsewhere,3 this report will consider the main issues arising in the cooperation in administrative investigations. Given that the cooperation in administrative investigations conducted by OLAF is an important element of the system established under EU law to protect EU financial interests, as envisaged by Article 325 of the Treaty on Functioning of the European Union (TFEU), this report also emphasises the roles of other national and EU authorities involved in proper aggregation of the Union’s budgetary income, spending and protecting the financial interests and benefits flowing from the OLAF cooperation in that framework. It often happens in practice that the criminal investigation and administrative investigation overlap. Therefore the cooperation of Europol, Eurojust and the European Judicial Network in the fight against crime affecting the European Union’s financial interests, and their cooperation with OLAF and the competent authorities of the Member States, and 2 Regulation (EC) 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136/1. 3 S Gless, H Zeitler, ‘Fair Trial Rights And The European Community Fight Against Fraud’ (2001) 7(2) European Law Journal 219; W Hetzer, ‘Fight Against Fraud And Protection Of Fundamental Rights In The European Union’ (2006) 14/1 European Journal Of Crime, Criminal Law And Criminal Justice 20; P Langbroek, O Jansen, Defence Right During Administrative Investigations. A comparative study into defence right during administrative investigations against EU fraud in England, Wales, Germany, Italy, the Netherland, Romania, Sweden and Switzerland (Antwerp, Intersentia, 2007); N Lavranos, ‘The Limited, Functional Independence of the ECB’ (2004) 29(1) European Law Review 115–23; S de Moor, ‘Transnational Investigations and the Judicial Follow-Up to the OLAF Inspection Reports under the Existing Cooperation Instruments’ in JAE Vervaele (ed), European Evidence Warrant: Transnational Judicial Inquires in the EU (Antwerp, Intersentia, 2005) 47; J Wakefield, ‘Good Governance and the European Anti-Fraud Office’ (2006) 12 European Public Law 549; S White, Protection of the Financial Interests of the European Communities: The Fight against fraud and corruption (The Hague, Kluwer Law International, 1998); S White, ‘Rights of the Defense in Administrative Investigations: Access to the File in EC Investigations’ (2009) 2(1) Review of European and Administrative Law 57.

Main Notions 805 the benefits flowing from the OLAF cooperation in that framework, must all be taken into account.

B. MAIN NOTIONS

1. Irregularity The notion of irregularity is defined in Article 1(2) of Regulation No 2988/954 as follows: irregularity shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure.

It follows from this definition that an irregularity covers all behaviours, intentional or not, acts and omission, consisting of any infringement of a provision of Community law (since the Treaty of Lisbon: EU law). Although according to this definition the objective consequence of irregularity must always have been an infringement of an EU law provision, it seems commonly accepted by the Member States5 that this prerequisite should be understood broadly, as resulting not only from an infringement of EU law provision, but also from infringement of national law provision, adopted to ensure full effect of the EU law provision and aimed at protecting EU financial interests. It may appear that this rather theological interpretation is also recognised by the ECJ, as it has stated in cases concerning the cohesion policy6 that cancellation or withdrawal of financial assistance granted from the structural funds (financed from the EU budget) may result from infringement of EU or national law provisions setting the frames for this assistance. However, it may be remarked that in the cohesion policy, projects are financed by the EU budget as well as by the national budget (the principle of additionality), thus EU law and national law equally apply. As a consequence, when adjudicating in these cases, the ECJ might have had that characteristic of the cohesion policy in mind, which would justify its reference to the national law, and not a broadening of the scope of the notion of irregularity, as established in Article 1(2) of Regulation No 2988/95. However, as far as the CAP is concerned, the ECJ7 has also stated that the beneficiary may be obliged to repay EU funds obtained irregularly, even if no EU law provision was breached, but the national court found that under national law provision there was a practice of abuse of law. In conclusion it may be stated that there is a tendency towards a wide understanding of the prerequisite ‘infringement of an EU law provision’, as also encompassing a national law provision. This statement is particularly significant on the ground of analysed EU policies,

4 Council Regulation (EC, Euratom) 2988/95 of 18 December 1995 on the protection of the European Communities financial interests [1995] OJ L312/1. 5 Working document of Advisory Committee for the Coordination of Fraud Prevention (COCOLAF) dated 11 April 2002 on the requirement to notify irregularities, 5. See also Langbroek, Jansen (n 3) ch 2, point 2.2.1. 6 Case C-199/03 Ireland v Commission [2005] ECR I-08027, para 2934; Case C-240/03 P Comunità montana della Valnerina v Commission [2006] ECR I-00731, paras 76 and 97. 7 Case C-515/03 Eichsfelder Schlachtbetrieb GmbH v Hauptzollamt Hamburg-Jonas [2005] ECR I-07355.

806 Cooperation in EU Subsidy and Custom Cases where important load of national legislation regulates conditions for spending the funds of the EU budget, infringement of which must be treated as an irregularity. The definition of irregularity also foresees that an act must have caused or might have caused an effect of prejudicing the EU budget.8 Thus it is not necessary that there was a real damage in the EU budgetary resources, as the concrete risk of such damage suffices. In addition a discussed prerequisite requires that the prejudicial effect to the EU budget may either consist of reducing or losing revenue accruing from own resources (damage to income side of the EU budget) or by an unjustified item of expenditure (damage to expenditure side of the EU budget). Therefore damage, or its risk as a result of an irregularity, may either concern incomes or expenditures of the EU budget. From the definition of irregularity it also follows that this can only be perpetrated, actively or passively, by economic operators. The notion of an economic operator is provided for in Article 7 of Regulation No of 2988/95, according to which it is: natural or legal persons and the other entities on which national law confers legal capacity who have committed the irregularity and to those who are under a duty to take responsibility for the irregularity or to ensure that it is not committed.

Accordingly, the notion of economic operator encompasses two groups of entities, first, those who have actually committed an irregularity, and secondly these who have not committed it personally, but occupied a special function and therefore were responsible to prevent its occurrence. Although Regulation No 2988/95 remains silent on requirements of a causal relationship between an infringement and a real or potential damage resulting from that infringement, such a prerequisite does not raise doubts. What is questionable, however, is its legal characteristic. One could indicate two solutions in this respect. First, since EU law does not provide any constraints in this area, this could mean that this issue is left to the procedural autonomy of the Member States. Secondly, one may recall the ECJ rulings on a causal relationship, elaborated in cases concerning liability in damages, where it is stated that there should be a direct (adequate) causal link between infringement and damage.9 Neither the definition of irregularity nor any other EU legal provision foresee the requirement of economic operator’s fault (culpa) as a prerequisite to classifying this as an irregularity. That would mean that detection of irregularity depends on the objective preconditions mentioned above. EU law does not provide for specific requirements as to the authorities responsible for detecting irregularities, but merely states that it is the responsibility of the Member States to prevent and deal with irregularities and frauds (Article 325 TFUE and Article 53b of the Financial Regulation10). That means that ascription of duties in that respect is left to the autonomy of Member States. Regulation 2988/95, providing for a definition of irregularity, also contains provisions describing consequences of its detection. Accordingly, any irregularity involves withdrawal of the improperly obtained advantage. In reference to revenues it means the obligation

8

Definition also covers budgets managed by the EU. Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029, para 51. 10 Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1. 9

Main Notions 807 to pay the amounts due, and in relation to expenditure an obligation to repay the money wrongly received (Article 4 of Regulation No 2988/95). Intentionally committed irregularities, or those caused by negligence may, however, also lead to the administrative penalties listed in Article 5 of Regulation No 2988/95.11 Therefore, once an irregularity is established, it necessitates recovery actions, which are independent from the culpability question, since Article 4 of Regulation No 2988/95 establishing the obligation to recover states plainly that ‘any irregularity shall involve withdrawal of funds’. An objective character of the recovery action was also confirmed by the ECJ, which stated in Emsland-Stärke12 that ‘obligation to repay is not a penalty, but simply the consequence of a finding that the conditions required to obtain the advantage derived from the Community rules were created artificially, thereby rendering the advantage received a payment that was not due and thus justifying the obligation to repay it’. The culpability, however, would be assessed upon the imposition of administrative penalties, as Article 5 of Regulation No 2988/95 states that they may be imposed when irregularities were intentional or caused by negligence.13 Culpability will also be appraised once the nature of irregularity is such that it is an act classified under the criminal law, namely as a fraud defined in the PIF Convention,14 leading to criminal sanction. Thus it may be concluded that under EU law, detection of irregularity should always lead to recovery actions (Article 4 of Regulation No 2988/95), but it may also be a cause for imposition of administrative penalties (Article 5 of Regulation No 2988/95) and criminal penalties (Article 1 of the PIF Convention).15 The notion of irregularity should be distinguished from the notion of fraud affecting the EU financial interests. The conducts qualified as fraud is defined narrower in comparison to the definition of irregularity. Not going into details of the definition of fraud, which is analysed by Rosaria Sicurella in this volume,16 it should be said here that pursuant to Article 1 of the PIF Convention, such a fraud should consist of at least (a minimum 11 Administrative penalties listed in that provision include: payment of an administrative fine, payment of an additional sum which may not exceed the level strictly necessary to constitute a deterrent, total or partial removal of an advantage granted, even if the economic operator wrongly benefited from only a part of that advantage, or exclusion from, or withdrawal of, the advantage for a period subsequent to that of the irregularity and other penalties of a purely economic type provided for by EU law. The limitation period is four years as from the time when the irregularity was committed. In the case of continuous or repeated irregularities, the limitation period runs from the day on which the irregularity ceases. In the case of multiannual programmes, which are typical for the cohesion policy, the limitation period in any case runs until the programme is definitively terminated. 12 ECJ Case C-110/99 Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas [2000] ECR 2000, I-11569, para 56. 13 It is stipulated that these penalties must take account of the nature and seriousness of the irregularity, the advantage granted or received and the degree of responsibility. 14 Council Act of 26 July 1995 drawing up the Convention on the protection of the financial interests of the European Communities [1995] OJ C316; Explanatory Report on the Convention on the protection of the European Communities’ financial interests (Text approved by the Council on 26 May 1997) [1997] OJ C191; First Protocol of 27 September 1996 to the Convention on the protection of the European Communities’ financial interests [1996] OJ C313; Protocol of 29 November 1996 on the interpretation, by way of preliminary rulings, by the ECJ of the European Communities of the Convention on the protection of the European Communities’ financial interests [1997] OJ C151/1; Second Council Protocol of 19 June 1997 to the Convention on the protection of the European Communities’ financial interests [1997] OJ C221/1; Explanatory Report on the Second Protocol to the Convention on the protection of the European Communities’ financial interests (Text approved by the Council on 12 March 1999) [1999] OJ C91/1. 15 It must be added that other EU regulations provide for additional different consequences of detecting irregularities, eg Member States are obliged to inform the Commission on such findings (reporting obligation) and if irregularities have a systemic character, the latter may suspend payments made to the Member States or reduce the amount of national allocation. 16 See ch 24 of this volume.

808 Cooperation in EU Subsidy and Custom Cases standard) of any intentional act or omission relating to the use of presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from general budget of EU or budgets managed by or on behalf of the EU. As a fraud may in addition be qualified a non-disclosure of information in violation of a specific obligation, with the same effect or the misapplication of such funds for purposes other than those for which they were originally granted. At first sight the requirement of intentional acting distinguishes the definition of fraud from the definition of irregularity. However, from the point of view of liability this difference seems to be superficial since only irregularity intentionally committed (or, in addition, those caused by negligence) may lead to the administrative penalties listed in Article 5 of Regulation No 2988/95. To conclude the analysis of the notion of irregularity, one may indicate practical difficulties which national authorities have in this respect. They include questions of eg beneficiary liability, application of the ne bis in idem principle, if irregularity is also classified as a fraud, or Member State obligation to notify the Commission on irregularities if its national bodies, and not a beneficiary, are responsible for its occurrence, eg due to the improper implementation of public procurement directives to the national law. The difficulties, in certain cases, have led the national courts,17 including the Polish Supreme Court,18 to seek the assistance of the ECJ as to the exact scope of the obligations in question under the preliminary question regime (Article 267 TFEU).

2. Income Side of the EU Budget: Customs and Agricultural Levies Cases The definition of irregularities in customs and agricultural matters may be deduced from Article 2 of Council Regulation No 515/97,19 which defines customs and agricultural legislation. According to this provision customs legislation means the body of EU provisions and the associated implementing provisions governing the import, export, transit and presence of goods traded between Members States and third countries, and between Members States in the case of goods that do not have EU status or goods subjected to additional controls or investigations, for the purposes of establishing their EU status.

17 See joined cases C-278/07 to C-280/07 Hauptzollamt Hamburg-Jonas v Josef Vosding Schlacht, Kühl- und Zerlegebetrieb GmbH & Co (C-278/07), Vion Trading GmbH (C-279/07) and Ze Fu Fleischhandel GmbH (C-280/07) [2009] ECR I-00457; Case C-45/06 Campina GmbH & Co v Hauptzollamt Frankfurt (Oder) [2007] ECR I-02089; Case C-286/05 Reinhold Haug v Land Baden-Württemberg [2006] ECR I-04121; Judgment of 11 January 2007 in Case C-279/05 Vonk Dairy Products BV v Productschap Zuivel [2007] ECR I-00239; Case C-278/02 Herbert Handlbauer GmbH [2004] ECR I-06171; Case C-295/02 Gisela Gerken v Amt für Agrarstruktur Verden [2004] ECR I-06369. 18 Preliminary question of the Polish Supreme Court dated 27 September 2010 in Case V KK 179/10 concerned the legal qualification of sanction established in Regulation of the Commission no 1973/2004 of 29 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1782/2003 as regards the support schemes provided for in Titles IV and IVa of that Regulation and the use of land set aside for the production of raw materials [2004] OJ L345. See opinion of Advocate General’s opinion issue on 15 December 2011 (unpublished). 19 On mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [1997] OJ L82/1.

Main Notions 809 Under the notion of ‘agricultural legislation’ is understood the body of provisions adopted under the CAP and special rules adopted with regard to goods resulting from the processing of agricultural products. The customs and agricultural cases mean, for the aim of this report, any infringement of the above sets of provisions, which constitute or appear to constitute an irregularity.

3. Expenditure Side of the EU Budget: Subsidies Cases Unlike an irregularity, a subsidy case is not a legal term, as there is no legal definition of it, but a conventional term commonly used in the literature. A subsidy (also known as a subvention or grant) is a form of financial assistance paid to a private sector entity (eg producers, distributors) by a government to prevent the decline of that industry (eg as a result of continuous unprofitable operations) or an increase in the prices of its products or to encourage it to hire more labour (eg wage subsidy). Examples are subsidies paid to encourage the sale of exports, subsidies on some category of foods to suppress the cost of living and subsidies to support the expansion of farm production and achieve self-reliance in food production.20 In the EU, a subsidy is understood as a direct financial contribution, by way of donation, from the EU budget in order to finance either an action intended to help achieving an objective part of a EU policy or the functioning of a body which pursues an aim of general European interest, or it has an objective of forming part of a EU policy.21 From the financial point of view, most subsidies are granted to beneficiaries engaged at the attainment of the CAP and cohesion policy objectives. Therefore for the frames of this report a subsidy case will be understood as a case of irregularity (see section B1), suspended or detected, which concerns a subsidy paid from the EU budget to the national budget and then to the beneficiary in the framework of the implementing the CAP or the cohesion policy.

4. Administrative Investigation (a) Objectives An administrative investigation, which is a central notion for this report, was defined by Article 2 of Regulation No 1073/99 as well as Article 2 of the Regulation No 515/97. According to Regulation No 1073/99, the administrative investigation covers all inspections, checks and other measures undertaken by the employees of OLAF (OLAF inspectors) with the view to combat fraud, corruption and any other illegal activity affecting the EU financial interests, and to establish, when necessary, the irregular nature of the activities under investigation. Article 2of Regulation No 515/97 additionally states that the notion of administrative enquiry also covers examination of the irregular nature of operations which appear to violate customs or agricultural legislation, with the exception of any actions undertaken upon the request of, or under a direct mandate from the judicial authority.

20 21

PM Todaro, SC Smith, Economic Development, 10th edn (Prentice Hall, 2009) 839. http://ec.europa.eu/budget/explained/glossary/glossary_en.cfm.

810 Cooperation in EU Subsidy and Custom Cases Article 2 also provides that the notion of administrative enquiry covers EU missions in third countries. There are two types of administrative investigations conducted by OLAF: external investigations held in Member States and third countries (Article 3 of Regulation No 1073/99), and internal investigations performed within EU institutions, bodies, offices and agencies. Under no circumstances is OLAF competent to impose sanctions on entities charged with irregularities, fraud or other illegal behaviour harmful to the EU funds. In cases of external administrative investigations this would an obligation of national authorities (administrative, criminal or civil), in case of internal administrative investigation, disciplinary sanctions could be enforced by EU services. As this report is focused mainly on vertical cooperation, that is between the EU bodies and their national counterparts, the internal administrative investigations will not be analysed. Activities performed by OLAF in the Member States in the framework of external administrative investigations, called herewith ‘administrative investigations’, are intended to: (i) detect serious or transnational irregularities or irregularities that may involve economic operators acting in the several Member States, (ii) strengthen detection measures, when a situation in a Member State so requires, and (iii) assist in holding cases, at the request of the Member State concerned (Article 2 of Regulation No 2185/9622). It is thus clear that that there is a link between irregularities and administrative investigations launched by OLAF, as both concepts are focused on the protection of the EU financial interests: administrative investigations are conducted in order to protect these interests, and to that end find cases of irregularities. In conducting administrative investigations, OLAF acts independently from the Commission as well as from other authorities of the EU, although from the organisational point of view OLAF is an administrative part of the Commission (Article 3 Decision 1999/352). The independence of OLAF is ensured by activities of the Supervisory Committee23 and by the status of the Director-General of OLAF.24 22 Council Regulation (Euratom, EC) 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities [1996] OJ L292/2. 23 The Supervisory Committee is responsible for the regular monitoring of the discharge by the OLAF investigative function (Art 4 Decision 352/99). It reinforces OLAF’s independence by regular monitoring of the implementation of the investigative function. The Director-General of OLAF keeps the committee regularly informed of the OLAF activities, its investigations, the results thereof and the action taken on them. Where an investigation has been in progress for more than nine months, the Director-General of OLAF informs the Supervisory Committee of the reasons for which it has not yet been possible to wind up the investigation, and of the expected time for completion. The Director-General also informs the Supervisory Committee of cases requiring information to be forwarded to the judicial authorities of a Member State. At the request of the Director-General, or on its own initiative, the Supervisory Committee delivers opinions to the Director-General of OLAF concerning its activities, without however interfering with the conduct of investigations in progress. The Supervisory Committee is composed of five independent outside persons who possess the qualifications required for appointment in their respective countries to senior posts relating to the OLAF areas of activity. They are appointed by common accord of the European Parliament, the Council and the Commission. The term of office of members is three years, renewable once. In carrying out their duties, they shall neither seek nor take instructions from any government or any institution, body, office or agency (Article 11 Regulation 1073/99 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136). 24 The Director-General of OLAF is nominated by the Commission for a term of five years, which may be renewed once, after consultations with the European Parliament, the Council and the Supervisory Committee. He neither seeks nor takes instructions from any government or any institution, body, office or agency in the performance of his duties with regard to the opening and carrying out of investigations or to the drafting of reports following such investigations. If the Director-General considers that a measure taken by the Commission calls his

Main Notions 811 In addition, OLAF conducts coordination activities in order to facilitate operations undertaken by other administrative or judicial authorities and provides assistance to judicial authorities. These activities other than internal and external investigation are described as operations or operational activities. (b) Legal Framework The legal framework in which OLAF conducts administrative investigations consists in two layers: EU and national provisions. EU provisions may be classified, for reasons of simplicity, into two groups: horizontal acts, applicable to administrative investigations conducted irrespective of the EU policy or domain concerned, and sectorial acts, designed for the specific EU policy or area. Just to list them, the group of horizontal acts consists of: Regulations No 2988/95 and 2185/96 (general provisions on the protection of the EU financial interests establishing definitions of irregularity, administrative investigation and measures to be adopted once they are detected), Regulations 1073/99 and 1074/9925 (procedural rules on administrative investigations conducted by OLAF) as well as decision No 352/9926 (establishing OLAF)27 and the Financial Regulation, being the main secondary act in the area of EU budgetary law. Sectorial acts cover, inter alia: Regulation No 1150/200028 (resources system), Regulation No 1290/200529 (implementation of the CAP); Regulation No 1848/200630 (irregularities and recovery in CAP); Regulation No 515/9731 (assistance in customs and in the CAP) and Regulation No 1083/0632 (implementation of the cohesion policy). Most of these regulations are supplemented by enforcement rules. independence into question, he shall be entitled to bring an action against his institution before the ECJ. Before adopting any disciplinary sanctions against the Director-General, the Commission consults the Supervisory Committee. In addition, measures relating to disciplinary sanctions against the Director-General must be the subject of reasoned decisions, which is forwarded for information to the European Parliament and to the Council (Art 12 Regulation 1073/99 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136). 25 Council Regulation (EC, Euratom) 1074/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136/8. 26 Commission Decision 1999/352/EC, ECSC, Euratom of 28 April 1999 establishing the European Anti-fraud Office (OLAF) (notified under document number SEC (1999) 802) [1999] OJ L136/ 20. 27 It requires clarifications that procedures applied for conducting of administrative investigations by OLAF are established by Regulations 2988/95 and 2185/96 and refer to the investigative competences of the Commission, by decision 1999/352 establishing OLAF and by Regulations 1073/99 and 1074/99 providing rules directly applicable to OLAF. All these acts must be read and applied jointly, as applicable to conducting administrative investigation by OLAF, since it is clearly provided that OLAF exercises the investigation powers that Commission was entrusted in area of the protection of the financial interests of the EU (Art 1(1) Regulation 1073/99 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136). 28 Council Regulation (EC, Euratom) 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources [2000] OJ L130/1. 29 Council Regulation (EC) 1290/2005 of 21 June 2005 on the financing of the CAP [2005] OJ L209/1. 30 Commission Regulation (EC) 1848/2006 of 14 December 2006 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the CAP and the organisation of an information system in this field and repealing Council Regulation (EEC) No 595/91 [2006] OJ L355/56. 31 Council Regulation (EC) 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [1997] OJ L82/1. 32 Council Regulation (EC) 1083/2006 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 [2006] OJ L210/25.

812 Cooperation in EU Subsidy and Custom Cases While differentiation of sectorial legal acts is understandable as required, since the implementation of different EU policies necessitates measures matching their individual characteristic, the same could not rightly be stated of the horizontal acts. It would rather be expected that instead of being scattered in five different acts regulating the same domain (eg general concepts, procedures, measures adopted to protect the EU financial interests), they should rather be encompassed in a uniform body of law establishing general provisions on the issue at question, attaining the objectives of the certainty of law and transparency. This aim may be accomplished in the near future taking into account that legislative works on the regulatory framework of OLAF were conducted in 200633 and they may be changed in the light of the Lisbon amendments, including the possibility of establishing a European Public Prosecutor’s Office (Article 86 TFUE). One should not forget about other sources of law creating standards to be followed by OLAF once conducting administrative investigations, eg Charter of Fundamental Rights—which under the Treaty of Lisbon has a legal force equal to primary law and jurisprudence of the ECJ, particularly on fundamental rights, the staff regulation34 and the OLAF manual. National provisions are the second body of law applicable to administrative investigations. They are discussed later in this report. (c) Stages of Proceedings An administrative investigation is opened by a decision of the Director-General of OLAF, acting on his/her own initiative or following a request from a Member State. An administrative investigation is directed by the Director-General and in its framework checks and inspections are performed by OLAF inspectors. To initiate an administrative investigation, OLAF inspectors produce a written authorisation showing their identity and position, together with a document indicating its subject matter and purpose (Article 6 of Regulation No 2185/96, Article 6 of Regulation No 1073/99). In the framework of administrative investigation checks and inspections are performed which may concern, in particular, professional books and documents, such as eg invoices, pay slips, statements on material used and works done, bank statements held by economic operators, computer data, production, packaging, budgetary and accounting documents. They may also consist of physical checks and taking and checking of samples. Checks and inspections undertaken by OLAF inspectors in the frames of administrative investigations concern economic operators, that are natural or legal persons or other entities having legal personalities under national law (see section B1), where there are reasons to believe they have committed irregularities. OLAF inspectors may carry out checks and inspections on other economic operators. All economic operators are required to grant access to premises, land, means of transport and other areas used for business purposes (Article 5 of Regulation No 2185/96). While conducting administrative investigations OLAF inspectors are granted access to all required information and documentation under

33

http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=pl&DosId=194432. Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (Staff Regulations of Officials) [1968] OJ L56/1. 34

Main Notions 813 the same conditions as national administrative inspectors and must comply with national rues of procedures. Once an administrative investigation is completed, a final investigation report is drafted specifying the facts established, financial loss and findings of the investigation, including the recommendations on the actions to be taken. A final report and any useful related documents are sent by OLAF to competent authorities of the Member States. This constitutes admissible evidence in any proceedings in which its use proves necessary, under the same conditions as administrative reports drawn up by national administrative inspectors and is of identical value to such reports (Article 8(3) of Regulation No 2185/96, Article 9(2) of Regulation No 1073/99). The legal status of final investigation reports of OLAF was evaluated by the Court of First Instance (CFI) in Comunidad Autónoma de Andalucía.35 Referring to the applicant’s request addressed to OLAF to modify the content of its report, CFI stated this report does not constitute a measure having a binding legal effects such as to affect the interests of the applicant, but is merely a recommendation or opinion. It stated that OLAF’s conclusions contained in the final report cannot automatically lead to the opening of administrative or legal proceedings at national level, since the national authorities are free to decide what actions should be taken following findings included there, and therefore they are only authorities which may take decisions affecting the applicant’s legal position. A similar position was taken by the CFI in Grau.36 The CFI stated that the report by which administrative investigation of OLAF is completed contains, apart from the narrative of the facts established, a statement of the findings drawn from them and recommendations as to the actions that should be taken pursuant to the report. The CFI explained that while OLAF may recommend in its report measures to be adopted having binding legal effects adversely affecting the persons concerned, the opinion it provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which the report is addressed. It follows that once an administrative investigation is finalised and final investigation report is transmitted to the national authorities, the case is closed for OLAF and its future depends on the Member State concerned. Nevertheless OLAF is not expressis verbis empowered to conduct follow-up actions, it does so in order to evaluate the ways in which the final investigation reports was utilised. To comment on the construction of administrative investigation conducted by OLAF, it is justifiable to state that their main objective is to provide the national authorities of the Member States with the final investigation report, containing evidence collected on the case under investigation, with the view that the materials provided could be used in further proceedings conducted by national authorities at national level. (d) The Legal Nature of OLAF’s Investigation The legal nature of investigations conducted by OLAF can be deduced from its very name, indicating their administrative character. It is also clear that powers attributed to OLAF in the frame of their investigations do not affect the powers of the Member States regarding the prosecution of criminal offences, nor the rules governing mutual assistance between

35 36

Case T-29/03 Comunidad Autónoma de Andalucía v Commission [2004] ECR II-2923, paras 33 and 37. Case T-309/03 M C Grau v Commission [2006] ECR II-A-2-00387, para 50.

814 Cooperation in EU Subsidy and Custom Cases Member States in criminal matters (Article 1 of Regulation No 2185/96, Article 2 of Regulation No 1073/99). Moreover, several provisions require Member States to provide OLAF with the assistance necessary to accomplishment of administrative investigations (Articles 7(2) and 9 of Regulation No 2185/96). Independently from the self-apparent administrative nature of the investigations conducted by OLAF, this same conclusion could be drawn from the character of competences attributed to OLAF, which have typical control functions, with a report being produced at their conclusion (Article 7 of Regulation No 2185/96, Article 9 of Regulation No 1073/99). It may be adduced that above-mentioned reservations included in the EU Regulations were introduced to clearly exclude OLAF from conducting criminal investigations, and thus powers attributed to OLAF could not be comparable to those of a prosecutor. This conclusion may also follow from the fact that OLAF depends on national authorities in all cases requiring enforcement actions. These reservations may also be read in the wider context of the principle of conferral, as established by Article 5(1) and (2) of the Treaty on European Union (TEU), which is the general principle of the EU law. Accordingly, the EU may act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the EU in the Treaties remain with the Member States, and neither the Commission within which OLAF operates, nor OLAF itself, were attributed with competence for criminal investigations that could be exercised during OLAF’s administrative investigations.

C. COOPERATION OF ADMINISTRATIVE AUTHORITIES OF THE MEMBER STATES WITH THE COMMISSION’ SERVICES (OLAF)

1. Implementing EU Policies Before analysing the vertical cooperation of administrative authorities, general comments will be provided on the EU policies and its activities. European Union law does not provide for a uniform model of implementing EU policies, and consequently significant differences exist between the execution model of, eg the CAP, the competition policy, the social policy, the foreign and security policy or establishing within the EU an area of freedom, security and justice. There are, however, certain common features of the model adopted for EU policy implementation. First, it must be noted that the Member States are granted organisational and procedural autonomy which allows them to adopt all measures they deem to be most suitable for implementation of EU policies. They are thus free to eg set up new administrative structures for executing EU policy, implementing tasks or allocating responsibilities to existing structures, as well as to equip them with the most relevant competences and set up procedures and law enforcement mechanisms. Nevertheless, the autonomy of the Member States is limited, as they are allowed to undertake measures ensuring EU policy implementation as long and in so far as EU law does not provide for specific requirements in that respect. Restrictions in that sphere derive from two sources: from EU legislation and from the jurisprudence of the ECJ. It may be worth noting that requirements limiting the autonomy of the Member States in the area of the protection of EU financial interests which were elaborated by the ECJ, namely a prohibition against different treatment of cases based on national and European law (assimilation requirement), and an obligation to ensure effective protection of these interests. In the Greek maize

Cooperation of Administrative Authorities of the Member States 815 case37 the ECJ stated that the Member States are obliged to undertake actions ensuring a proper application and effectiveness of Community law, and this duty remains valid also when Community law does not provide for specific requirements in that respect or when it refers to the national law. In that particular case it meant that although no Community provisions explicitly stipulated this, Greece was obliged to launch proceedings aimed to establish a legal liability of persons responsible for fraudulent operations aimed to avoid the collection of customs duties due to the EC budget and to recover funds not collected, as well as to impose effective, proportionate and dissuasive sanctions for infringement of EC provision. Both requirements—assimilation and effective protection—were afterwards codified by the Treaty of Amsterdam (1997) and are now contained in Article 325 TFEU. The second remark on the model of EU policy implementation refers to the EU institutional setting in which the Commission performs a supervisory function in relation to the Member States. To be precise, Article 17 of TEU entrusts the Commission with the role of ‘Guardian of the Treaty’, in which it is obliged to oversee the application of EU law under the control of the ECJ. For these reasons the Commission is attributed with various monitoring and enforcement measures, a central instrument being a possibility to launch proceedings under Article 258 TFEU against a Member State failing to fulfil its treaty obligations. In addition, Article 317 TFUE assigns the Commission with the responsibility for the EU budget implementation that means collecting its revenue and incurring expenditures from that budget. Although that article foresees the Member States cooperating with the Commission when implementing the EU budget, the Treaty wording is rather clear as to the point that the ultimate responsibility in that respect rests with the Commission.38 This conclusion may also be derived from the secondary legislation adopted in the customs policy, the CAP and in the cohesion policy which furnishes the Commission with supervisory measures, which it can use when the Member States fail to fulfil tasks entrusted to them, when EU budgetary funds are collected or spent.

2. Cooperation in Case of Breach of Customs or Agricultural Provisions The rules of such cooperation, with regard to customs duties and other charges having equivalent effect, including agricultural levies and other fees relevant to the CAP,39 are provided for in particular, by Regulation No 515/9740 with amendments introduced by Regulation No 766/2008 from 13 August 2008.41 The Commission transferred to OLAF42

37

ECJ Case C-68/88 Commission v Hellenic Republic [1989] ECR I-2965. G Cipriani Gabriele, ‘The Responsibility For Implementing The Community Budget’ (2006) 247 Centre For European Policy Studies www.ceps.be/book/responsibility-implementing-community-budget. 39 This Regulation additionally deals with other charges provided for under special arrangements applicable to certain goods, resulting from the processing of agricultural products and operations forming part of the system of financing by the European Agricultural Guidance and Guarantee Fund. 40 Regulation 515/97 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure correct application of the law on customs and agricultural matters [1997] OJ L82/1. 41 OJ L218. 42 http://ec.europa.eu/dgs/olaf/legal/doc/manual_short.pdf. In OLAF’s annual reports, Regulation 515/97 is referred to in the report for the year 2006 p 23, for 2007 p 14 and for 2008 p 19. In the report from 2009, there is no reference to the Regulation; this may mean eg that there were no changes in practice worth noting, or less likely that, as a result of the Commission’s internal arrangements, OLAF lost some of its competences with regard to this Regulation. 38

816 Cooperation in EU Subsidy and Custom Cases the execution of some of the competences provided for in Regulation No 515/97, as described in the OLAF manual of operational procedures. According to this manual, OLAF staff should help to maintain the operational platform for mutual administrative assistance in order to facilitate investigations and operations43 in the customs and agricultural sectors on three levels: between competent authorities of the Member States, between competent authorities of the Member States and the Commission (OLAF), and between competent authorities of the Member States, the Commission (OLAF) and designated authorities of third countries.44 This report will concentrate on the second level of cooperation. A precondition for such cooperation is the proper collection of information and data for the purpose of exchange. Therefore Regulation No 515/97, as amended in 2008, provides for an obligation to collect data and conduct two kinds of data analysis, as well as to perform systematic (regular) or occasional automatic exchange of the results, without the need to submit a request by another Member State or the Commission (OLAF). More detailed information should also be provided on explicit reasoned request. The first type of data examination mentioned above is the so-called operational analysis, to be understood as analysis of operations which constitute, or appear to constitute, breaches of customs or agricultural legislation. The result of an operational analysis concerning activities, resources and intentions of certain persons or businesses, failing to comply (or appearing not to comply) with customs or agricultural legislation, should help customs authorities and the Commission to take appropriate measures in specific cases, in order to achieve objectives laid down as regard the fight against fraud. The second type of analysis is strategic analysis, focusing on research and presentation of general trends in breaches of customs and agricultural legislation, through an evaluation of the threat, scale and impact of certain types of operations in breach of custom and agricultural legislation. The goal of strategic analysis is to provide a better picture of the occurrence or associated dangers, as well as setting out priorities. The results of strategic analysis should also help those responsible at the highest level, to determine projects, objectives and policies for combating fraud, to plan activities and to deploy resources needed to achieve operational objectives laid down. In other words, both types of analysis should help to achieve reorientation of actions, to prevent and detect fraud and to review the departmental organisation (Article 2 Regulation No 515/97). In order to prevent irregularities Regulation No 515/97 provides for an interchange between the Commission (OLAF) and customs authorities of the Member States (or between authorities of the Member States themselves). This exchange concerns identification data of economic operators, failing to provide customs declarations, or filing

43 OLAF’s manual of operational procedures distinguishes the notions of investigations and operations. The purpose of investigations is to collect the evidence needed to establish the facts of the case in order to verify whether an irregularity has occurred (by collecting information, reviewing documents and carrying out on-thespot checks, inspections and interviews). The purpose of operations is to assist or coordinate with other national administrative and judicial authorities in their investigations and other related activities (ibid, p 7). 44 Art 1(2) Regulation 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [1997] OJ L082 provides that it has supplementary character in such sense, that it shall not apply if it overlaps with specific provisions of other legislation on mutual assistance between competent administrative authorities of the Member States and on cooperation between the latter and the Commission for the application of custom and agricultural legislations.

Cooperation of Administrative Authorities of the Member States 817 simplified declarations, or incomplete ones, as well as cases giving raise to assumptions, that declarations include false information (Article 2a Regulation No 515/97). The Commission additionally provides for a directory of data received from public or private service providers active in the international supply chain, and administers data contained therein. These data collections include in particular information about movements of containers and/or means of transport, goods and persons, connected with those movements. Regulation No 515/97 provides for a detailed list of data, which may be collected with regard to each of the above categories.45 That directory is accessible to those authorities. The submission of data is supposed to enable customs authorities to carry out observation (surveillance), special watches in the meaning of Article 7 of the Regulation No 515/97 and controls, with regard to persons, more particularly their movements, places where goods are stored, or means of transport, if there are reasonable grounds to believe that they are being used to carry out operations in breach of customs or agricultural legislation. Such interchange may also facilitate appropriate administrative enquiries concerning operations which constitute, or appear to constitute, breaches of customs or agricultural legislation. In order to enable the Commission (OLAF) to perform their duties, customs authorities of the Member States, irrespective of the above obligations, have an obligation to immediately communicate four types of information considered to be relevant. First, this encompasses information concerning goods which have been, or are suspected to be, the object of breaches of customs and agricultural legislation. Secondly, information concerning methods and practices used, or suspected of being used, for such breaches. Thirdly, Member States shall communicate to the Commission any request for assistance, action taken and information being exchanged with other Member States, which might be capable of revealing fraudulent tendencies in the field of customs or agriculture. Fourthly, Member States should submit to the Commission any information about shortcomings or gaps in customs and agriculture legislation, observed at national or European levels. The obligation to inform is mutual in the sense that the Commission should also immediately communicate to the competent authorities in each Member State, any information that could help them to enforce customs or agricultural legislation (Article 17 Regulation No 515/97). The obligation to submit information is drafted slightly differently with regard to operations that are already recognised as being of particular relevance at Union level and which constitute (or appear to constitute) breaches of customs or agricultural legislation. Actions of particular relevance at Union level are considered to be operations which have, or might have, ramifications in other Member States, as well as indicating that similar operations have also been carried out in other Member States (Article 18 Regulation No 515/97). The goal of submitting information in this case is to enable the Commission (OLAF) to coordinate steps taken by the Member States. Therefore the submitted information should take the form of documents, copies, or extracts thereof, necessary in order to determine the facts.46 45 Eg in the case of containers, the following data is collected: container number, container loading status, date of movement, type of movement (loaded, unloaded, transshipped, entered, left etc, name of vessel or registration of means of transport, number of voyage/journey place, freight bill or other transport document). 46 If necessary the Commission shall forward relevant information to another interested Member State, thereby replacing a state in its obligation to do this. After the information has been submitted, a reaction of the Member State is expected. In particular, states, after receiving such information from the Commission (OLAF), are required to submit summary of anti-fraud measures, undertaken on the basis of that information, within six months from receiving the information.

818 Cooperation in EU Subsidy and Custom Cases Acting upon a reasoned request from the Commission, the customs and agricultural agencies of the Member States should transmit to the Commission (OLAF) any information concerning the application of custom duties and charges having equivalence effect, including agricultural levies or other charges, as well as on operations forming part of the system of financing from the European Agricultural Guidance and Guarantee Fund. The Commission (OLAF) may also request any attestations, documents or certified copies of documents in the possession of a Member State, which relate to operations covered by the customs or agricultural legislation, or request notification about all instruments or decisions deriving from the administrative authorities in this respect. At a reasoned request of the Commission (OLAF) the Member State is in addition obliged (as far as possible) to keep special watch, or to arrange such special watch to be kept, within its operational area with regard to persons, their movements and movements of goods, as well as places where foods is stored and means of transport, if there are grounds for suspecting a breach of customs or agricultural legislation. The Member State must make available to the Commission the results of such special watches (Article 18 in connection with Articles 4–8 Regulation No 515/97). In cases when the Commission believes the irregularities to occur in one or more Member States, the Member State, subject to a respective notification, is obliged to carry out an enquiry at the earliest opportunity. In such cases the cooperation of the Commission (OLAF) may also be executed by participation of its officials in such inquiry. The presence of the Commission’s officials during the inquiry does not, however, mean a violation of the general rule, according to which an administrative enquiry is at all time to be carried out by the staff of the requested national authority. The Commission’s officials therefore cannot upon their own initiative assume powers of inspection conferred on officials of the authority of the Member State. Within the scope of the right ‘to be present’, they shall, however, have access to the same premises and the same documents as the latter, for the sole purpose of the administrative enquiry being carried out47 and through intermediation of the competent agency of a Member State. Irrespective of the above, the Member States concerned should, as soon as possible, communicate to the Commission the findings of the enquiry (Article 18(4) of Regulation No 515/97). Officials of the Commission (OLAF) may collect documentation related to those inquiries being in the possession of Member States authorities, on the basis of special agreements. At the same time a rule is introduced according to which, without prejudice to the provisions of the Community Customs Code, relating to the establishment of a common framework for risk management, the data received or exchanged between the Commission and the Member States may be stored and used for the purpose of strategic and operational analysis and the results of those analyses may be subject to exchange between the Member States and the Commission (Article 19(7) and (8) Regulation No 515/97). In order to facilitate cooperation between the Member States and the Commission, the Regulation No 515/97 provides for a detailed specification of the rules for operating different systems of collecting and processing data.

47 They are not entitled to participate in searches of the premises or in formal questioning of persons under criminal law. They should however have access to information obtained as a result of those actions, under the condition (if applicable) that prior authorisation of a court will be granted.

Cooperation of Administrative Authorities of the Member States 819 The Regulation 515/97 provided for the establishing of an information system, the ‘Customs Information System’ (CIS), for which the rules of conduct have been improved by the amending Regulation No 766/2008 (Article 23 Regulation No 515/97). The aim of the CIS is to assist in preventing, investigating and prosecuting operations which are in breach of customs or agricultural legislation, by increasing, through accelerated dissemination of information, the effectiveness of the cooperation and control procedures of the competent authorities. The CIS consists of a central database facility, which shall be accessible via terminals in each Member State and at the Commission. It includes the following categories of data: commodities, means of transport, businesses, persons, fraud trends, availability of expertise, goods or cash detained, seized or confiscated (Article 24 Regulation No 515/97). Personal data comprised in the system may, however, be used solely for the purposes of such actions as: sighting and reporting, discreet surveillance, specific checks and operational analysis (Article 27 Regulation No 515/97). It is worth noting that under the current mechanism set out in Regulation No 515/97, personal data entered by a Member State can be copied from the CIS into other dataprocessing systems only with the prior authorisation of the CIS partner which entered them.The 2008 amendment of the Regulation No 515/97 introduces an exception from the principle of prior authorisation, with regard to cases where the data is to be processed by national authorities and Commission services in systems of risk management or in operational systems, with the view to targeting controls on movements of goods (Article 35(3) Regulation No 515/97). As part the 2008 reform, additionally the CIS mechanism has been supplemented by establishing a special database, the ‘Customs files identification database’ (FIDE48). Pursuant to Article 41a of Regulation No 515/97 as amended, the objectives of the FIDE encompasses investigation documentation (data from investigation files49) in order to help preventing operations in breach of customs and agricultural legislation, applicable to goods entering or leaving the customs territory of the Union and to facilitate and accelerate their detection and prosecution.50 The purpose of FIDE is among others to allow the Commission, which opens a coordination file,51 or prepares a Union mission in a third country, to identify competent authorities of the Member States which are (or have been) investigating the persons or businesses concerned. The idea of collecting data in the FIDE is to facilitate the work, not only of the Commission (OLAF), but also of customs authorities of the Member States, as well as other competent EU authorities involved in customs criminal investigation, such as EUROPOL or EUROJUST (on the basis of separate arrangements or agreements).

48

The name comes from the French acronym Fichier d’Indentification des Dossiers d’Enquètes. The data shall cover only the following categories: persons and businesses which are or have been the subject of an administrative enquiry or a criminal investigation by the relevant service of a Member State, and are suspected of committing or of having committed a breach of customs or agriculture legislation or of participating in or of having participated in an operation in breach of such legislation, or have been the subject of a finding relating to such an operation, or have been the subject of an administrative decision or an administrative penalty or judicial penalty for such an operation (Art 41b). 50 This database has been fully operational since 15 September 2008. 51 Pursuant to Art 18, that is in case of inquiries, which have been initiated after the Commission has been notified about the irregularities, the Community officials may be present. 49

820 Cooperation in EU Subsidy and Custom Cases Regulation No 515/97, as amended in 2008, additionally provides for that the Commission to establish and manage the already mentioned directory of data received from public or private service providers in the international supply chain. Thus, a coherent system of databases has been created and used by customs authorities encompassing three elements: first the CIS (Custom Information System), which is an alert-based system, used on an operational basis. It provides information to help make decisions to undertake actions in this field. Second, the FIDE system, which is a case-based system, contains references to cases under investigation. Third, there is the analysis-based system, which contains databases used for ‘surveillance’ or ‘risk analysis’. The later tool helps investigators to establish parallelism between fraud cases, to evaluate trends and to begin observations (all investigation databases are part of this category of systems). Summing up, it is to be noted that the discussed Regulation No 515/97 provides for various forms of vertical cooperation between the Commission and competent organs of the Member States, starting with providing the Commission with the function of a switching unit, collecting, processing and transmitting information to appropriate authorities of interested Member States, through the role of a coordinator of actions undertaken by various Member States, and finishing with the role of a participant of administrative proceedings.

3. Cooperation in Subsidy Cases (a) Shared Management of the EU Budget by the Member States and by the Commission: Assignments of Duties and their Discharge Before discussing vertical coordination issues in implementing the CAP and the cohesion policy, one must also recall the shared management that essentially influences the mode in which these policies are implemented. Shared management is one of the methods in which the EU budget is implemented, thus methods of making expenditures from it, next to the centralised, decentralised and joint management (Article 53 of Financial Regulation52). A key difference between different methods of the EU budget implementations consists in entities to which the Commission, as responsible for execution of that budget (Article 317 TFUE) delegates implementation tasks, being it the Commission services and bodies directly or indirectly subordinated to it (centralised and decentralised management), Member States (shared management) or third countries and international organisations (joint management). Various methods of the EU budget implementation should guarantee that the protection of the EU financial interests is ensured independently from the entity entrusted with implementation tasks as well as that the Commission is able to bear the final responsibility for such implementation, as foreseen by Article 317 TFEU. The shared management ex lege applies to spending of EU budgetary funds for the implementation of CAP and the cohesion policy.53 Where the EU budget is implemented in the shared management, the implementation tasks are delegated to the national authorities

52 Art 53 Council Regulation (EC, Euratom) 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities [2002] OJ L248/1. 53 There are certain expenditures financed from funds covering implementation of the CAP and the cohesion policy that are managed centrally by the Commission itself; they are however not discussed in this report.

Cooperation of Administrative Authorities of the Member States 821 of Member States (Article 53b of the Financial Regulation). To this end, they are obliged to take all the legislative, regulatory and administrative or other measures necessary to ensure that EU funds are used in accordance with the applicable requirements and the EU financial interests are protected. In particular they must guarantee that actions financed from the EU budget are carried out and implemented correctly, prevent and deal with irregularities and frauds, recover funds wrongly paid, incorrectly used or lost and ensure annual publication of beneficiaries of these funds. From its side, the Commission must make certain that the EU budgetary resources are used in accordance with provisions of law, and for that reason it may apply supervisory measures which enable it to assume final responsibility for implementation of that budget (Article 317 TFEU). Conditions concerning obligations imposed on Member States and verification of their discharge by the Commission are specified by sectorial legislation. It follows that the leitmotif of the shared management is the delegation of budgetary implementation tasks by the Commission to the Member States, with the reservation that the former reserves supervisory measures to be taken against the Member States when the Commission is not satisfied with the execution of tasks entrusted (eg action for failing the treaty obligations under Article 258 TFUE, or clearance-of-accounts procedures and financial corrections established by legislation). The delegation is a construction of the public administrative law in which an authority delegating the tasks attributed to it describes the conditions to be respected by the entity to which it delegates its performance, with instruments of interventions available when these conditions are not fulfilled. In the shared management, tasks are delegated to the Member States on ex lege basis, having their grounds in the provisions of the Financial Regulation, which means that the Commission has no discretion in that respect. The delegation, as an inherent feature of the shared management, influences the cooperation model between the Commission, as delegating authority, and the national authorities of the Member States, as entities to which tasks are delegated, which are vertical by the very nature of delegation, with a subordination of Member States towards the Commission playing a crucial role. This model of cooperation has a strong treaty basis both in Article 17 TEU, whereby the Commission performs the function of the guardian of the Treaties with enforcement powers, as well as in Article 317 TFEU which makes the Commission responsible for the implementation of the EU budget, in both cases with the supervisory measures available. To conclude, the intense involvement of the Commission in national measures undertaken to implement the CAP and cohesion policy results from the fact that these EU policies, like no other, are strongly financially supported by the EU budget, in the area of which the primarily responsibility rests with the Commission. (b) Common Administration of EU budget: the Member States and the Directorates-General of the Commission (i) Role of the Member States As stated, under the shared management the Member States are entrusted with a vast range of implementing tasks involving the EU budgetary funding for implementing the CAP and the cohesion policy. EU legislation identifies these tasks and objectives to be achieved by their execution, leaving the Member States with some discretion as to the precise means of their attainment.

822 Cooperation in EU Subsidy and Custom Cases In implementing the CAP, the principal role is played by the national paying agencies. Among different tasks, they are responsible for checking admissibility of the claims provided by beneficiaries, for verifying eligibility of the expenditures included there, for receiving payments from the EU budget and for transferring them to the beneficiaries. Only expenditures incurred by paying agencies may be reimbursed from the EU budget. Paying agencies must first accomplish and then maintain conditions established by the EU law, so-called accreditation criteria,54 and failure in that respect may result in interruptions in the financial flow from the EU budget to national budget. Paying agencies, of which there are presently nearly 90 in the EU, are also in the first instance responsible for dealing with irregularities: for detecting them, ensuring that relevant legal procedures aimed to impose sanctions of appropriate legal nature are launched and that money that is improperly spent is recovered. With these objectives in mind, national agencies perform various types of controls, generally focused on documentation checks and on-the-spot visits, verifying data declared with facts. The exact types of controls to be carried out and detailed requirements as eg number of claims to be controlled or control techniques to be applied are laid down in regulations on the European Agricultural Guarantee Fund (EAGF) and European Agricultural Fund for Rural Development (EAFRD), and vary from one sector to another.55 Their common feature is, however, that they are performed in accordance with annual plans, prepared on the basis of the risk analyses and provided to the Commission. Paying agencies perform their management and control tasks upon receipt of regular payments from the EU budgets. To obtain these they must eg provide the Commission with declarations of expenditure incurred and the payment claim, which is externally audited. If this declaration or payment included does not comply with the requirements established in the Financial Regulation, the Commission may reduce or suspend payments. In the event of irregularities, EU budgetary commitments are cancelled or, if the funds have already been paid to the beneficiary, the paying agency is obliged to recover them. The functioning of paying agencies is regularly verified and annually assessed by the national authority specifically assigned that purpose (a certifying body56) and by the Commission. These evaluations have ex ante and ex post character. Ex ante verification takes place before the Commission makes the first payment to the national paying agency, and is intended to ensure that the agency is able to perform its functions (accreditation audits). A similar objective is met by ex post verifications (audits), made on an annual basis and performed upon regular turnover between the EU budget and national budget. Findings of these verifications are presented by the national certification body to the Commission in

54 Commission Regulation (EC) 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD [2006] OJ L171/90. 55 Eg Commission Regulation (EC) 1276/2008 of 17 December 2008 on the monitoring by physical checks of exports of agricultural products receiving refunds or other amounts [2008] OJ L339/53; Commission Regulation (EC) 4/2004 of 23 December 2003 laying down detailed rules for the application of Council Regulation (EEC) 4045/89 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund [2004] OJ L2/3; Council Regulation (EC) 485/2008 of 26 May 2008 on scrutiny by Member States of transactions forming part of the system of financing by the European Agricultural Guarantee Fund (Codified version) [2008] OJ L143/1. 56 The certification body is designated entity by the Member State with a view to certifying the truthfulness, completeness and accuracy of the accounts of the accredited paying agency, taking account of the management and control systems set up (Art 7 Regulation 1290/05 of 21 June 2005 on the financing of the CAP [2005] OJ L209).

Cooperation of Administrative Authorities of the Member States 823 the form of the annual audit opinion. These opinions are evaluated by the Commission and may lead to it launching its own checks (clearance-of-account procedure) and supervisory measures (eg suspension of payments or financial corrections). Presented control activities performed by national authorities and by the Commission share a common characteristic of inter alia being focused on effective functioning of the system established to perform the legal obligations ascribed to national bodies (called an audit of a management and control system). In that sense, examination of particular cases is conducted in so far and to such extent as it can establish conclusions regarding the whole system. As far as the implementation of the cohesion policy is concerned, its institutional framework is more complex in comparison to the implementation of CAP. In the cohesion policy management and controls tasks are performed by national bodies operating on three, hierarchical levels, that is: managing authorities, certifying authorities and audit authorities. In that regard the principal role is attributed to the managing authorities who bear overall responsibility for management and controls of the funds spent. Thus they select projects to be financed, monitor their execution, make the payments to beneficiaries, perform control of projects and of operational programmes (called management controls), conduct controls, deal with irregularities and recover funds wrongly paid or obtained. Although managing authorities are not expressis verbis required to obtain an accreditation to make payments (like paying agencies in CAP), there is, however, a similar requirement as they need to ensure that they are able to fulfil tasks entrusted to them. To that end they provide the independent national body as well as the Commission with the description of arrangements established under operational programs to guarantee that EU law conditions concerning spending the EU funds will be met. As the positive appraisal of this description determinates the first payment to be made by the Commission to the Member State, thus this ex ante control may be comparable to an accreditation audit. Functioning of managing authorities is also regularly scrutinised by national bodies (certifying authorities and audit authorities) as well as by the Commission. While the certifying authorities verify declarations of expenditures incurred and the payment claims issued by the managing authority to be reimbursed by the Commission, audit authorities—similarly to a certifying body in the CAP present the Commission with independent annual audit opinions of functioning of the managing authorities, implementation of operational programmes and legality of the funds spent.57 Although implementation of the CAP and of cohesion policy varies, its general pattern remains similar: vast majority of management and control tasks are entrusted to a single national body (paying authority in the CAP and managing authority in the cohesion policy). These tasks may be portrayed as focused around the treatment of irregularities. To that end they are obliged to: prevent them, conduct checks detecting them, report on them to the Commission, recover the money spent irregularly and impose proportional, effective and deterrent sanctions. Since the present article focuses on cooperation issues, two tasks from the above-mentioned list, strictly related with collaboration deserves a special attention, namely checks intended at detection of irregularities and an obligation to report on them

57 Not to confuse the names, however, certifying authorities in the cohesion policy are bodies which attest statements of expenditures and applications for payments before they are sent by the managing authorities to the Commission to receive the payments from the EU budget, and in the CAP such a function is performed by paying agencies themselves.

824 Cooperation in EU Subsidy and Custom Cases to the Commission. The notion of cooperation does not prevail in the implementation of other tasks because they depend much more on the national legal context. The responsibility for dealing with irregularities is in the first instance ascribed to national authorities (paying authority/managing authority), who because of their direct relations with the beneficiaries, are in an optimal position to discharge them. Other controls, being of national or EU level, are subsidiary, as they mainly verify whether the paying agency and managing authorities perform their tasks duly. A word may also be said on the mutual relation in vertical co-operation, which allows the Commission to rely more heavily on national authorities. To be exact, once the Commission is satisfied with the way that the national controls operate, in particular audits performed by certifying bodies (CAP) and audit authorities (cohesion policy), it is allowed to refrain from its own checks and rely on the findings established at the national level. On the other side, when it is dissatisfied, it also has relevant instruments, this time enforcement once. Therefore the hierarchical subordination prevails, as being an inhered feature of the shared management. Concerning obligation to notify irregularities, it may be clarified that Member States must report to the Commission each quarter on any irregularities under administrative or judicial procedure, committed or suspected, which financial impact exceeds 10,000 euros. Information on the type and the amount of expenditures involved, the practices used to commit an irregularity, the progress of conducting of such proceedings and the authorities in charge of them are also provided on a quarterly basis. In addition, if it is deemed that an irregularity in question may have a rapid impact on other Member States or it indicates an employment of a new malpractice, the Member State concerned must report on them also to the other Member States.58 (ii) Role of the Directorates-General of the Commission Under the shared management, the Commission performs a role of a guarantor. To discharge its Treaty responsibility for the EU budget implementation, it is legally requested to be able to ensure that sound financial management is preserved, thus legal conditions of spending the EU funds are fulfilled, tasks described are performed and financial interests of the EU are protected. To that end it is equipped with supervisory instruments enabling it to bear that responsibility, among which financial corrections, with the effect of excluding expenditures from EU financing and therefore the reduction national allocation ascribed to Member States, being the most deterrent one. Tasks in this respect are fulfilled by the departments of the Commission dealing with particular policies, being the DirectorateGeneral for Agriculture and Rural Development, for Regional Policy, for Employment, Social Affairs and Equal Opportunities as well as for Environment. Financial corrections are applied both in the CAP and in the cohesion policy. They however originate from the CAP policy and their legal construction is developed more comprehensively in that policy. They are imposed by the Commission on the Member State in a

58 Reporting on irregularities: in the cohesion policy: Art 70 Regulation 1083/06 of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 [2006] OJ L210/25, in the CAP: Art 35 Regulation (EC) CAP [2006] L209/1, Commission Regulation (EC) 1848/2006 of 14 December 2006 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the CAP and the organisation of an information system in this field and repealing Council Regulation (EEC) No 595/91.

Cooperation of Administrative Authorities of the Member States 825 form of decision, after conclusion of a special procedure. Information leading to initiation of this proceeding may originate from different sources: from internal Commission data (eg checks performed in the Member States, final reports of OLAF, analyses of financial data), from the Member States, obliged to provide the Commission with specific data (eg annual audit opinions, reporting on irregularities) or from other EU institutions (in particular audits findings of the Court of Auditors). In the CAP59 there are two procedures in which financial corrections may be imposed: clearance-of-accounts and conformity clearance. In the clearance-of-accounts procedure, which is held on annual basis, accounts of paying agencies are under scrutiny. This procedure is formal, as it is intended to verify the annual financial turnover: payments transferred from the EU budget to the national budgets and then to the beneficiaries. Conformity clearance is undertaken on an ad hoc basis and it has a different aim: it intends to check whether the expenditures incurred by paying agencies complied with the applicable rules. In that respect functioning of paying agencies is also analysed, as its routine functioning determines such compliance. In the cohesion policy, there is only one procedure in which financial corrections, which cover both formal and substantial aspects of the policy implementation and encompasses a written part, bilateral discussions and conciliation procedures. In that frame the Commission provides the Member States with facts established which in its opinion justify financial corrections and proposes its amount. The Member States, in periods prescribed by law, may bring any data available to undermine conclusions drawn by the Commission. At the end of this procedure, the Commission issues a decision containing a list of expenditures excluded from EU budget financing because of their non-compliance with provisions applicable or major failures in national system established for management and control of the funds.60 The legality of this decision may be challenged before ECJ under action for annulment (Article 263 TFEU).

4. The Member States and OLAF: Administrative Investigations This section will elaborate on cooperation between OLAF and national authorities during administrative investigations with the view to establish its dominant features. As a starting point it may be recalled that the objective of this investigation is to provide national authorities with a final report containing information to be exploited in the course of the national proceedings. One may remember that while conducting administrative investigations, inspectors of OLAF are subjected to two systems of law: EU and national

59 Commission Regulation (EC) 941/2008 of 25 September 2008 laying down form and content of the accounting information to be submitted to the Commission for the purpose of the clearance of the accounts of the EAGF and EAFRD as well as for monitoring and forecasting purposes [2008] OJ L258/3. 60 Eg Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (notified under document number C (2008) 1283) [2008] OJ L109/35; Commission Decision 2009/373/EC of 29 April 2009 on the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Fund for Rural Development (EAFRD) for the 2008 financial year (notified under document number C (2009) 3219) [2009] OJ L116/21; Commission Decision 2009/367/EC of 29 April 2009 on the clearance of the accounts of the paying agencies of Member States concerning expenditure financed by the European Agricultural Guarantee Fund (EAGF) for the 2008 financial year (notified under document number C (2009) 3217) [2009] OJ L111/44.

826 Cooperation in EU Subsidy and Custom Cases law of the Member State concerned (Article 6(1) of Regulation No 2185/96).61 The national clause included in the EU provisions obliges OLAF inspectors who, while conducing administrative investigations are subjected to EU law, to also comply with the national rules of procedure of the Member State (Article 6(1)) of Regulation No 2185/96, Articles 6(4) and 9 of Regulation No 1073/99).62 This requirement must be viewed in the context of the objective to conduct administrative investigation, which is, as stated, to produce a final investigation report containing findings and evidence supporting them with the view to be provided to national authorities directing a legal proceeding in a case. Accomplishment of these requirements necessitates both comprehensive knowledge and strict observance of national provisions by OLAF, as its failures may exclude evidence collected from evaluation by national authorities adjudicating the case. It may be noted, however, that EU Regulations establishing the national clause are shaped in rather vague terms, stating that (only) national procedural requirements of the Member States concerned must be obeyed, which prima facie would exclude national substantial law provisions from being complied with. Recalling objectives of conducing administrative investigations it appears that this narrow interpretation of national clause could not be rightly justified, as it could deprive the evidence collected under administrative investigations conducted by OLAF of its effect. Under EU law administrative investigations are prepared and performed by OLAF in close cooperation with competent national authorities of the Member States concerned: national authorities are notified in good time of the object, purpose and legal basis of the investigation, so they can provide all the requisite help (Article 4 Regulation No 2185/96) and they may participate in checks and inspections performed in that framework as well as carrying them out jointly with inspectors of OLAF. Upon agreement of the Member State concerned, OLAF inspectors may seek the assistance of officials from other Member States as observers and call on outside bodies acting under their supervision to provide technical assistance (Article 4 of Regulation No 2185/96). Following from the vertical relationship between OLAF and national authorities in conducting administrative investigations one may consider that this relationship is of mainly cooperative character. The assistance obligations imposed on Member State towards OLAF may, however, slightly modify this thought and lead to the reflection that supportive role of national authorities prevails in this cooperation scheme. One may thus recall the obligations of OLAF to notify the national authorities on administrative investigations to be conducted, but with the view, in the wording of Article 4 of Regulation No 2185/96, to allow the Member State to provide OLAF with all requisite help. Similar spirit of assistance follows from Article 6(6) of Regulation No 1073/99, according to which Member States should ensure that its competent authorities give the necessary support to enable OLAF to fulfil its tasks. Comparable attitude is enshrined in Article 7(2) of Regulation No 1073/99 stating that where necessary, it is for the Member States, at the OLAF request, to take the appropriate precautionary measures acting under the national law, in particular in order to safeguard evidence. Whereas economic operator resists on checks or inspections to be performed by inspectors of OLAF in the framework of administrative investigations, the Member State, acting with national rules is obliged to give them such assistance as they 61

See also section B.4. Officials of OLAF are also required to ‘adopt an attitude in keeping with the rules and practices governing officials of the Member State concerned’. 62

Cooperation of Administrative Authorities of the Member States 827 need to allow them to discharge their duties. It is therefore for the Member States to take any necessary measures (Article 9 of Regulation 1073/99). It follows from these that when coercive, precautionary, safeguard or other enforcement measures are necessary to be applied in the framework of administrative investigations, this would be the task of the national authorities of the Member State concerned. Therefore it may be predicted that when administrative investigations requires enforcement measures, these proceedings to a large extent depend on the effectiveness of the assistance provided by the Member State. This cooperation, in which assistance provided by the Member States to OLAF for reasons of conducting administrative investigations plays such a crucial role, must be viewed in the context of the principle of conferral (Article 5(2) TEU) and of loyal (sincere) cooperation (Article 4(3) TEU). One may recall that competences ascribed to OLAF are governed by assimilation principle: while conducting administrative investigations, OLAF inspectors have access, under the same conditions as national administrative inspectors and in compliance with national legislation, to all the information and documentation on the operations concerned as well as to the same inspection facilities as national administrative inspectors (Article 7 of Regulation No 2185/96). The scope of investigative competence to which OLAF is confined, in general terms, performing administrative checks, read in the context of the principle of conferral, may imply that the Member States did not intend to provide OLAF with any competences allowing it to employ coercive measures towards economic operators or other entities under administrative investigations, but instead they agreed to exercise these powers by themselves, if needed. This rationale might, to some extent, explain the lack of provisions on procedural safeguards granted to entities under administrative investigations, which in previous years has attracted serious criticism.63 From the historical perspective it might be adduced that when Regulation Nos 2988/95, 2185/96 and 1073/99 were adopted in the mid- and late-1990s, while the UCLAF and its successor OLAF were only beginning their operations, Europeanisation of criminal law and regulation in that framework of the rights of defence were tasks to be accomplished in the future. Although the Corpus Juris drafted 1997 and amended in 2000 contained a wide set of rules on procedural safeguards, the first EU initiative on procedural safeguards was tabled only in 2004.64 Thus the EU legislator might have presumed that all actions of a coercive character performed in the framework of administrative investigations hold by UCLAF/OLAF would be undertaken by national authorities assisting them, thus national law would apply to procedural safeguards. As years have passed, question of procedural guarantees of those involved in administrative investigations held by OLAF, in particular in internal investigations, became so crucial that it has led to actions brought in the ECJ against the Community leading to liability in damages (Article 340 TFEU)65 as well as the Commission draft indented to modify this area.66

63

Gless, Zeitler (n 3) 219; Hetzer (n 3) 20; Wakefield (n 3) 594. Proposal for a council framework Decision on certain procedural rights in criminal proceedings throughout the European Union (COM (2004) 328 final). 65 Case T-309/03 M C Grau v Commission [2006] ECR II-A-2-00387; Joined cases T-391/03 and T-70/04 Y Franchet and D Byk v Commission [2006] ECR II-02023, paras 98-124; Case T-259/03 K Nikolaou v Commission [2007] ECR I-99; Case F-23/05 J L Giraudy v Commission (CST, 2 May 2007). 66 Proposal for a Regulation of the European Parliament and the Council amending Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti Fraud Office (OLAF) (COM (2006) 244 final). 64

828 Cooperation in EU Subsidy and Custom Cases It should be also borne in mind that even if specific assistance duties of Member States were not stipulated in the EU Regulations, they could have been interpreted from the Article 4(3) of TUE, establishing the principle of loyal cooperation.67 This principle is a meta-norm from which, over the years, the ECJ has derived many explicit obligations of Member States and of EU institutions. For example, in the Greek maize case68 it stated that the Member States are obliged to undertake actions ensuring a proper application and effectiveness of the Community law and this duty remains valid also when Community law does not provide for specific requirements in that respect or when it refers to the national law. In that particular case it meant that although no Community provisions explicitly stipulated so, Greece was obliged to launch proceedings aimed at establishing a legal liability of persons responsible for fraudulent operations aimed to avoid the collection of customs duties due to the EC budget and to recover funds not collected, as well as to impose effective, proportionate and dissuasive sanctions for infringement of EC provision. This rule translated into conditions of conducting administrative investigations by OLAF may imply that even if a particular duty of assistance were not established in EU Regulations, such a duty nevertheless being indispensable for conducting these investigations, OLAF may request the Member State to perform it, in frames foreseen by the national legislation. It cannot, however, be excluded that in some cases national authorities of the Member States may be unwilling, for whatever reason, to provide OLAF with assistance requested by it and thus the question on legal consequences of such a situation arises. As horizontal Regulations provide no remedy in that respect, one may deem that a general Treaty regime would apply. In that framework OLAF, as an administrative part of the Commission, could request the latter to initiate on its behalf a proceeding under Article 258 TFEU pleading the lack of cooperation, rendering performance of administrative investigations being impossible as a failure to fulfil the obligation under the Treaty. Until now, though, this possibility was not exploited by OLAF. Recently, however, such an action was brought by the Commission against Germany69 on behalf of the Court of Auditors, pleading that Germany, by refusing to permit that Court to carry out audits concerning administrative cooperation in the field of VAT, which finances the EU budget (Article 311 TFEU), had infringed Article 287 TFUE (ex Article 248) concerning the competences of Court of Auditors, and also Article 4(3) TEU (ex Article 10 EC).70 In a recently issued judgement the ECJ confirmed the obligation of Germany to allow auditors from the European Court of Auditors to perform its activities in that state.71 This judgment suggests that, if necessary,

67 According to this provision Member States must take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union and facilitate the achievement of the Union’s tasks (positive aspect) and refrain from any measure which could jeopardise the attainment of the Union’s objectives (negative aspect). 68 Judgment of the Court of Justice of 21 September 1989 in Case 68/88 Commission v Hellenic Republic [1989] ECR I-2965. 69 Infringement of Arts 140(2) and 142(1) Financial Regulation and Regulation 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 [2003] OJ L264/1 was also recalled; Case C-539/09 European Commission v Federal Republic of Germany [2010] OJ C51/24. 70 Council Regulation (EC) 1798/2003 of 7 October 2003 on administrative cooperation in the field of value added tax and repealing Regulation (EEC) No 218/92 [2003] OJ L264/1. 71 Judgment of 15 November 2011. Case C-539/09 European Commission v Federal Republic of Germany [2010] OJ C51/24.

Cooperation of Administrative Authorities of the Member States 829 the Commission could use the proceeding under Article 258 TFEU to facilitate OLAF action, should it encounter obstruction from the Member States. Not to undermine the previous statements underlining the assistance obligations legally imposed on the Member States towards OLAF, relations between them should also be perceived from the teleological point of view. Stressing that a reason for carrying administrative investigations is to provide national authorities with evidence to be proceeded by them in national proceedings, one shall perceive the specific nature of subsidy cases. Unlike own recourses cases concerning eg cigarette smuggling or frauds in field of VAT72 in which the transnational dimension and involvement of economic operators from different Member States and third countries are inherent features, subsidy cases, in general, do not share such characteristics and have a strictly national character. They usually concern relations between beneficiaries and first-level national administration (in most cases: paying agencies in CAP and managing authorities in the cohesion policy) and infringement of national or, more rarely, EU provisions concerning eligibility of expenditures covered by the EU budget. To illustrate this, in the cohesion policy the irregularities which were most frequently detected and reported by Member States consisted of claims by beneficiaries in their applications for payments and expenditures which did not fulfil eligibility criteria (eg revocable VAT) or were not incurred, falsification and other shortcomings in projects documentation, infringement of public procurement rules, surpassing co-financing thresholds (additionallity principle), exceeding deadlines for executing projects, or refraining from completing projects.73 As an exception which proves the rule, there are certainly subsidy cases which could not be covered, eg cases concerning projects of cross-border, transnational or interregional cooperation implemented in the cohesion policy or concerning export refunds cases granted in CAP. Against this background it may be stated that an added value of administrative investigations hold by OLAF results from the fact that in trans-border and complex cases, due to its European dimension it is able to come up much easier with the findings and evidences, collection of which might have been challenging for Member States acting individually, which in some may be unattainable. Accordingly, the significance of OLAF administrative investigations is evident in cases, which could not be handled successfully by the Member States. This rationale also follows from the EU provisions, according to which OLAF may conduct checks and inspection for the detection of serious or transnational irregularities or irregularities that may involve economic operators acting in several Member States or whether situation in particular Member States requires checks and controls to be strengthen to improve the effectiveness of the protection of the EU financial interests or whether Member States so requires (Article 2 of Regulation No 2185/96). This highlights that the OLAF role is to supplement actions of the Member State, if circumstances requires so, and not replace them. To say in other words, administrative investigations held by the OLAF are not an objective per se, instead they are functionally connected with proceedings of the Member States for which they may serve as useful instrument, and thus they

72 Council Regulation (EU) 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax [2010] OJ L268/1. 73 Report from the Commission to the European Parliament and the Council, Protection of the financial interests of the Communities—Fight against fraud—Annual Report 2006 (COM (2007) 390 final), Annex, point 4.2.2; Report from the Commission to the European Parliament and the Council— Protection of the Communities’ financial interests—Fight against fraud—Annual report 2005 (COM (2006) 378 final) point 3.3.2.

830 Cooperation in EU Subsidy and Custom Cases should be conducted in a way to serve it in at the best possible way. The rationale concerning complementary role of administrative investigations of OLAF also complies with the principle of subsidiarity, which is a general principle of EU law governing the execution of competences conferred to the EU (Article 5(3) of TEU).74 Each involvement of OLAF eg in subsidy cases thus requires its sensible judgment to avoid situations in which it would not be recognised by national authorities as bona fide support for them. This attitude requires the mutual trust of both partners: national authorities perceiving the results of cooperation to be used in their proceedings, and thus encouraged to assist in conducting administrative investigations, and OLAF acting as collaborator of national authorities focused on providing them with the best possible results. Maintaining that relationships between OLAF and national authorities is both idealistic and challenging, given the institutional position of OLAF as part of the Commission, which as the guardian of the Treaty (Article 17 TEU) and the authority responsible for EU budget implementation (Article 317 TFEU) has a supervisory role with regard to the Member States.

D. COOPERATION OF NATIONAL PROSECUTORS, INVESTIGATION AGENCIES AND JUDICIAL AUTHORITIES, AND OLAF WITH OTHER EU INSTITUTIONS IN IRREGULARITIES CASES

1. Europol’s Competence in the Field of Protecting EU Financial Interests Currently, the European Police Office (Europol) is operating on the basis of Council Decision 2009/371/JHA of 6 April 2009,75 which replaces the Convention, based on Article K.3 of the Treaty on European Union on the establishment of a European Police Office (Europol Convention)76 (together with additional protocols).77 This change in the context of tasks performed by this institution fighting crimes against the financial interests of the European Union, should be considered as appropriate and practically relevant. It is not limited only to the choice of an another legal instrument regulating the structure and functioning of Europol but also takes into account current needs and current challenges facing law enforcement. Paragraph 8 of the preamble to the Decision explicitly states that one of the improvements to the operation of Europol is the possibility to provide assistance to the competent authorities of the Member States in combating specific forms of serious crimes, so far limited to situations where there were factual indications of an organised criminal structure. The primary objective of Europol, as prescribed in Article 4 of the Decision, is to support and enhance the effectiveness and mutual cooperation of the competent authorities of the Member States in the prevention of organised crime, terrorism and other forms of serious

74 Under the principle of subsidiarity, in areas which do not fall within the exclusive competence of Union, it may act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. 75 OJ L121/1. Hereafter cited as ‘Decision’. The current Europol is the legal successor of the Europol acting on the basis of the 1995 Convention (see Art 1.2 Decision). 76 OJ C316/2. 77 See Arts 1.1 and 62 of the Decision.

Cooperation of National Prosecutors, Investigation Agencies 831 crime, concerning at least two Member States and the fight against these criminal activities. From the standpoint of the protection of the EU’s financial interests, the Decision provides a limitation to the competence of Europol, arising from the nature of crimes that determine the operation of this institution. This mainly applies to organised crime (which taking into consideration the topic of the report, must be narrowed down to crimes against the financial interests of the EU), explicitly referred to in Articles 3 and 4 of the Decision and criminal activities related to money laundering, the forgery of official documents and the circulation of such documents, forgery of money and means of payment corruption78 as well as other related criminal offences.79 Europol’s structure, providing for, among other things, the operating of national units as intermediaries in contacts between Europol and the competent authorities of the Member States, and liaison officers, allows on the one hand the flow of information to be channelled and focused, thus allowing for its more effective use, while on the other hand facilitating more effective coordination of international actions of Europol by participation of members of national law enforcement authorities from different Member States. From the viewpoint of the protection of the EU’s financial interests, the relevant powers of Europol include in particular the right to participate in joint investigation teams (under the condition that the team is conducting investigation of a crime that lies with the jurisdiction of Europol), and the possibility (especially resulting from collected information) to request the initiation, conduct or coordination of criminal investigation in specific cases.80 Transfer of information between Europol and other EU bodies, including Eurojust and OLAF, can take place on the ground either of existing agreements or new ones, concluded on the basis of Article 22 of the Europol Decision81 and Article 4 of the Council Decision 2009/934/JHA of 30 November 2009 adopting the implementing rules governing Europol’s relations with partners.82 Examples of such agreements are: the agreement between Eurojust and Europol, signed at The Hague on 1 October 2009, which entered into force on 1 January 2010 and the administrative arrangement between the Europol and OLAF concluded at The Hague on 8 April 2004.83 As regards the administrative arrangement with OLAF, it was concluded in order to fight international organised crime in the context of fraud, corruption or any other criminal offence or illegal activities affecting EU financial interests. It provides for both parties the opportunity for the transfer (spontaneous, or on the basis of a request of the other party) of any strategic and technical information necessary to perform its tasks stored in the Europol Information System or the CIS, as well as any other database of OLAF or Europol. However, the administrative arrangement with OLAF do not provide for the possibility

78

See tiret 2, 16, 17 and 19 of the Appendix to the Decision. For the purpose of the Decision, a related criminal offence shall be considered an offence committed in order to procure the means of perpetrating acts, to facilitate or to carry out acts to ensure the impunity of offences in respect of which Europol is competent—see Art 4.3 of the Decision. 80 Before submitting a request to the European Union Member State, Europol shall inform Eurojust— see Art 7.2 Decision. 81 In respect of Eurojust and OLAF—see respectively Art 22.1 points a and b. 82 OJ L325/6. 83 See also Art 9.2 Administrative Agreement on Cooperation between the European Commission and the European Police Office, signed in Brussels on 18 February 2003. 79

832 Cooperation in EU Subsidy and Custom Cases of transmission of information containing personal data.84 This possibility has only been provided for in Article 22.4 of the Europol decision and Article 4.1 of the implementing decision. On the other hand, the cooperation agreements or working arrangements that may be concluded by Europol, among others, with OLAF, may involve the exchange of operational, strategic or technical information, including personal data and classified information. Europol may also, under certain conditions, pass the data to other authorities, agencies and institutions with which it cooperates.85 The administration arrangement with OLAF enables the creation of joint reports and working groups, carrying out mutual consultations and trainings as well as jointly drafting recommendations for national authorities.

2. The Powers of Eurojust and Mutual Arrangements with OLAF in the Field of Detecting Fraud and Irregularities Eurojust86 is another EU institution, which—acting in the field of judicial cooperation in criminal matters—has powers allowing it to undertake actions to combat crimes affecting the financial interests of the EU. Primary objectives of Eurojust include improving cooperation between the competent authorities of the Member States in preventing and combating serious forms of international organised crime. In some situations, due to the fact that some of the information available to Eurojust or through Eurojust may be crucial for the achievement of the objectives and tasks carried out by OLAF, the framework of cooperation between the two institutions is of great important. Of course, the operations of Eurojust are narrowed by the scope of types of crimes that fall within its competence. In the case of other crimes, Eurojust, in accordance with its objectives, may only assist in investigations and prosecutions at the request of the competent authorities of a Member State.87 Cooperation of Eurojust and OLAF is based on the practical agreement on cooperation adopted by these institutions.88 The aim of this agreement is to enhance the fight against fraud, corruption or any other criminal offence or illegal activity affecting the EU’s financial interests and to define to this end the modalities for close cooperation between the two institutions. It was concluded also for the purpose of avoiding duplication of effort by each institution in seeking to achieve their respective goals. This cooperation is governed by three principles: transparency, complementarity of tasks and coordination of efforts.89 Similarly as in the case of cooperation between Eurojust and Europol, the core of the

84 See point 2 Administrative Agreement on Cooperation between the European Commission and the European Police Office and point 3.1.2.1 of the document for the cooperation of Europol with the customs authorities on 2 September 2008, 11216/1/08 REV 1. 85 See Arts 22.3 and 24 Decision. 86 OJ L63/1 amended by Council Decision 2003/659/IHA of 18 June 2003 [2003] OJ L245/44; Council Decision 2009/426/JHA of 16 December 2009 on the strengthening of Eurojust and amending Decision 2002/187/ JHA [2009] OJL 323/20. 87 See Arts 4.1 and 4.2 Council Decision 2009/426/JHA of 16 December 2009 on the strengthening of Eurojust and amending Decision 2002/187/JHA [2009] OJL 323/20. 88 Practical Agreement on arrangements of cooperation between OLAF and Eurojust, signed in Brussels on 24 September 2008. 89 See Art 2.1 of the Administrative Agreement on Cooperation between the European Commission and the European Police Office, signed in Brussels on 18 February 2003.

Cooperation of National Prosecutors, Investigation Agencies 833 cooperation between Eurojust and OLAF is based on regular mutual contacts of these institutions. During the quarterly meetings90 of representatives of OLAF and Eurojust, they exchange descriptions of the cases (case summaries) and share information about the progress and activities on issues already presented. These meetings, as well as further contacts between representatives of Eurojust and OLAF, are aimed at adopting common strategies, setting up priorities for the activities and settling practical problems that may arise during the cooperation under the Agreement. An important objective of these meetings is also to facilitate the representatives of each institution with the possibility of providing assistance to national judicial authorities and prosecutors of EU Member States.91 Cooperation of Eurojust and OLAF, in addition to the above-mentioned case summaries, may also involve the transfer of operational information, participation in operational meetings and any assistance (obviously, in the exercise of the institution’s competence) which is needed by the other institution to effectively discharge its duties. Such cooperation is principally carried out by way of direct contacts between the individuals concerned from OLAF and Eurojust. In cases in which these institutions work together, they must notify the other of the action taken, responses received and of encountered difficulties. Before taking up collaboration with OLAF in a particular case concerning the EU’s financial interests, Eurojust must verify that the competent authorities of the Member States do not oppose such collaboration.92 This principle is reflected in particular in the functioning of joint investigative teams. If either of the institutions concerned collaborates in a joint investigative team created by the Member States, conducting proceedings in respect of fraud, corruption or other criminal acts directed against the EU’s financial interests, it shall inform the other party, and will propose to the Member States to consider the invitation to participate in such a team the other institutions.93 Analogous mechanisms, providing for the possibility to limit the cooperation, are set out in Article 8 of the Agreement—the participation of a representative of OLAF in operational meetings organised by Eurojust is conditional on the decision of a national representative to Eurojust from the country concerned (or at his invitation, or—in the case of an invitation by the President of the College—with the consent of the national representative). On the other hand, when OLAF is the organiser of the event, an invitation by OLAF suffices. In cases concerning fraud, corruption or other crimes against the EU’s financial interests, if Eurojust considers that the information it possesses might be significant from the point of view of administrative liability, it prepares a description of a case (case summary) and transmits it to OLAF for appropriate use (that is investigation and conducting administrative procedure). A corresponding obligation rests on OLAF. If the circumstances of the case being investigated by OLAF indicate the need for judicial cooperation between national authorities of Member States, or between Member States and the Union, and possibly warrant criminal proceedings, OLAF transmits a case summary to Eurojust. When, after receiving a case summary, the respective representatives find cooperation essential, they inform the other institution without undue delay.

90

If necessary they can be held more frequently. In addition, the two institutions can collaborate in the field of professional training. 92 See Art 26.4, formerly Art 26.3 which is referred to by the Agreement. 93 These restrictions do not affect in any way the possibility of assistance in creating or seeking the appointment of the team by the Member States—see Arts 9.2 and 9.3 of the Administrative Agreement on Cooperation between the European Commission and the European Police Office, 18 February 2003. 91

834 Cooperation in EU Subsidy and Custom Cases When working on a specific case, OLAF’s and Eurojust’s representatives can provide each other with information, including personal data, provided that the receiving of such information is necessary for the performance of their tasks. At the same time, this information must be transferred according to the provisions on personal data protection. Every time the party seeking the transfer of certain data must specify the purpose for which it seeks the information. Similarly, as in the case of cooperation between OLAF and Europol, the cooperation between Eurojust and OLAF may also include trends in offences involving fraud, corruption and other acts affecting the financial interests of the European Union. However, it can also provide data on individual criminal structures, their relationships within and outside the European Union, as well as strategies, modus operandi and the functioning of such compounds.

3. The Role of the European Judicial Network in Facilitating Cooperation in the Fields of Offences affecting the EU’s Financial Interests The European Judicial Network (EJN)94 is a network made up of the central authorities responsible for international judicial cooperation. The tasks of this institution are: (i) facilitating the establishment of appropriate contacts between the contact points in different Member States, in order to carry out the functions of the EJN, (ii) organising regular meetings of representatives of Member States, and (iii) continuing to provide current background information, in particular by means of an appropriate telecommunications network. The EJN operates in particular through its contact points, active intermediaries with the task of facilitating judicial cooperation between Member States, particularly in actions to combat serious crime. These points are available to local judicial authorities and other competent authorities in other Member States, whose purpose is to establish the most appropriate direct contacts.

4. Cooperation of the EU Institutions with National Authorities in Conducting Administrative Proceedings The existing framework of institutions and procedures allows different EU bodies to collaborate in cases of activities affecting the EU’s financial interests. Although this largely relates to criminal offences and cooperation of institutions in criminal matters (Europol, Eurojust and the EJN), existing laws and agreements also provide for the possibility of undertaking cooperation between different authorities within administrative procedures. This possibility is based on the assumption that the decisive factor in an effective fight against acts affecting financial interests of the European Union is possession of adequate information, the possibility of its use and effectiveness of EU institutions, which excludes the duplication of their activities.

94

Council Decision 2008/976/JHA of 16 December 2008, OJ L348/130.

Conclusions 835 As mentioned above, the existing provisions provide for the possibility of cooperation between Europol, Eurojust and the EJN with OLAF in combating serious crime, which may also affect the financial interests of the European Union. These three institutions can and should work closely together within the existing framework of cooperation, being equipped with appropriate tools that enable information and data exchange and collaboration in particular cases. Although this work product mainly relates to initiating and conducting criminal proceedings, it can also—in some cases and under specific conditions—be of use to EU and Member States’ institutions conducting administrative proceedings. In that regard the most important is the possibility of cooperation between OLAF and Europol on the one hand, and between OLAF and Eurojust on the other hand. Due to the limited scope of information that can be transmitted to and by Europol, and thus a more general nature of that collaboration, the framework of cooperation established for OLAF and Eurojust plays a decisive role in the fight against activities affecting the EU’s financial interests. Depending on national legal systems and applicable procedures, national authorities of each Member State conducting an administrative proceeding may be able to cooperate with law enforcement and judicial authorities of that state. In such cases, the administrative authorities will have an additional option to benefit from the cooperation framework envisaged for national law enforcement, judicial authorities, Europol, Eurojust and the EJN. Furthermore, taking into account that the structure and functioning of the latter three institutions are based largely on the participation in it of national representatives of the Member States of the European Union such cross-cooperation among criminal and administrative procedures seems even more possible. The existing framework of cooperation on the EU level between Europol, Eurojust and EJN on the one hand, and on the other OLAF, allows the interaction of two main proceedings: criminal and administrative. These institutions competent in a specific type of procedure can therefore undertake an effective and interdisciplinary collaboration in order to achieve objectives set for them by EU law. Considering that conduct of criminal proceedings is an exclusive domain of EU Member States and bearing in mind that the participation of authorities the EU Member State in administration proceedings may be significant, there is a need for a wider study with objective to determine the extent of cooperation between the administrative authorities and law enforcement and judiciary within the individual states.

E. CONCLUSIONS

A couple of remarks may be offered in conclusion to this article. First, it is indisputable that administrative investigations conducted by OLAF, being the principal theme of the report, are one of the elements of the wider institutional system established under EU law for the protection the EU’s financial interests. These investigations are, however, closely interrelated with other proceedings conducted in this area by national and by the EU institutions (mainly the Commission). A synergy effect resulting from the operation of different actors performing various tasks on both the national and the EU levels, but with the same purpose, requires the effective involvement of OLAF in such a system. The European dimension of administrative investigation conducted by OLAF and its independence proves best in cases having an international dimension, that is in investigations in cross-border cases, which effectively cannot be dealt by the Member

836 Cooperation in EU Subsidy and Custom Cases States acting individually, which also mirrors the principle of subsidiarity (Article 5(3) of TEU), being the general principles of the EU law. Secondly, administrative investigations conducted by OLAF are strongly related to proceedings held in that respect by the national authorities. It is because both administrative investigations of OLAF and proceedings of the Member States are focused on identification of irregularities. The notion of irregularity, as defined by Article 1(2) Regulation No 2988/96 covers a wide, almost blanket concept of any infringement of EU (and national) law, causing or having caused a damage to the EU budget, perpetrated by an economic operator. This excludes an abstract qualification of an irregularity as an act belonging to the specific branch of the law. An irregularity may therefore lead to different legal responsibilities (eg civil, administrative, criminal, or its combination) and consequences arising from it (a plain recovery of funds, with no sanction; an administrative sanction or a criminal penalty or a combination of these), which always depends on the provision infringed and legal consequences following from it. It could be thus concluded that due to the wide notion of irregularity, many labels constructed in its respect have conventional character and particular attention is recommended in that sphere. In the context of the cooperation between OLAF holding administrative investigations in EU subsidy cases, and national authorities also conducting these cases, one may recall the principles applied to evidence collected. The underlying principle is that under EU law, national authorities are obliged to acknowledge the evidence collected by OLAF in the framework of its administrative investigations and the final report presented after its closure under the conditions applied to materials collected by ‘national administrative inspectors’. Thus, evidence possessed by OLAF may be exploited in any national proceedings, irrelevant of its legal character, including criminal proceedings. Specific requirements in that respect are governed by the national law, which shadows a principle of national procedural autonomy, with the reservation that national provisions on admitting evidence presented by administrative bodies are applied to OLAF data per analogiam. It is also worth recalling that an important feature of relations between the national authorities and OLAF in the framework of administrative investigations conducted by the latter consists in assistance obligations imposed on the national authorities. This results from the fact that OLAF is not equipped with enforcement powers towards economic operators under investigations. Whereas Member States may fail to provide OLAF with assistance requested, it does not have supervisory instruments at its disposal, with the exception of bringing a proceeding under Article 256 TFEU against the state concerned, which in practice is not used. The possibility of launching such an action could be perceived as an advantage from the point of view of effectiveness of conducting administrative investigations by OLAF, but it could equally be seen as a disadvantage, discouraging future willingness by the Member States to assist on a bona fide basis. Another point concerning cooperation of national authorities and OLAF in the conduct of subsidy cases concerns areas where the legal provisions remain silence. This could be said in regard to follow-up activities and the use of information provided on cases preceded. This is valid both when information is provided by national authorities and employed by OLAF, and when they are provided by OLAF and used by national authorities. Question regarding factual exploitation of data therefore may raise, and in the most extreme case discourage it, although the same exchange of results seems to be a standard element of the cooperation. The same comment could be made on utilisation of data concerning irregularities, which are provided to OLAF by the Member States in the frames of reporting

Conclusions 837 obligation. Despite important efforts needed to collect these data on national level, EU provisions do not provide sufficient requirements on its exploitation, eg its exchange with other Member States or various Directorates-General of the Commission. To conclude the description of present institutional arrangement adopted for protection of the EU financial interest, one could be tempted to have a look into its future. Important change was wrought in that domain by the Treaty of Lisbon which, after years of debate, provided in Article 86 TFEU for a possibility to establish the European Prosecutor’s Office. This encourages assumptions on possible relations between the European Prosecutor and OLAF. Two scenarios are self-evident here, taking the position of OLAF as a criterion. The first alternative could be that OLAF would form a part of the European Prosecutor Office. The second alternative modification would not be so radical, as OLAF would continue its operation as an administrative part of the Commission, next to a European Prosecutor. Each of the scenarios raises different questions, but they share some common denominators. These cover horizontal issues of eg practical arrangement of the European Prosecutor and other EU institution (including Commission and OLAF) and bodies (eg Eurojust, EJN); division of tasks between the above-mentioned authorities in hybrid cases, having criminal and administrative character, each leading to other legal consequences. Many vertical questions also arise, as eg the legal position and competence of the members of the European Prosecutor’s Office/OLAF towards individuals under investigations, or as to the law applicable, or their role in national judicial proceedings.

23 The System of Vertical and Horizontal Cooperation in Administrative Investigations in EU Competition Cases MARTIN BÖSE

Introduction

F

ROM THE VERY beginning of the European integration process, the Commission has been vested with the power to impose fines on undertakings in competition cases. Since the system of fines can be considered to be at the heart of European criminal law (in a broad sense),1 the cooperation mechanisms in EU competition law might be of particular interest when elaborating model rules of criminal investigation and prosecution for a European Public Prosecutor. This article will first give a short introduction to the legal and institutional framework (section A) and then examine the different aspects of cooperation between the Commission and the national competition authorities (vertical cooperation—section B) and the cooperation between the national authorities (horizontal cooperation—section C). Since the subject matter of the research project relates to an institution at the Union level—the European Public Prosecutor—the report will focus on vertical cooperation rather than horizontal cooperation.

A. LEGAL AND INSTITUTIONAL FRAMEWORK

1. Legal Framework (a) Regulation No 1/2003 Vertical and horizontal cooperation in competition cases is mainly based on Regulation (EC) No 1/2003 that has been adopted by the Council on the basis of Article 103 TFEU (ex-Article 83 TEC).2 In order to meet the challenges of an integrated market and the enlargement process, the Council has replaced the former Regulation No 17/623 by a

1 See A Klip, European Criminal Law: an integrative approach 2nd edn (Antwerp, Intersentia, 2009) 170–71, 211–12. 2 Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 TEC [2003] OJ L1/1. 3 Council Regulation (EC) 17 of 6 February 1962 First Regulation implementing Articles 85 and 86 of the Treaty [1962] OJ 013/ 0204.

Legal and Institutional Framework 839 decentralised enforcement system that empowers the national competition authorities (Article 5 Regulation No 1/2003) and national courts (Article 6 Regulation No 1/2003) to apply the EU competition rules (see recitals (1) and (3) of Regulation No 1/2003).4 In order to ensure an effective enforcement of the EU competition rules the national authorities are obliged to also apply Article 101 and Article 102 TFEU where they apply national competition law to agreements and practices which may affect trade between Member States (Article 3 Regulation No 1/2003). As a consequence of decentralisation, the proper functioning of cooperation mechanisms has become a key element of the enforcement of EU competition rules. Due to the new role of national competition authorities, the rules on vertical and horizontal cooperation have been redesigned. Articles 11–13 Regulation No 1/2003 provide for close cooperation between the Commission and the competition authorities of the Member States, in particular as regards the exchange of information. Articles 15 and 16 Regulation No 1/2003 regulate cooperation between the Commission and national courts. Cooperation issues are raised also in the framework of the investigative powers of the Commission (Articles 17ff Regulation No 1/2003), as will be discussed in detail later on (see section B). (b) Regulation No 773/2004 On the basis of Article 33 Regulation No 1/2003, the Commission has adopted implementing provisions concerning the conduct of proceedings by the Commission (Regulation No 773/2004).5 These rules also affect—at least in part—vertical cooperation. For instance, the national competition authorities shall be invited to take part in an oral hearing before the Commission (Article 14 (3) Regulation No 773/2004). (c) Joint Statement of the Council and the Commission In order to enhance vertical and horizontal cooperation, a network of competition authorities has been set up as a forum for discussion and cooperation between the Commission and the national competition authorities (see section A2). Since Regulation No 1/2003 does not explicitly provide for a network of competition authorities apart from a short reference in recitals (15) and (18), the Council and the Commission have adopted a Joint Statement in order to set out a common political understanding on the principles of the functioning of the network.6 Due to its political nature, the Joint Statement does not create any legal rights or obligations (Joint Statement, para 3).7 (d) Network Notice of the Commission On the basis of the principles laid down in the Joint Statement, the Commission has elaborated the details of the new cooperation mechanism and has published them in its notice on

4 See also J Gerber, P Cassinis, ‘Modernisation of European Community Competition Law: Achieving Consistency in Enforcement—Part I and Part II’ (2006) ECLR 10, 11 with further references. 5 Commission Regulation (EC) 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 TEC [2004] OJ No L 123/18. 6 Joint Statement no 15435/02 of the Council and the Commission of 10 December 2002 on the functioning of the network of competition authorities [2002] ADD 1. 7 Case T-339/04 France Télécom [2007] ECR II-00521, para 85.

840 Cooperation in EU Competition Cases cooperation within the network of competition authorities.8 In principle, a notice is not a legally binding instrument, but a working document that has been published for the sake of transparency and legal certainty. However, in adopting and publishing such rules of practice the Commission imposes a limit on the exercise of its discretion and may not depart from these rules in an individual case without giving reasons that are compatible with the principle of equal treatment and the protection of legitimate expectations.9 Thus, the Commission has to comply with the rules laid down in its notice. The same reasoning applies to the national competition authorities that have signed a statement according to which they acknowledge the principles of the notice, and that they will abide by those principles (Network Notice, para 72 and the Annex).10 Since the Commission’s notice refers to the principles of the Joint Statement of the Council and the Commission (Network Notice, para 3), the binding effect of the notice covers the Joint Statement as well.11 Nevertheless, the notice is without prejudice to any interpretation of the applicable Treaty provisions and regulations by the General Court (formerly Court of First Instance) and the Court of Justice (Network Notice, para 69).

2. Institutional Framework In order to enhance cooperation between the Commission and the national competition authorities, the rules on cooperation are complemented by an institutional framework: the Advisory Committee and the European Competition Network (ECN). (a) Advisory Committee The Advisory Committee (Article 14 Regulation No 1/2003) has already been set up by Regulation No 17/62 (Article 10). The Committee is composed of representatives of the competition authorities of the Member States (Article 14(2) Regulation No 1/2003) and shall be consulted by the Commission prior to the taking of decisions in competition cases (Article 14(1) Regulation No 1/2003), in particular with regard to sanctions (fines, penalty payments). In this way, the national competition authorities can express their view on the case and may influence the decision-making of the Commission that shall take the utmost account of the opinion delivered by the committee (Article 14(5) Regulation No 1/2003). The consultation may take place at a meeting chaired by the Commission (Article 14(3) Regulation No 1/2003) or by written procedure (Article 14(4) Regulation No 1/2003). The Committee may deliver its opinion without regard to the absence of some of its members (Article 14(4)5 Regulation No 1/2003), ie the regulation does not provide for a quorum. The Advisory Committee may also deal with cases pending before a competition authority of a Member State (Article 14(7) sub para 1 Regulation No 1/2003). In this regard, the Advisory Committee could serve as a forum for discussion on case allocation, in particular where the Commission intends to initiate proceedings with the effect of relieving national competition authorities of their competence to apply EU competition law (see below 8

Commission Notice on cooperation within the network of competition authorities [2004] OJ C101/43. Case C-189/02 and others Dansk Rørindustri [2005] ECR I-05425, paras 209–11. According to the Commission, competition authorities of all Member States have signed the statement, see the list on http://ec.europa.eu/competition/antitrust/legislation/list_of_authorities_joint_statement.pdf, accessed 1 February 2012. 11 A Leopold, Rechtsprobleme der Zusammenarbeit im Netzwerk der Wettbewerbsbehörden nach der Verordnung (EG) Nr 1/2003 (Baden-Baden, Nomos, 2006) 59. 9

10

Legal and Institutional Framework 841 section B3(a)). However, the Committee shall not deliver a formal opinion on these cases (Article 14(7) sub para 3 Regulation No 1/2003), but may issue an informal statement on the matter (Network Notice para 62). Furthermore, the Advisory Committee may also discuss general issues of EU competition law (Article 14(7) sub para 3 Regulation No 1/2003). It has to be consulted on draft Commission regulations on implementing measures (Article 33(2) Regulation No 1/2003), block-exemption regulations and other notices and guidelines (Network Notice paras 63–64). In these cases, Member States can appoint an additional representative (Article 14(2)2 Regulation No 1/2003). (b) European Competition Network (ECN) In addition to the Advisory Committee the European Competition Network (ECN) has been established as a general framework for vertical and horizontal cooperation, in particular to agree on working arrangements and cooperation methods, to facilitate the exchange of information and to establish a continual dialogue between the competent authorities.12 Members of the network are the Commission and the national competition authorities designated by the Member States (Joint Statement, para 2; Network Notice, para 1). The ECN is not an institution, but a discussion and cooperation forum (Network Notice, para 1). Thus, the network does not have legal personality, nor any autonomous competences or investigative powers. Each competition authority remains fully responsible for ensuring due process in its own cases (Network Notice, para 4) and exercises its powers independently from other network members (Joint Statement, para 7). In the absence of formal decisions to be taken by the ECN, there are no voting rules; the cooperation mechanism relies on consensus building (see eg with regard to case allocation Network Notice, para 18). The cooperation within the network is based on the principles of equality, respect and solidarity (Joint Statement, para 7). In the framework of the ECN, different cooperation and discussion for a have emerged. Apart from the plenary and the working group on cooperation issues special working groups have been established where network members can exchange their experience and views relating to particular sectors of the economy (eg energy, pharmaceuticals, banking and insurance).13 Furthermore, the ECN may provide a forum for elaborating best practice and common rules, as can be illustrated by the ECN Model Leniency Programme.14 In the framework of the ECN, working contacts can be established at case-handler level or between dedicated contact points in each authority.15 In order to facilitate the exchange of information, the Commission has set up an electronic case management system providing access to information on pending cases via intranet (see also section B2(b)).16 12

Gerber, Cassinis (n 4) 10, 15 and 51, 53–54. K Dekeyser, D Dalheimer, ‘Cooperation within the European Competition Network—taking stock after 10 months of case practice’, in Antitrust Reform in Europe: A Year in Ppractice (Brussels, 2005) 18, www.int-bar.org/ images/downloads/Article%20Kris-Dorothe.pdf; S Hossenfelder, ‘Erste Erfahrungen des Bundeskartellamtes mit dem Behördennetzwerk’ (2006) 206 FIW-Schriftenreihe, Schwerpunkte des Kartellrechts 2004 7. 14 European Competition Network, ‘ENC Model Leniency Programme’ (Europa, 29 September 2006) http:// ec.europa.eu/competition/ecn/model_leniency_en.pdf; see also European Competition Network, ‘ENC Model Leniency Programme: Report on assessment on the state of convergence’ (Europa, 13 October 2009) http:// ec.europa.eu/competition/ecn/model_leniency_programme.pdf; Dekeyser, Dalheimer (n 13) 2; See Commission, ‘Report on Competition Policy’ COM (2010) 282 final, 35. 15 Hossenfelder (n 13) 6. 16 Dekeyser, Dalheimer (n 13) 5; Hossenfelder (n 13) 2. 13

842 Cooperation in EU Competition Cases B. VERTICAL COOPERATION

According to Article 11(1) Regulation No 1/2003, the Commission and the national competition authorities apply the EU competition rules in close cooperation. This obligation can be considered to be part of the general duty of loyal cooperation (Article 4(3) TEU) and relates to both the Commission and the Member States. In order to enhance a consistent and coherent application of Article 101 and Article 102 TFEU, the national competition authorities may consult the Commission on any case involving the application of EU competition law (Article 11(5) Regulation No 1/2003). Vertical cooperation involves assistance in investigations (section B1), exchange of information (section B2) and jurisdictional matters (section B3).

1. Investigative Measures As regards investigative measures, the national competition authorities have to assist the Commission’s investigation (see Article 105(1)2 TFEU) whereas—due to its limited competence—there is no correspondent obligation on the Commission. Member States shall assist the Commission in two ways: they assist the Commission in the exercise of its investigative powers (Articles 17-21 Regulation No 1/2003), and undertake inspections at the request of the Commission (Article 20(2) Regulation No 1/2003). (a) Assistance to Investigative Measures Carried out by the Commission According to Articles 17ff Regulation No 1/2003, the Commission is vested with autonomous investigative powers. In general, national competition authorities are to help the Commission to exercise its powers more effectively. Since the Commission’s powers cannot be enforced directly, but only indirectly, ie by imposing fines or penalty payments (Article 23(1) and Article 24(1) lit d, e Regulation No 1/2003) the Commission has to rely on the assistance of the national competition authorities that compensates the Commission’s lack of coercive powers.17 (i) Scope of Cooperation: Investigative Measures of the Commission The Commission’s investigative powers comprise requests for information (Article 18 Regulation No 1/2003), taking voluntary oral statements (Article 19 Regulation No 1/2003) and inspections (Articles 20, 21 Regulation No 1/2003). In particular, the Commission is empowered: — —

to enter any premises, land and means of transport of undertakings and associations of undertakings (Article 20(2) lit a Regulation No 1/2003); to examine the books and other records related to the business, irrespective of the medium on which they are stored (Article 20(2) lit b Regulation No 1/2003);

17 CS Kerse, N Khan, EC Antitrust Procedure, 5th edn (London, Sweet & Maxwell, 2005) 3-064 (with regard to inspections).

Vertical Cooperation 843 — — —

—

to take or obtain in any form copies of or extracts from such books or records (Article 20(2) lit c Regulation No 1/2003); to seal any business premises and books or records for the period and to the extent necessary for the inspection (Article 20(2) lit d Regulation No 1/2003); to ask any representative or member of staff of the undertaking or association of undertakings for explanation on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers (Article 20(2) lit e Regulation No 1/2003); to exercise the above-mentioned powers (Article 20(2) lit a, b, c Regulation No 1/2003) in the framework of an inspection of any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertaking and association of undertakings concerned (Article 21(1), (3) Regulation No 1/2003).

According to the ECJ, these powers imply a right to search for documents which are not already known or fully identified because otherwise it would be impossible for the Commission to obtain the information necessary to carry out the investigation if the undertakings refused to cooperate.18 When exercising its investigative powers, the Commission has to respect the fundamental rights of the undertaking concerned, in particular its rights of defence (recital (37) Regulation No 1/2003). So, the inspection of premises (Articles 20 and 21 Regulation No 1/2003), in particular private homes, must be compatible with the protection of the home (Article 8 ECHR, Article 7 Charter of Fundamental Rights); in that regard the case law of the ECtHR19 has to be taken into account.20 In its decision ordering an inspection, the Commission has to specify the subject matter and purpose of the inspection (Articles 20(4)2 and 21(2)1 Regulation No 1/2003). The purpose of the statement of reasons is to show that the investigative measure is justified and to determine the scope of the undertaking’s duty to cooperate while at the same time safeguarding the rights of defence.21 Therefore, the Commission has to state the essential features of the suspected infringement, the supposed involvement of the undertaking and the kind of evidence sought by the measure.22 In order to establish that the inspection is justified, the Commission is required to show, in a properly substantiated manner, that evidence provides reasonable grounds for suspecting the infringement of which the undertaking subject to inspection is suspected (see also Article 21(2)2 Regulation No 1/2003).23 Further restrictions of the Commission’s investigative powers derive from the rights of defence (Articles 47 and 48 Charter of Fundamental Rights, Article 6ECHR). Although Article 27(2) Regulation No 1/2003 expressly states that the rights of the defence shall be fully respected in the proceedings before the Commission the Court of Justice does not acknowledge a right of the undertaking to remain silent and to refuse to give evidence against itself because otherwise the Commission’s investigative powers would be deprived

18 19

Joined cases C-46/87 and C-227/88 Hoechst AG v Commission [1989] ECR I-02859, para 27. Niemetz v Germany (1992) Series A No 251, para 30ff; Colas Est v Commission ECHR 2002-III 132, para

40ff. 20 21 22 23

Case C-94/00 Roquette Frères [2002] ECR I-09011, paras 29, 52. Hoechst (n 18) para 29; Roquette Frères (n 20) para 47. France Télécom (n 7) para 59; See also Roquette Frères (n 20) paras 48, 81, 83. France Télécom (n 7) para 60.

844 Cooperation in EU Competition Cases of their useful effect (see also recital (23) Regulation No 1/2003).24 Nevertheless, the Commission may not compel an undertaking to provide it with answers which might involve an admission of guilt on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Article 6(2) ECHR, Article 48(1) Charter of Fundamental Rights).25 The reasoning of the Court has provoked severe criticism because it does not seem compatible with the case law of the ECtHR on the privilege against selfincrimination as a constituent element of the right to a fair trial (Article 6(1) ECHR).26 The rights of the defence to be fully exercised require the Commission to respect the confidentiality of written communication between the undertaking and its lawyer if such communications are made for the purpose and in the interests of the client’s right of defence and they emanate from independent lawyers, ie lawyers not bound to the client by a relationship of employment (in-house lawyers).27 The protection of the legal professional privilege even covers preparatory documents that were not exchanged with a lawyer or intended to be sent to a lawyer, but were drawn up exclusively for the purpose of seeking legal advice of a lawyer.28 An undertaking claiming that a document is protected by legal professional privilege is required to demonstrate the confidential nature of the document (eg by specifying the author and the addressee of the document and its objective and context).29 However, the undertaking is not bound to reveal the content, and may even refuse to allow the Commission officials to take a cursory look at the document.30 If the Commission is not satisfied with the materials and explanations provided by the undertaking, it may place a copy of the documents in question in a sealed envelope, and then remove it in order to avoid the risk that the documents will disappear or be manipulated.31 The Commission may not read the document before it has adopted a decision allowing the undertaking to refer the matter to the Court by an action for annulment (Article 263(4) TFEU) and a request for interim relief (Article 278 TFEU).32 This procedure is considered to be necessary to avoid the harm which may be caused to the undertaking’s rights of defence as a result of the Commission reading the contents of a confidential document and improperly adding it to the investigation file because this harm cannot be made good or can only be made good with great difficulty, in particular if the information is used to obtain new evidence against the undertaking.33 24 Case C-374/87 Orkem v Commission [1989] ECR I-03283, paras 33-34; Case C-301/04 P SGL Carbon [2006] ECR I-05915, paras 40ff; Case T-112/98 Mannesmannröhren-Werke v Commission [2001] ECR II-00729, paras 65-66. 25 Orkem (n 24) para 35; SGL Carbon (n 24) para 42; Mannesmannröhren-Werke (n 24) para 67. 26 Funke v France (1993) Serie A no 256-A, paras 41ff; Saunders v United Kingdom ECHR 1996-VI 24, para 68. See for a detailed discussion: C Vocke, Die Ermittlungsbefugnisse der EG-Kommission im kartellrechtlichen Voruntersuchungsverfahren: eine Untersuchung zur Auslegung der Ermittlungsrechte im Spannungsfeld zwischen öffentlichen und Individualinteressen (Berlin, BWV, 2006) 113ff; W Weiß, Die Verteidigungsrechte im EG-Kartellverfahren: zugleich ein Beitrag zu den allgemeinen Rechtsgrundsätzen des Gemeinschaftsrechts (Cologne, Heymann, 1996); For the contrary view see J Burrichter, ‘Vorbemerkungen zu Art 17-22 VO1/2003’ in G Hirsch, F Montag, F J Säcker (eds), Münchener Kommentar: Europäisches und Deutsches Wettbewerbsrecht (Kartellrecht), vol 1 (Munich, C H Beck, 2007) paras 40ff. 27 Case C-155/79 AM & S v Commission [1982] ECR I-01575, paras 21ff; Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (ECJ, 14 September 2010), paras 40ff. 28 Akzo Nobel Chemicals and Akcros Chemicals (n 27) paras 117, 123; See also AM & S (n 27) para 23. 29 AM & S (n 27) para 29; Akzo Nobel Chemicals and Akcros Chemicals (n 27) para 80. 30 AM & S (n 27) para 29; Akzo Nobel Chemicals and Akcros Chemicals (n 27) para 82. 31 Akzo Nobel Chemicals and Akcros Chemicals (n 27) para 83. 32 Ibid paras 85, 88; See also AM & S (n 27) para 32. 33 Akzo Nobel Chemicals and Akcros Chemicals (n 27) paras 86-87.

Vertical Cooperation 845 The national competition authorities assist the Commission in exercising their investigative powers. The need for assistance depends on the type of measure: whereas a request for information can be sent to an undertaking without assistance of the Member States being necessary34 conducting an inspection requires active support by the national authorities (Articles 20(5), (6), 21(4) Regulation No 1/2003). Furthermore, the extent to which assistance has to be granted is dependent upon the binding or non-binding nature of the measure. The investigative measures of the Commission can take one of two forms, ie information may be sought by a (non-binding) request (Article 18(2), Article 19, Article 20(3) Regulation No 1/2003) or by a (legally binding) decision (Articles 18(3), 20(4), 21 Regulation No 1/2003). As far as non-binding measures are concerned, assistance of the national competition authority cannot be considered to be necessary in order to enforce an obligation of a particular undertaking. Nevertheless, at the request of the Commission, the national competition authority shall grant assistance to the Commission in conducting an inspection (Article 20(5) Regulation No 1/2003).35 If appropriate, the national competition authority may grant assistance on its own motion (Articles 19(2) and 20(5) Regulation No 1/2003). On the other hand, Member States are obliged to afford the necessary assistance by means of coercion where an undertaking opposes an inspection ordered by a decision (Article 20(6) Regulation No 1/2003). (ii) Consultation and Information of the National Competition Authority Where the Commission undertakes investigative measures on the territory of a Member State it shall inform the national competition authority of that Member State (Articles 18(5), 19(2), 20(3)2 Regulation No 1/2003). Before ordering an inspection by decision the Commission shall consult the competition authority of the Member State in whose territory the inspection is to be conducted (Articles 20(4)3, 21(2)3 Regulation No 1/2003).36 The information and consultation requirements have different objectives. On the one hand, the national competition authorities shall be informed of the investigations conducted by the Commission in order to facilitate the coordination with investigations on the national level. To that end, the Commission has to inform as well the competition authority of a Member State whose territory is affected by the prohibited conduct (Article 18(5) Regulation No 1/2003). On the other hand, by notifying an inspection in good time (Article 20(3)2 Regulation No 1/2003) the Commission enables the national authority to provide for effective assistance (eg by taking precautionary measures, Article 20(7) Regulation No 1/2003).37 The consultation mechanism seems to follow the same reasoning. The experience of the national authority can help the Commission to assess whether and how an inspection

34 The obligation of the national authorities to provide all necessary information (Art 18(6) Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Arts 81 and 82 of the Treaty [2003] OJ L1/1) is part of the exchange of information and does not refer to an investigative measure against a particular undertaking. 35 Art 20(5) Council Regulation 1/2003 applies to both inspections pursuant to Art 20(3) and Art 20(4) of that regulation, see Burrichter (n 26) para 81. 36 A written procedure is not required, the Commission may consult the national authority even by a phone call, see Akzo Nobel Chemicals and Akcros Chemicals (n 27) para 23. 37 W Jaeger, ‘Art 20 VO 1/2003’ in W Jaeger, P Pohlmann, H Rieger, D Schroeder (eds), Frankfurter Kommentar zum Kartellrecht, 76th supplement (Cologne, Dr Otto Schmidt, 2012) para 33; Kerse, Khan (n 17) 5-032.

846 Cooperation in EU Competition Cases shall be conducted. Similarly, the national authority may participate in the inspection on its own motion (Article 20(5) Regulation No 1/2003: ‘at the request of that authority’). On the other hand, considering that an inspection order seriously interferes with fundamental rights (Article 8 ECHR) the consultation mechanism might also express the Member States’ remaining responsibility for ensuring fundamental rights on their territory.38 Nevertheless, it is the Commission that takes the decision on the inspection order. The national competition authority may raise its concerns in the framework of the consultation procedure but it is still bound by its obligation to cooperate and to assist the Commission in the exercise of its powers. (iii) Powers of the National Competition Authority As far as the national competition authority assists the Commission in conducting its inspection it shall enjoy the same investigative powers as the Commission (Article 20(5)2 Regulation No 1/2003). In this regard, the powers of the national competition authorities are exclusively determined by reference to EU competition law: it does not matter whether national law provides for similar powers or not. On the other hand, for the purpose of assisting the Commission, the national authority may not exercise investigative powers going beyond the ambit of the Commission’s power of inspection (except coercive powers, see below).39 Lending assistance to the Commission, the national authority has to comply with general principles of EU law.40 For instance, the national authority may not seize documents protected by the EU rules on legal professional privilege (see above, section B1(a)(i)).41 If an undertaking opposes the inspection and the use of coercion is necessary to enable the Commission to carry out the inspection recourse to national law is necessary because Regulation No 1/2003 does not provide for coercive powers (Article 20(6) Regulation No 1/2003).42 Consequently, it is for the Member States to determine the conditions under which the national competition authority will afford assistance to the Commission (national procedural autonomy), but they have to ensure that the Commission’s action is effective.43 Insofar even the Commission has to respect the legal guarantees laid down by national law.44 Nevertheless, recourse to national law is strictly limited to the exercise of coercive powers in the framework of Article 20(6) Regulation No 1/2003.45 The question of which documents and business records may be examined in the framework of an inspection conducted by the Commission is determined exclusively in accordance with EU law.46

38 Cf Miersch, ‘Art 20 VO 1/2003’ in E Grabitz, M Hilf, M Nettesheim (eds), Das Recht der Europäischen Union (Munich, 47th supplement, C H Beck, 2012) para 55. 39 Roquette Frères (n 20) para 44; Jaeger (n 37) para 62. 40 Hoechst (n 18) para 33; Roquette Frères (n 20) para 28. 41 A Gronemeyer, D Slobodenjuk, ‘Legal Professional Privilege im Kartellverfahren: Vertraulichkeitsschutz am Scheideweg?’ (2010) 21 Europäisches Wirtschafts-und Steuerrecht 308, 314. See in this regard: Akzo Nobel Chemicals and Akcros Chemicals (n 27) paras 114-15 and 119. 42 Akzo Nobel Chemicals and Akcros Chemicals (n 27) para 119. 43 Hoechst (n 18) para 33; Roquette Frères (n 20) paras 34–35. 44 Hoechst (n 18) paras 33–34; Roquette Frères (n 20) para 34. 45 Jaeger (n 37) para 65. 46 Akzo Nobel Chemicals and Akcros Chemicals (n 27), Opinion AG Kokott, para 172.

Vertical Cooperation 847 (iv) Authorisation of a Judicial Authority An express reference to national law is made in Article 20(7) Regulation No 1/2003: if assistance of the national authorities according to Article 20(6) Regulation No 1/2003 requires a judicial authorisation according to national law the Commission (or the national competition authority) shall apply for such an authorisation. Such authorisation may also be applied for as a precautionary measure in so far as there are grounds for apprehending opposition to the investigation or attempts at concealing or disposing of evidence (Article 20(7)2 Regulation No 1/2003).47 As to the inspection of private premises EU law by itself requires a judicial authorisation (Article 21(3) Regulation No 1/2003) and, by this, has—at least in part—harmonised a procedural guarantee.48 The Court of Justice has elaborated detailed rules on the purpose and scope of judicial control by the national court having jurisdiction to grant the authorisation mentioned above (see recital (27) Regulation No 1/2003).49 These rules have been codified in Articles 20(8) and 21(3) Regulation No 1/2003. As follows from the context (Article 20(6) and (7) Regulation No 1/2003), the review carried out by the national court may not go beyond the examination to establish that the Commission decision is authentic50 and that the coercive measures in question are neither arbitrary nor excessive having regard to the subject matter of the inspection (Article 20(8)1 Regulation No 1/2003), in particular to the seriousness of the suspected infringement, the importance of the evidence sought and the likelihood of that evidence to be found (Article 21(3)2 Regulation No 1/2003).51 It is not up to the national court to examine the necessity and the lawfulness of the inspection ordered by the Commission; the Commission’s decision is subject to review only by the Court of Justice (Articles 20(8)3 and 4, and 21(3)4 and 5 Regulation No 1/2003).52 Correspondingly, the decision of the national court is not subject to judicial review by the Court of Justice.53 In its assessment of whether the coercive measures envisaged are neither arbitrary nor excessive the national court may ask the Commission, directly or through the national competition authority, for detailed explanations in particular on the grounds for suspecting infringement of the EU competition rules, on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned (Articles 20(8)2, 21(3)3 Regulation No 1/2003) and on the importance of the evidence sought and the likelihood that business records relating to the subject matter are kept in the premises for which the authorisation is requested (Article 21(3)3 Regulation No 1/2003).54 If the national court considers that the information communicated by the Commission is not sufficient it is required, in compliance with the obligation to cooperate in good faith, to contact the Commission directly or through the national competition authority and to ask for additional information before taking a final decision on the authorisation.55 Since 47

Roquette Frères (n 19) para 74. J Burrichter TT Hennig, ‘Art 21 VO 1/2003’ in U Immenga, E J Mestmäcker (eds), Wettbewerbsrecht, vol 1, Kommentar zum Europäischen Kartellrecht, 5th edn (Munich, C H Beck, 2012) para 36. 49 Hoechst (n 18) para 35; Roquette Frères (n 20) para 38ff. 50 See in this regard Amtsgericht Bonn, Decision of 27 September 2002—50 Gs 968/02, (2003) Neue Zeitschrift für Strafrecht 688. 51 See also Roquette Frères (n 20) paras 36, 40, 79–80. 52 Ibid paras 39, 51. 53 France Télécom (n 7) para 53. 54 See also Roquette Frères (n 20) para 61. 55 ibid paras 90ff; See also France Télécom (n 7), para 53. 48

848 Cooperation in EU Competition Cases judicial review by the national court is limited to proportionality issues and may not render the investigations carried out by the Commission ineffective the national court may not demand to be provided with the evidence and information in the Commission’s file (Article 20(8)3, Article 21(3)4 Regulation No 1/2003).56 On the one hand, physical transmission could give rise to problems with regard to parallel investigations in several Member States and delay considering the time national authorities may need to consider potentially complex and voluminous documents.57 On the other hand, when sending the file to the national court the Commission will not be able to guarantee the anonymity of its sources.58 The jurisdiction of the Court (and the corresponding provisions in Regulation No 1/2003) has been criticised for undermining procedural safeguards by limiting the competence of the national court.59 Although the scope and the necessity of the inspection have to be examined on the basis of EU law and the relevance of national law is limited to the proportionality of coercive measures effective judicial review requires the court to examine the evidence and to assess whether there are reasonable grounds for suspecting an infringement of EU competition rules. Judicial review by the ECJ cannot be regarded as an effective remedy because Regulation No 1 /2003 does not provide for ex ante judicial review; an action of annulment (Article 263(4) TFEU) will not provide the undertaking with the means of preventing irreversible consequences resulting from an unlawful inspection (see above, section B1(a)(i) with regard to the legal professional privilege).60 (b) Inspections at the Request of the Commission Instead of undertaking the inspection by itself the Commission may request the national competition authority to carry out an inspection which the Commission considers to be necessary or which it has been ordered by decision (Article 22(2)1 Regulation No 1/2003). The Member States are obliged to grant the request (Article 105(1)2 TFEU). By lodging a request, the Commission is given the opportunity to save its own resources. However, the Commission rarely used this instrument because inspections carried out by national authorities are considered to be unsuitable for cases involving inspections in more than one Member State.61 The new legal framework of vertical cooperation and the creation of the European Competition Network might change the situation.62 It is left up to the discretion of the Commission whether to conduct the inspection by itself (Articles 20, 21 Regulation) or to communicate a request to the national competition authority.63

56

Roquette Frères (n 20) paras 62ff. Ibid para 66. Ibid paras 64–65. 59 See in detail F Toepel, ‘Durchsuchung im Auftrag der Europäischen Kommission—Eine Besprechung von AG Bonn, Beschluss vom 29.9.2002—50 Gs 968/02, zugleich vom Urteil des EuGH vom 22.10.2002—Rs C-94/00—EuGH, NJW 2003, 35 “Roquette Frères”’ (2003) 23 Neue Zeitschrift für Strafrecht 633–34; Vocke (n 26) 74ff. 60 Colas Est (n 19) paras 46 and 48–49. 61 Kerse, Khan (n 17) 5-033; Leopold (n 11) 146. 62 Kerse, Khan (n 17) 5-033. 63 France Télécom (n 7) para 87. 57 58

Vertical Cooperation 849 (i) Scope of Cooperation: Inspection of Premises of the Undertaking The Commission may request the national authority to undertake an inspection of undertakings and associations of undertakings (Article 22(2)1 and Article 20(1), (4) Regulation No 1/2003). The provision does not cover the inspection of other premises (Article 21 Regulation No 1/2003), nor any other investigative measures.64 (ii) Assistance of the Commission Commission officials may assist the national competition authority at the request of the Commission (Article 22(2)3 Regulation No 1/2003). The same applies if the national competition authority requests for assistance by the Commission (Article 22(2)3 Regulation No 1/2003). (iii) Powers of the National Competition Authority The national competition authority conducting the inspection exercises its powers in accordance with national law (Article 22(2)2 Regulation No 1/2003). In the framework of Article 22(2) Regulation No 1/2003 the national competition authority has no investigative powers under EU law (see by contrast Article 20(5) Regulation No 1/2003). However, the investigative powers of the national authority are limited by the scope of the request, ie the national authority may not extend the ambit of the inspection requested by the Commission.65 Since Member States applying EU law are held to respect the fundamental rights guaranteed by Article 6 TEU66 and the Charter of Fundamental Rights (see Article 51(1)1) some scholars have taken the view that national competition authority has to respect the limitations of investigative powers the Court of Justice has derived from the rights of the defence, in particular the legal professional privilege (above, section B1(a)(i) and (iii)).67 However, German court practice rejected this argument stating that the legal professional privilege could not be considered to be a fundamental right and still refers exclusively to the relevant national provisions.68 Nevertheless, in the context of Article 22(2) Regulation No 1/2003 the EU rules on the legal professional privilege shall apply because otherwise the Commission will obtain information that would not be available under an inspection carried out by the Commission itself.69 Since the exercise of these powers might result in a circumvention 64 R Bechtold, and others, ‘Art 22 VO 1/2003’ in EG-Kartellrecht, 2nd edn (Munich, C H Beck, 2009) para 4; J Burrichter, TT Hennig, ‘Art 22 VO 1/2003’ in U Immenga, E J Mestmäcker (eds), Wettbewerbsrecht, vol 1, Kommentar zum Europäischen Kartellrecht, 5th edn (Munich, C H Beck, 2012) para 41. 65 Leopold (n 11) 148. 66 Case C-260/89 ERT v DEP [1991] ECR I-02925, para 42; Roquette Frères (n 20) para 25. 67 Bechtold, § 59 GWB para 16; T Kapp ‘Vertraulichkeit der Anwaltskorrespondenz im Kartellverfahren—Neue Entwicklungen’ (2003) 53 WuW 142, 145; T Kapp, M Schröder ‘Legal Privilege des EG-(Kartell-)Verfahrenrechts: Ist § 97 Abs. 2 Satz 1 StPO gemeinschaft’rechtswidrig?’ (2002) 52 WuW 555, 559ff; W Weiß, ‘Grundrechtsschutz im EG-Kartellrecht nach der Verfahrensnovelle’ (2006) 17 EuZW 263, 266; M Wissmann, ‘Rechtsschutz bei Beschlagnahme im EG-Nachprüfungsverfahren’ (2002) 13 EWS 165, 173. 68 District Court (Landgericht) Bonn, Decision of 29 September 2005, Case 37 Qs 27/05, (2007) Neue Zeitschrift für Strafrecht 605 (607). 69 For instance, according to German law the authority may seize documents protected by the EU rules on legal professional privilege if these documents are not in the custody of the lawyer, see § 97(2)1 German Code of Criminal Proceedings; see in this regard Gronemeyer, Slobodenjuk (n 41) 312.

850 Cooperation in EU Competition Cases of the limitations of the Commission’s powers the investigative powers of the national authorities shall be restricted to the same extent.70 In any case, the Commission may not use the information (see below section B2(a)(ii)).71

2. Exchange of Information According to Article 28(1) Regulation No 1/2003, information collected by the Commission (Articles 17-21 Regulation No 1/2003) or on behalf of the Commission (Article 22(2) Regulation No 1/2003) shall be used only for the purpose for which it was acquired. However, the principle of purpose limitation applies without prejudice to Article 12 Regulation No 1/2003 that provides for a general power of the Commission and the national competition authorities to exchange information. To some extent (Article 11(2)-(4) Regulation No 1/2003), the Commission and the national authorities are even obliged to provide one another with the information necessary to ensure a proper functioning of the network. (a) Power to Exchange Information (i) The Principle of Purpose Limitation: Application of EU Competition Law Article 12(1) Regulation No 1/2003 empowers the Commission and the national competition authorities to exchange information and to use this information in evidence.72 As an argumentum a maiore ad minus suggests, the power includes any other forms of use of the exchanged information (eg initiating proceedings) as well (see below section B2(a)(ii)).73 According to the principle of purpose limitation, this power is limited to proceedings in which the EU rules on competition shall be applied (Article 12(1) Regulation No 1/2003). The provision applies not only to information that has been acquired for this purpose but also to information that has been collected by a national competition authority for the purpose of applying national law and that shall now be used for the enforcement of Articles 101 or 102 TFEU.74 The protection of professional secrecy (Article 339 TFEU) does not impose any limitations on the exchange of information within the European Competition Network,75 but prohibits the network members from disclosing any information acquired or exchanged in the framework of Regulation No 1/2003 and covered by the obligation of professional secrecy (Article 28(2)1 Regulation No 1/2003). This obligation applies in particular to 70 S Barthelmeß ‘Art 22 VerfO’ in U Loewenheim, K M Meessen, A Riesenkampff (eds), Kartellrecht: Deutsches und Europäisches Recht, Kommentar, 2nd edn (Munich, C H Beck, 2009) para 3. See for the contrary view Burrichter, Hennig (n 64) para 42. 71 Barthelmeß (n 70); Burrichter, Hennig (n 64); Leopold (n 11) 149. 72 K Dekeyser, D de Smijter, ‘The Exchange of Evidence Within the ECN and how it contributes to the European co-operation and co-ordination in cartel cases’ (2005) 32(2) LIEI 161, 163. 73 Cf S Lubig, Beweisverwertungsverbote im Kartellverfahrensrecht der Europäischen Gemeinschaft (BadenBaden, Nomos-Verl-Ges, 2008) 165. 74 A Bardong, ‘Art 12 VO 1/2003’ in G Hirsch, F Montag, FJ Säcker (eds), Münchener Kommentar: Europäisches und Deutsches Wettbewerbsrecht (Kartellrecht), vol 1 (Munich, C H Beck, 2007) 19; Kerse, Khan (n 17) 5-013. 75 Dekeyser, de Smijter (n 72) 169; P Gussone, R Michalczyk, ‘Der Austausch von Informationen im ECN—wer bekommt was wann zu sehen?’ (2011) 19 Europäische Zeitschrift für Wirtschaftsrecht 130; T Klose, C Horstkotte, ‘Art 28 VO 1/2003’ in W Jaeger, P Pohlmann, H Rieger, D Schroeder (eds), Frankfurter Kommentar zum Kartellrecht, 71st supplement (Cologne, Dr Otto Schmidt, 2010) para 28.

Vertical Cooperation 851 business secrets and other confidential information (Network Notice, para 28 lit a).76 When providing the Commission with information the undertaking should identify the documents which they consider to contain business secrets or other confidential information (Article 16(3) Regulation No 773/2004) and which, as a consequence, should not be disclosed to any other (non-competition) authorities of the Member States77 or third parties (Article 16(1) Regulation No 773/2004), in particular by granting access to the Commission’s file (Article 27(2)2 Regulation No 1/2003).78 By keeping business secrets within the network this concept provides for an appropriate protection of confidential information (Network Notice, para 28 lit a).79 (ii) Use of Evidence Against Undertakings The exchange of information raises problems with regard to fundamental rights, in particular the rights of the defence because the Commission or a national competition authority might obtain information that it could not have collected under its own procedural rules.80 On the other hand, the exchange of information is an indispensable element of the decentralised enforcement of EU competition law by national competition authorities. This is why the Council has made the use of the information exchanged subject to very limited restrictions. As to proceedings against undertakings, the information shall only be used in evidence for the purpose of applying Articles 101 or 102 TFEU and in respect of the subject matter for which it was collected by the transmitting authority (Article 12(2)1 Regulation No 1/2003). These requirements specify the principle of purpose limitation by reference to the conduct the undertaking is suspected of and the corresponding provision of EU law (Articles 101 or 102 TFEU).81 The latter limitation does not apply with regard to the parallel application of national competition law if that does not lead to a different outcome (Article 12(2)2 Regulation No 1/2003). What is even more important, Article 12(2) Regulation No 1/2003 does not prohibit other forms of use of the information exchanged: thus, the receiving authority may use the information in order to initiate proceedings against the undertaking concerned.82 In contrast to the former case law of the European Court of Justice,83 the Council did not provide for additional safeguards for the protection of fundamental rights of undertakings because the rights of defence enjoyed by undertakings in the various systems were considered to be sufficiently equivalent (recital 16 of Regulation No 1/2003). This assumption

76

Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v Commission [2007] ECR II-04225, para 63. See in this regard Case T-39/90 SEP v Commission [1991] ECR II-01497, paras 56–57; Gussone, Michalczyk, (n 75) 133; Kerse, Khan (n 17) 5-010. 78 See in this regard Commission Notice on the rules for access to the Commission file [2005] OJ C325/7, paras 17ff. 79 Dekeyser, de Smijter (n 72) 169. 80 Cf Case C-67/91 Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada [1992] ECR I-04785, paras 35ff; Case C-60/92 Otto v Postbank [1993] ECR I-05683, paras 15, 20–21. 81 Lubig (n 73) 164; D Reichelt, ‘To what extent does the co-operation within the European Competition Network protect the rights of undertakings?’ (2005) 42 Common Market Law Review 745, 779; R Smits, ‘The European Competition Network: Selected Aspects’ (2005) 32 (2) LIEI 175, 181. 82 Kerse, Khan (n 16) 5-012; Lubig (n 73) 165; See also Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada (n 80) para 39. 83 See n 80. 77

852 Cooperation in EU Competition Cases has been criticised as manifestly ill-founded.84 As the national and European rules on the privilege against self-incrimination and the legal professional privilege reveal, the procedural laws still differ significantly.85 As regards the legal professional privilege, Advocate General Kokott recently touched upon this issue when rejecting the argument that a legal professional privilege applicable at national level could be eroded through the system for the exchange of information.86 The Advocate General did not examine this issue in detail, but noted that Article 12 Regulation No 1/2003 is open to an interpretation which, on the one hand, is compatible with fundamental rights and, on the other hand, for the purposes of sincere cooperation (Article 4(3) TEU), does not require any competition authority involved to do anything which could be at odds with the provisions applicable to it in respect of legal professional privilege.87 Such an interpretation can be based upon the wording of Article 12(1) of the Regulation, that grants a power, but not an obligation to use the information in evidence.88 As a consequence, national law might hinder the national authority to use information transmitted by the Commission in evidence if this information could not have been collected on the basis of the corresponding national rules of procedure.89 As recital (16) Regulation No 1/2003 reveals (‘Notwithstanding any national provision to the contrary’), the exchange (and use) of information is subject to limitations derived from national law.90 So, information transmitted by the Commission might not be used if the national authority were not entitled to collect it by exercising its investigative powers under national law.91 By contrast, the prevailing opinion refers to the clear wording of Article 12(2) Regulation No 1/2003 and to the primacy of EU law and, therefore, opposes the use of evidence being subject to any restrictions based on national law.92 Any restriction to the powers of Article 12 Regulation No 1/2003 has to be based upon fundamental rights and the rights of the defence enshrined in Article 6 TEU and the Charter of Fundamental Rights.93 So, the exchange of information must comply with the EU rules on legal professional privilege only. As a consequence, the rights of defence guaranteed by EU law may not be undermined by a national authority transmitting information that has been collected in the framework of national proceedings on applying national competition law and that could not have been collected according to Arts 17ff Regulation No 1/2003 (see also above section B1(b) (iii)).94 Thus, the Commission may neither use this information in evidence nor to initiate an investigation.95

84

Leopold (n 11) 167; Reichelt (n 81) 780–81. Leopold (n 11) 167. 86 Akzo Nobel Chemicals and Akcros Chemicals (n 27), Opinion AG Kokott, paras 135ff. 87 Akzo Nobel Chemicals and Akcros Chemicals (n 27), Opinion AG Kokott, para 137. 88 Weiß (n 67) 267. 89 GK De Bronett, ‘Art 12’ in Kommentar zum europäischen Kartellverfahrensrecht: VO 1/2003 (Munich, Luchterhand, 2005) para 6; Kerse, Khan (n 17) 5-013 and 5-014; Leopold (n 11) 169. 90 See also Kerse, Khan (n 17) 5-012. 91 According to Gussone, Michalczyk (n 75) 132 information may not be used if it cannot be used in evidence in the Member State that has transmitted the information. 92 Bardong (n 74) para 45; Dekeyser, de Smijter (n 72) 163–64; Hossenfelder (n 13) para 13; Lubig (n 73) 171ff; W Wils, ‘Community Report’ in D Cahill (ed), The Modernisation of EU competition law enforcement in the EU: FIDE 2004 National Reports (Cambridge, Cambridge University Press, 2004) 661, 732–33. 93 Bardong (n 74) para 85; Lubig (n 73) 173. 94 Lubig (n 73) 173; See also District Court (Landgericht) Bonn, Decision of 29 September 2005—Case 37 Qs 27/05, (2007) Neue Zeitschrift für Strafrecht 605 (607). 95 Otto v Postbank (n 80) para 20. 85

Vertical Cooperation 853 (iii) Use of Evidence Against Natural Persons Problems arise from the different legal framework in the law of the Union and the national law of Member States as regards the sanctioning of natural persons.96 Therefore, the Council has provided for additional safeguards in Article 12(3) Regulation No 1/2003. For the purpose of imposing sanctions on natural persons, information exchanged pursuant to Article 12(1) Regulation No 1/2003 may only be used in evidence if the law of the transmitting authority foresees sanctions of a similar kind in relation to an infringement of Articles 101 or 102 TFEU (Article 12(3) first indent Regulation No 1/2003). This provision is based on the consideration that imposing sanctions of a similar kind will go hand in hand with a ‘similar’ level of protection of the rights of defence (see recital (16) Regulation No 1/2003; Network Notice para 28 lit c). Thus, similarity shall not be established by reference to the qualification by national law (criminal sanctions vs administrative sanctions), but by the type of sanction, ie custodial sanctions, financial sanctions such as fines and other personal sanctions, eg disqualification of directors (Network Notice para 28 lit c).97 If the applicable law provides for different sanctions, the most serious type will be considered.98 Evidence will be admitted a fortiori if the law of the transmitting authority provides for more serious sanctions because the level of protection will be deemed to be even higher than the standard according to the law of the receiving authority.99 As regards vertical cooperation, EU competition law does not provide for sanctions against individuals, but only against undertakings (Article 23 Regulation No 1/2003). Thus, information transmitted by the Commission may not be used in evidence on the basis of Article 12(3) first indent Regulation No 1/2003.100 In the absence of sanctions of a similar kind, the information may be used in evidence if the information has been collected in a way which respects the same level of protection of the rights of defence of natural persons as provided for under the national rules of the receiving authority (ad hoc equivalence); however, in this case, the information may not be used to impose custodial sanctions (Article 12(3) second indent Regulation No 1/2003). In this regard use of evidence is still subject to the condition that both the transmitting and the receiving authority have the power to impose custodial sanctions (Network Notice, para 28 lit c; see Article 12(3) first indent Regulation No 1/2003). According to Regulation No 1/2003, natural persons cannot be fined and, correspondingly, they do not enjoy any rights of the defence. Thus, information transmitted by the Commission may only be used if the corresponding investigative power of the receiving authority is not subject to any restrictions deriving from the rights of defence of the natural person concerned. By contrast, insofar as the individual has to provide information requested by the Commission (Articles 18 and 20(2) lit e Regulation No 1/2003), a use of that information in proceedings against the individual would be incompatible with

96

Dekeyser, de Smijter (n 72) 172. Bardong (n 74) para 91; ibid 172; Lubig (n 73) 168. 98 Lubig (n 73) 168. 99 Bardong (n 74) para 96; Lubig (n 73) 169. 100 C Swaak, P Mollica, ‘Leniency Applicants Face to Modernisation of EC Competition Law’ (2005) European Competition Law Review 507, 513. The argument that a natural person can be fined under EU law if he/she is the owner of the undertaking (see Lubig (n 73) 166) does not lead to another conclusion because the rights of defence in the framework of proceedings before the Commission cannot be considered to be equivalent to the defence rights of an individual. 97

854 Cooperation in EU Competition Cases the privilege against self-incrimination (Article 6(1) ECHR; see above section B1(a)). As a consequence, information the Commission has been given by an undertaking pursuant to its obligations under Regulation No 1/2003 cannot be used in evidence in proceedings against the representative who has provided the information on behalf of the undertaking.101 In any case, information transmitted by the Commission may not be used in order to impose custodial sanctions on natural persons (Article 12(3) second indent Regulation No 1/2003). (iv) Transmission of Information Submitted in Leniency Applications The Commission102 and several Member States have adopted leniency programmes related to cartel investigations. These programmes grant favourable treatment (immunity from or reduction of a fine) to undertakings which cooperate with the competition authority in the investigation of cartel infringements. The aim of the leniency programmes is to facilitate the detection of secret cartels and also thereby to deter the undertakings from participating in infringement of competition law (Leniency Notice, para 3; Network Notice, para 37). Since a Union-wide system of fully harmonised leniency programmes does not exist so far, the undertakings have to apply for leniency to all competition authorities which have competence to apply the EU competition rules in the particular case (Network Notice, para 38). However, the proper functioning of the leniency program will be affected by an exchange of information, in particular by the transmission of the information submitted by the undertaking to a competition authority of a Member State that has not adopted a leniency programme.103 This is why the Network Notice provides for limitations to the exchange of information within the European Competition Network (paras 39–42). These restrictions refer to the obligation to inform other members of the network pursuant to Article 11(2) and (3) Regulation No 1/2003 (see below, section B2(b)) but to the exchange of information (Article 12 Regulation No 1/2003) in particular (Network Notice paras 40–41). According to these rules104 information voluntarily submitted by an undertaking applying for leniency may only be transmitted to another member of the network with the consent of the applicant (Network Notice para 40). This requirement also applies to information that has been obtained by means of an inspection or any other investigative measures that could not have been carried out except as a result of the leniency application (Network Notice, para 40). Once consent to the transmission has been given it may not be withdrawn (Network Notice, para 40). However, no consent of the applicant is required if the undertaking has no legitimate interest that the information is not transmitted to another competition authority: This applies in particular in cases in which the receiving authority has also received a leniency application relating to the same infringement from the same applicant as the transmitting authority (Network Notice, para 41 No 1). Furthermore, information may be transmitted without consent if the receiving authority grants de facto immunity by providing a written commitment that it will not use the information and any other information collected

101

Bardong (n 74) para 99; Bechtold and others (n 64) para 7; Vocke (n 27) 171. Commission Notice on Immunity from fines and reduction of fines in cartel cases [2006] OJ C298/17. 103 Bardong (n 74) para 52; S Brammer, ‘Concurrent Jurisdiction under Regulation 1/2003 and the Issue of Case Allocation’ (2005) 42 Common Market Law Review 1383, 1409; Dekeyser, de Smijter (n 72) 165–66. 104 As to the binding effect of the Network Notice, see above section A1(d); See also Network Notice, para 42. 102

Vertical Cooperation 855 on the basis of the transmitted information in order to impose sanctions on the leniency applicant, any other legal or natural person covered by the favourable treatment under the leniency programme of the transmitting authority or any employee or former employee of any of the persons mentioned above (Network Notice, para 41 No 2). Finally, consent is not required for the transmission of information that has been collected by a network member under Article 22(1) Regulation No 1/2003 on behalf of the competition authority to whom the undertaking has applied for leniency (Network Notice, para 41 No 3). This exception is based on the consideration that the information is collected solely for the proceedings before the requesting authority (see also Network Notice, para 39 and below section B2(b)) so that the transmission of the information will not affect the position of the undertaking under the leniency programme. For the same reasons, the information may be transmitted to the requested authority insofar as the information is needed to carry out the investigation.105 Although the wording of this exception (Network Notice, para 41 No 3) is limited to the horizontal exchange of information (cf Article 22(1) Regulation No 1/2003), its rationale applies as well to the exchange of information between the Commission and a national competition authority (cf Article 22(2) Regulation No 1/2003).106 (b) Obligations to Provide Information Article 12 Regulation No 1/2003 contains a power, but no express obligation to transfer relevant information to other members of the network.107 As to vertical cooperation, a general obligation follows from Article 18(6) Regulation No 1/2003, according to which governments and competition authorities of the Member States shall provide the Commission with all information necessary to carry out its duties. Similarly, if a national authority conducts an investigation at request of the Commission (Article 22(2) Regulation No 1/2003), it follows from the purpose of this provision that the information collected must be transmitted to the Commission. In any case, the limitations set out in the framework of Article 12 Regulation No 1/2003 apply also (see above, section B2(a); see also Article 22(1)2 Regulation No 1/2003). By contrast, if a network member requests the Commission for information, the general duty to close and sincere cooperation (Article 11(1) Regulation No 1/2003; see also Article 4(3) TEU) does not create an obligation to comply with the request, but to a speedy and benevolent examination whether the information will be transmitted.108 However, some scholars hold that such an obligation can be construed by analogy to the obligation of the Commission to provide a national court with the information necessary to assess the lawfulness of coercive measures (see above section B1(a)(iv)).109 Express obligations to exchange information are prescribed in Article 11 Regulation No 1/2003. The rationale underlying these obligations is to detect multiple procedures and to ensure that cases are dealt with in accordance with the principles of case allocation laid

105

Bardong (n 74) para 57. The reason for the wording might be that in practice the Commission does not request national competition authorities to carry out investigations (Art 22(2) Council Regulation 1/2003), but to assist the Commission in the exercise of its own investigative powers (Arts 20, 21 Regulation 1/2003), see Kerse, Khan (n 17) 5-033. 107 Kerse, Khan (n 17) 5-012. 108 Bardong (n 74) para 49; See the criticism on the missing obligation: C Oelke, Das Europäische Wettbewerbsnetz (Baden-Baden, Nomos, 2006) 208ff. 109 Roquette Frères (n 20) para 93; France Télécom (n 7) para 52 ; Dekeyser, de Smijter (n 72) 164–65; see for the contrary view Bardong (n 74) para 49. 106

856 Cooperation in EU Competition Cases down in the Network Notice (Network Notice, paras 16 and 17; see below section B3). To this end, the national competition authorities, when acting under Article 101 or Article 102 TFEU, shall inform the Commission in writing before or without delay after commencing the first formal investigative measure (Article 11(3)1 Regulation No 1/2003).110 In 2009, the Commission was informed of 129 new investigations launched by national competition authorities.111 The national authorities will also provide the Commission with updates when a relevant change occurs (Network Notice, para 17). Correspondingly, the Commission shall provide the national competition authorities with copies of the most important documents collected with a view to enforce the EU rules on competition and, at the request of a national competition authority with further information necessary for the assessment of the case (Article 11(2) Regulation No 1/2003; see also Network Notice, para 17). The purpose of the Commission’s obligation is twofold: first, to inform Member States of the proceedings before the Commission (see above); second, to allow the national authority to give its views to the Commission and to enable the Commission to evaluate the information.112 The Commission and the Member States’ competition authorities will inform each other of pending cases by means of a standard form containing limited details of the case, such as the competent authority and the products, territories and undertakings concerned and the alleged infringement (Network Notice, para 17) and the closure of proceedings (Network Notice, para 49). Since the information shall enable the members of the network to address a reallocation of the case, the Commission and the national authorities may use the information exchanged in order to initiate proceedings on their own. However, the receiving authority must respect the prohibitions on the use of information voluntarily submitted by a leniency applicant (see above section B2(a)(iv)): the information may not be used as the basis for starting an investigation under EU competition law or, if the information has been transmitted to a national authority, under national competition law (Network Notice, No 39). In this regard, the receiving authority is required to suffer ‘acute amnesia’.113 However, the national authority still has the power to open an investigation on the basis of information received from other sources or to request for information according to Article 12 Regulation No 1/2003 (Network Notice, para 39); in the latter case, the authority to which the leniency application was submitted may transmit the information if the conditions laid down in the Network Notice are met (Network Notice, paras 39 and 40-41; see above section B2(a)(iv)). Another obligation to inform the Commission arises under Article 11(4) Regulation No 1/2003: before taking a decision on requiring an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption regulation, the national competition authority shall provide the Commission with a summary of the case and the envisaged decision or any other document indicating the proposed course of action (Article 11(4)1, 2 Regulation No 1/2003). The purpose of this obligation is to ensure a uniform and consistent application of the EU competition rules by allowing the Commission

110 The obligation is not triggered by informal steps or proceedings dealing with the application of national competition law only, see Brammer (n 103) 1383, 1407. 111 Commission, ‘Report on Competition Policy’ COM (2010) 282 final, 35. 112 Dirección General de Defensa de la Competencia v Asociación Española de Banca Privada (n 80) para 34; Kerse, Khan (n 17) 5-019. 113 Swaak, Mollica (n 100) 513.

Vertical Cooperation 857 to make written observations on the case or to relieve the national authority from the case (Network Notice, paras 43, 46; see also Article 11(6) Regulation No 1/2003 and below section B3(.a)). The information will be made available to the other network members also (Joint Statement, para 10). In 2009, the Commission was informed of 69 envisaged decisions to be taken by national competition authorities.114

3. Case Allocation and Jurisdiction (a) Parallel Competences and the Preponderant Role of the Commission The decentralisation of the enforcement of EU competition law has created a system of parallel competences in which both the Commission (Article 4 Regulation No 1/2003) and the national competition authorities (Article 5 Regulation No 1/2003) are empowered to apply Articles 101 and 102 TFEU. In principle, each network member decides on its own whether or not to investigate case (Network Notice, para 5). However, the new system does not call into question the leading role of the Commission in the enforcement of the EU competition rules.115 According to Article 11(6)1 Regulation No 1/2003, the Commission may, by initiating proceedings, relieve the national competition authorities of their competence to apply Articles 101 and 102 TFEU. Although the Commission has to consult a national authority already dealing with the case before taking over the case (Article 11(6)2 Regulation No 1/2003), the provision illustrates that the empowerment of the national competition authorities has not taken place at the expense of the powers of the Commission; thus the new system has been described as an asymmetrical division of powers rather than as a (de-)centralised system.116 Nevertheless, the effects of Article 11(6) Regulation No 1/2003 do not extend to courts, insofar as they act as review courts in respect of a decision the national competition authority has taken (Article 35(3)2 Regulation No 1/2003). The initiation of proceedings is a formal act by which the Commission expresses its intention to adopt a decision in order to enforce the EU competition rules (Article 2(1) Regulation No 773/2004; Network Notice, para 52). However, the Commission may exercise its investigative powers (Article 17ff Regulation No 1/2003) before initiating proceedings (Article 2(3) Regulation No 1/2003). Thus, in this stage of proceedings parallel investigations of the Commission and a national competition authority are not prohibited by Article 11(6) Regulation No 1/2003.117 If the Commission has initiated proceedings, the effect of Article 11(6) Regulation No 1/2003 is limited to the case the Commission is dealing with. So the national authority may still conduct investigations against other undertakings and, in particular, against natural persons.118 However the national authority is relieved of its competence to assess the same infringement under national law because it may not investigate the case without applying 114

Commission, ‘Report on Competition Policy’ COM (2010) 282 final, 35. France Télécom (n 7) paras 46, 48. F Rizzuto, ‘Parallel Competence and the Power of the EC Commission under Regulation 1/2003 According to the Court of First Instance’ (2008) 29 ECLR 286, 297. 117 See also France Télécom (n 7) para 81. 118 A Bardong, ‘Art 11 VO 1/2003’ in G Hirsch, F Montag, FJ Säcker (eds), Münchener Kommentar: Europäisches und Deutsches Wettbewerbsrecht (Kartellrecht), vol 1 (Munich, C H Beck, 2007) paras 86–87. 115 116

858 Cooperation in EU Competition Cases the EU competition law (Article 3 Regulation No 1/2003) and has lost its competence by the Commission taking over the case.119 (b) Principles of Case Allocation Notwithstanding the preponderant role of the Commission, a system of parallel competences creates a need for rules on the division of work between the Commission and the national authorities in order to avoid multiple proceedings relating to the same infringement that cause a superfluous burden on the undertakings concerned and an unnecessary waste of the limited resources of the authorities involved. Such rules have been laid down in the Network Notice (paras 5ff) according to which the investigation should be conducted by an authority that is ‘well placed’ to deal with the case (Network Notice, para 7). A network member is considered to be well placed if the following cumulative conditions are met (Network Notice, paras 8 No 1-3): — — —

the alleged infringement has substantial direct actual or foreseeable effects on competition within its territory, is implemented within or originates from its territory; the authority is able to effectively bring to an end the entire infringement (if appropriate, by imposing adequate sanctions); the authority can gather, possibly with the assistance of other network members, the evidence required to prove the infringement.

The assessment of these criteria can result in an investigation conducted by a single national competition authority, by several competition authorities of different Member States or by the Commission (Network Notice, paras 5 and 9ff); the objective is that each case should be handled by a single competition authority (recital (18) Regulation No 1/2003). The Commission is particularly well placed if the alleged infringement has effects on competition in more than three Member States (Network Notice, para 14), if the case is closely linked to other provisions of EU law which may be exclusively or more effectively applied by the Commission or if the Union’s interest requires the adoption of a Commission decision to develop EU competition policy or to ensure effective enforcement (Network Notice, para 15). On the other hand, a single national authority is well placed if the infringement substantially affects competition mainly within the territory of that single Member State (Network Notice, para 10). The principles of case allocation are intended to make the division of labour work quickly and efficiently, and not to create individual rights to have the case dealt with by a particular authority (Network Notice, para 31). Although the Network Notice has become a legally binding instrument (see above section A1(d)), its wording clearly reveals that the principles of allocation do not confer any obligations upon the Commission and the national competition authorities.120 The non-binding character of these principles reflects the need for flexible and pragmatic solutions121 and is illustrated by the wording of these principles themselves (Network Notice, para 8: ‘An authority can be considered to be well placed …’)

119

Ibid para 85; Bechtold et al (n 64) para 18; Wils (n 92) 714. France Télécom (n 7) para 83; For the contrary view see C Canenbley, M Rosenthal, ‘Cooperation Between Antitrust In- and Outside the EU: What does it Mean for Multinational Corporations?’ Part 1 (2005) ECLR 106, 110; Leopold (n 11) 86, 99. 121 Dekeyser, Dalheimer (n 13) 6–7. 120

Vertical Cooperation 859 and the principle that each member of the network retains full discretion whether to investigate a case or not (Network Notice, para 5).122 Accordingly, the General Court has held that the principles of case allocation do not require the Commission to refrain from initiating proceedings (cf Article 11(6) Regulation No 1/2003) or from carrying out an inspection (Article 20 Regulation No 1/2003) in a case a national competition authority is already dealing with.123 Such an obligation cannot be derived from the duty to close and sincere cooperation (Article 11(1) Regulation No 1/2003; Article 4(3) TEU) either because the general obligation to cooperate is specified by the provisions mentioned above that explicitly empower the Commission and the national competition authorities to conduct parallel proceedings.124 The lack of binding rules on the allocation of cases has provoked criticism with regard to the principle ‘nullum crimen, nulla poena sine lege certa’ (Article 7 ECHR, Article 49(1) Charter of Fundamental Rights) because the outcome of the case allocation and, as a consequence, the sanctioning regime to be applied, can hardly be predicted in advance.125 On the other hand, the absence of binding rules and, as a consequence, an obligation to investigate an alleged infringement might result in an enforcement lacuna.126 (c) Procedure In order to ensure that cases are dealt with by a well-placed competition authority, the network members inform each other at an early stage of the proceedings (Network Notice, para 16; see with regard to Article 11(2) and (3) Regulation No 1/2003 above section B2(b)). If a network member considers reallocation to be necessary, the competition authorities concerned shall resolve the matter swiftly, normally within a period of two months (Network Notice, para 18). The competition authority dealing with the case at the end of this period shall deal with the case until the completion of the proceedings; reallocation of the case at a later stage shall only occur if the facts known about the case change substantially (Network Notice, para 19). Due to the preponderant role of the Commission (above section B2(a)), this mechanism is modified with regard to vertical case allocation. If the Commission is the first authority to initiate proceedings the national authorities may no longer deal with the case (Article 11(6) Regulation No 1/2003; see also Network Notice, para 53, and above section B3(b)). If, however, a national authority has started an investigation and has informed the Commission pursuant to Article 11(3) Regulation No 1/2003, the Commission will decide whether to initiate proceedings (Article 11(6) Regulation No 1/2003) during the initial allocation period of two months (Network Notice, para 54). Before initiating proceedings the Commission will have to consult the national authority that is already dealing with the case (Article 11(6)2 Regulation No 1/2003). After the allocation phase has passed without the Commission taking over the case recourse to Article 11(6) Regulation will in principle be limited to the following situations (Network Notice, para 54 lit a–e): 122

France Télécom (n 7) para 84. Ibid paras 86, 90. Ibid para 86. 125 Brammer (n 103) 1411ff, 1414; See also P Voet van Vormizeele, ‘Die Bewährung der Kartellrechtsreform durch die VO 1/2003 aus Unternehmenssicht’ in J Schwarze (ed), Rechtsschutz und Wettbewerb in der neueren europäischen Rechtsentwicklung (Baden-Baden, Nomos, 2010) 11, 23. 126 Brammer (n 103) 1406. 123 124

860 Cooperation in EU Competition Cases —

— —

national authorities envisage conflicting decisions in the same case or a decision which is obviously in conflict with consolidated case law or they are unduly drawing out proceedings in the case; there is a need to adopt a Commission decision in order to develop EU competition policy; the national authorities concerned do not object.

If the Commission has taken the view that the national competition authority is ‘well placed’ to deal with the case, it may reject a complaint relating to the same case (Article 13(1)2 Regulation No 1/2003). Although the undertakings concerned are informed of a reallocation by the competition authorities involved (Network Notice, para 34), the principles laid down in the Network Notice are not intended to grant individual rights of the undertakings concerned (above, section B3(b)).127 Case allocation is considered as a purely internal matter of the network members to which undertakings have no access (Article 27(2)3 and 4 Regulation No 1/2003).128 However, the General Court has held that the principle of sound administration (Article 41 Charter of Fundamental Rights) entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case when deciding whether and how to investigate a case another network member is already dealing with.129 Although the Court found that the Commission had not failed in its obligation under this principle,130 the judgment seems to follow the view that the Commission has to consider all relevant aspects of the case when conducting parallel investigations (Articles 20, 21 Regulation No 1/2003) or relieving a national competition authority from its competence to deal with a case (Article 11(6) Regulation No 1/2003).131 However, the obligation to state reasons (Article 20(4)2 Regulation No 1/2003) does not refer to these aspects because the relevant provision precisely defines the essential information that has to be given in the reasons of the decision.132 The Commission’s decision to initiate proceedings and to relieve national competition authorities from their competence to investigate a case is a preparatory act; it is not a decision and, thus, cannot be challenged under Article 263(4) TFEU.133 The same reasoning will have to apply to a (re)allocation by transferring the case to a national competition authority. In that regard, an action for annulment can be considered to be inadmissible because the termination of the proceedings does not harm the undertaking concerned.134 The allocation of a case can be challenged only indirectly in the framework of judicial review of the final decision on the case: In its assessment on the lawfulness of the decision the Court will have to examine whether the competition authority that has taken the decision was competent

127

Smits (n 81) 180; See for the contrary view Leopold (n 11) 135. Brammer (n 103) 1416. France Télécom (n 7) para 94. 130 France Télécom (n 7) paras 97–99. 131 Rizzuto (n 116) 293. 132 France Télécom (n 7) para 106. 133 Case C-60/81 IBM v Commission [1981] ECR I-02639, para 21. By contrast, the Member State that has been relieved of its competence may challenge the decision of the Commission by an action for annulment (Art 263 (1) and (2) TFEU), see Leopold (n 11) 132; Wils (n 92) 661, 703; For the contrary view see Bechtold and others, ‘Art 11’ in EG-Kartellrecht, 2nd edn (Munich, C H Beck, 2009) para 17. 134 Wils (n 92) 702–03. 128 129

Vertical Cooperation 861 to act on the matter.135 Whether the correspondent acts of a national competition authority are subject to judicial review depends on national law.136 (d) Ne Bis in Idem According to the ne bis in idem principle (Article 50 Charter of Fundamental Rights; see also Article 54 Convention implementing the Schengen Agreement), an infringement of the EU competition rules that has been investigated and penalised by the Commission cannot then be punished by the competent national competition authority, and vice versa.137 The identity of the case is established by the same facts, the same offender and a single legal right to be protected.138 The unity of the legal right is beyond doubt because both the Commission and the national competition authority apply EU competition law (Articles 101 and 102 TFEU).139 However, in its judgment on a ‘vertical’ ne bis in idem, the Court of Justice held that the third condition (identity of the facts) was not met in the present case.140 At first sight, the Network Notice does not seem to comply with the ne bis in idem principle because it expressly provides for parallel proceedings in several Member States relating to the same case (Network Notice, para 7). Furthermore, Article 13(2) Regulation No 1/2003 merely states that a network member may reject a complaint against an agreement or practice that has already been dealt with by another competition authority. This flexibility should not be limited to cases where the competition authority was unable to collect the evidence necessary to prove the infringement, but apply as well to decisions on the substance of the case (Network Notice, para 22).141 However, this result can be reconciled with the rules set out above if the effects on the territory of different Member States are considered to be different facts.142 Consequently, a sanction imposed by a national authority does not hinder the Commission from imposing a sanction on the undertaking with regard to effects of the same practice within the territory of other Member States. By 135 Brammer (n 104) 1423; T Lampert and others, EG-Kartellverordnung Praxiskommentar (Heidelberg, Verlag Recht und Wirtschaft GmbH, 2004) para 205; Leopold (n 11) 135. 136 Brammer (n 104) 1418; Lampert and others (n 136) para 203; Leopold (n 11); Wils (n 93) 702. 137 Case C-204/00 P and others Aalborg Portland ea v Commission [2004] ECR I-0123, paras 339–40, Opinion of AG Jarabo Colomer; Case C-213/00 P Italcementi—Fabbriche Riunite Cemento v Commission [2004] ECR I-0230, paras 87, 95; Case T-144/07 and others ThyssenKrupp Liften Ascenseurs v Commission (CFI, 13 July 2011) para 162. 138 Aalborg Portland (n 138) paras 339–40, Opinion of AG Jarabo Colomer, para 89. 139 ThyssenKrupp Liften Ascenseurs (n 138) para 162; See in this regard Aalborg Portland (n 140) paras 339–40, Opinion of AG Jarabo Colomer, paras 91–97, rejecting the reasoning of the former jurisdiction of Case C-14/68 Walt Wilhelm ea v Bundeskartellamt [1969] ECR I-00001; For the contrary view see Case T-224/00 Archer Daniels Midland et Archer Daniels Midland Ingredients v Commission [2003] ECR II-02547, para 89. 140 Aalborg Portland (n 138) paras 339–40, Opinion of AG Jarabo Colomer, Italcementi—Fabbriche Riunite Cemento (n 138) paras 98ff. 141 Referring to the ne bis in idem principle, some scholars argue in support of an obligation to reject complaints if a decision on the substance of the case has been taken by another network member, see G Dannecker, O Körtek, ‘General report’ in G Dannecker, O Jansen (eds) Competition Law Sanctioning in the European Union: the EU-law influence on the national law system of sanctions in the European area (The Hague, Kluwer Law International, 2004) 1, 95; Weiß (n 68) 266. 142 S Hossenfelder, ‘Reform of European Competition Law: Changes in the cooperation between competition authorities and the effects on the sanctioning system’ Competition Law Sanctioning in the European Union: the EU-law influence on the national law system of sanctions in the European area (The Hague, Kluwer Law International, 2004) 165, 174; See also E Paulis, C Gauer, ‘La réforme des règles d’application des articles 81 et 82 du Traité’ (2003) 7 Journal des tribunaux 65, 70.

862 Cooperation in EU Competition Cases contrast, if the Commission has imposed a fine on the undertaking, another punishment by a national would be in breach with the ne bis in idem principle.143 However this restrictive interpretation of the ne bis in idem principle (relating to the first situation) does not seem convincing: Article 54 Convention Implementing the Schengen Agreement (as interpreted by the Court of Justice) also applies to EU competition law (see below section C3(d)). As a consequence, the fact that the prohibited conduct has effects within the territory of different Member States does not hinder the application of the ne bis in idem principle (see below section C3(d)). So, if the national competition authority has taken a final decision on the case and has imposed a sanction upon the undertaking, the Commission may not impose a penalty for the same infringement of EU competition law. This will not apply if the national authority has just dropped the case because a decision stating that there are grounds for action (Article 5 sent 2 Regulation No 1/2003) is not considered to be a final decision on the merits.144

C. HORIZONTAL COOPERATION

Article 11(1) Regulation No 1/2003 imposes a general obligation upon the national competition authorities (above, section B) that applies to horizontal cooperation as well. Similarly to vertical cooperation, the duty to cooperate closely with other national authorities is related to investigations on behalf the competition authority of another Member State, to the exchange of information and to jurisdictional matters. In principle, the rules on horizontal cooperation correspond broadly to those on vertical cooperation. However, due to the eminent role of the Commission, vertical cooperation involves particular duties of the Member States, whereas horizontal cooperation (at least in part) adheres to the traditional concept of international cooperation in administrative and criminal matters. Nevertheless, the report focuses on the legal framework of Regulation No 1/2003 and will not deal with the general framework of international cooperation.145

1. Investigations According to Article 22(1)1 Regulation No 1/2003, a national competition authority may carry out an investigative measure at the request of the competition authority of another Member State. Article 22(1) Regulation No 1/2003 does not expressly impose an obligation, but a power to grant the request (see also recital (28) of Regulation No 1/2003).146 However, 143 Bardong (n 119) para 107; A Klees, ‘Der Grundsatz ne bis in idem und seine Auswirkungen auf die Zusammenarbeit der Kartellbehörden im European Competition Network (ECN)’ (2006) 56 WuW 1222, 1228. 144 See in this regard: Case C-375/09 Tele2 Polska (ECJ, 3 May 2011) para 20ff; see in particular with regard to the ne bis in idem principle the Opinion of AG Mazák, ibid para 30. 145 See in this regard: O Jansen, ‘The Systems of International Cooperation in Administrative and Criminal Matters in Relation to Regulation EC 1/2003’ in G Dannecker, O Jansen (eds) Competition Law Sanctioning in the European Union: the EU-law influence on the national law system of sanctions in the European area (The Hague, Kluwer Law International, 2004) 257ff. 146 Bechtold and others, ‘Art 22 VO 1/2003’ in EG-Kartellrecht, 2nd edn (Munich, C H Beck 2009) para 2; Bischke, ‘Art 22 VO 1/2003’ in G Hirsch, F Montag, F J Säcker (eds), Münchener Kommentar: Europäisches und Deutsches Wettbewerbsrecht (Kartellrecht), vol 1 (Munich, C H Beck, 2007) para 3; Burrichter (n 65) paras 17–19.

Horizontal Cooperation 863 the requested authority shall examine the request in the light of the principle of close and sincere cooperation (Article 11(1) Regulation No 1/2003 and Article 4(3) TEU).147 The information collected shall be transmitted and used pursuant to the rules on the exchange of information (Articles 22(1)2 and 12 Regulation No 1/2003; see below section C2). (a) Purpose and Scope Investigative measures based upon Article 22(1) Regulation No 1/2003 shall be conducted for the sole purpose of establishing whether there has been an infringement of Article 101 or Article 102 TFEU, ie Article 22(1) provides no legal basis for the enforcement of national competition law.148 The investigation on behalf of another network member is limited to the suspected infringement and the requested measure.149 Unlike Article 22(2) Regulation No 1/2003, the provision is not limited to inspections, but covers any other fact-finding measure the requesting authority considers to be necessary. (b) Powers of the Requested Authority Article 22(1)1 Regulation No 1/2003 empowers the requested competition authority to carry out investigative measures on behalf and for the account of the requesting authority. However, this power is limited by renvoi to the law of the requested state (Article 22(1)1 Regulation No 1/2003: ‘under its national law’). Thus, the requested authority has to abide by the provisions on its investigative powers laid down by its national law (Network Notice, para 29; eg the requirement of reasonable grounds for suspecting an infringement of EU competition law).150 The same applies to restrictions based on fundamental rights (eg legal professional privilege) and procedural safeguards (judicial order, eg a search warrant). Since the requested authority does not conduct the investigation on its own, but on behalf of the authority of another Member State, a competence to investigate the case in the framework of domestic proceedings (ie on the basis of the territoriality and the effects principle) is not required.151 In principle, the powers of the requested authority under Article 22(1) Regulation No 1/2003 are not limited by the law of the requesting Member State.152 However, the requested authority is bound by the purpose and scope of the request (above, section C1(a)) and may not take an investigative measure not complying with it. Furthermore, the national competition authority has to respect the fundamental rights set out by EU law (legal professional privilege) when investigating infringements of Articles 101 or 102 TFEU on behalf of another network member (cf above, section B1(b)(iii)).153

147

Burrichter (n 65) para 17; Lampert et al (n 136) para 421. Supreme Court of Austria, Decision of 15 July 2009, Case 16 Ok 7/09, Wirtschaft und Wettbewerb, Entscheidungssammlung—WuW/E 04/2010, KRInt 281 (284). 149 Burrichter (n 65) para 28. 150 Supreme Court of Austria, Decision of 15 July 2009, Case 16 Ok 7/09, Wirtschaft und Wettbewerb, Entscheidungssammlung—WuW/E 04/2010, KRInt 281 (285); Burrichter (n 65) paras 15–16, 26. 151 Supreme Court of Austria, Decision of 15 July 2009, Case 16 Ok 7/09, Wirtschaft und Wettbewerb, Entscheidungssammlung—WuW/E 04/2010, KRInt 281 (285). 152 Burrichter (n 65) para 27. 153 S Barthelmeß, LP Rudolf, ‘Art 22 VerfVO’ in U Loewenheim, KM Meessen, A Riesenkampff (eds), Kartellrecht: Deutsches und Europäisches Recht, Kommentar, 2nd edn (Munich, C H Beck, 2009) para 32. 148

864 Cooperation in EU Competition Cases (c) Powers of the Requesting Authority The competition authority may request an investigative measure to be taken only insofar as it is empowered to take such a measure in the framework of domestic proceedings; otherwise the national competition authority could circumvent limitations of its investigative powers by requesting another network member to collect the information under Article 22(1) Regulation No 1/2003.154 Unlike the provision on vertical cooperation (Article 22(2) Regulation No 1/2003), Article 22(1) Regulation No 1/2003 does not provide for a right of the requesting authority to participate in the investigation. It depends upon the national law of the requested Member State whether the requesting authority shall be allowed to assist the requested authority (see in this regard § 50(4) of the German Act against Restraints of Competition).155

2. Exchange of Information In principle, the exchange of information between the national competition authorities follows the general rules set out in Articles 12 and 11 Regulation No 1/2003. (a) Transfer of Information Article 12(1) Regulation No 1/2003 empowers the national competition authorities to exchange information with each other in the framework of the network. In particular, a national authority that has started an investigation on an infringement of Articles 101 or 102 TFEU may provide the competition authorities of the other Member States with the information that has been made available to the Commission (Article 11(3)2 and (4)3 No 1/2003). If this information has been transmitted the receiving authorities shall be informed about the closure of the proceedings by the transmitting authority (Network Notice, para 49). However, any exchange of information has to respect the principle of purpose limitation, ie the information may not be used but for the application of EU competition law (Article 12(1) Regulation No 1/2003; above, section B2(a)(i)). The transfer and use of information is limited by the rules on the exchange of information submitted in a leniency application (Network Notice, paras 37ff; above, section B2(a)(iv)). (b) Use of Information in Evidence The use of information in evidence is subject to the rules set out in Article 12(2) and (3) Regulation No 1/2003 (above, section B2(a)(ii) and (iii)). Just as in the framework of vertical cooperation, the question arises as to whether the protection of fundamental rights requires additional safeguards in order to prevent the receiving authority to use information that it could not have collected by exercising its investigative powers under national law (cf above, section B2(a)(ii)).

154 155

Ibid para 32; Burrichter (n 65) para 10. Barthelmeß, Rudolf (n 154) para 29.

Horizontal Cooperation 865 Since the wording of Article 12(2) and 12(3) Regulation No 1/2003 does not contain any form of renvoi to national law, it is held that the restrictions set out in this provision are exclusive and provide for sufficient safeguards for the rights of the defence, in particular as regards the use of information in evidence against natural persons (Article 12(3) Regulation No 1/2003). On the basis of this approach, the use of information in evidence will not be subject to any further restrictions.156 So, information may be used in evidence to impose custodial sanctions if the law of the transmitting authority foresees such kind of sanction in relation to an infringement of Articles 101 or 102 TFEU as well (Article 12(3) first indent Regulation No 1/2003).157 However, the use of information in evidence must comply with the fundamental rights of the Union (Article 6 TEU), in particular with the rules on the legal professional privilege.158 By contrast, the assumption that legal systems providing for similar sanctions provide for an equivalent protection of fundamental rights (Article 12(2) and (3) first indent) has provoked severe criticism (see above section B2(a)(ii)).159 Moreover, these rules do not hinder a national authority from evading the rules limiting its investigative powers by taking recourse to the use of information collected by another network member not subject to such restrictions.160 As a consequence, information transmitted shall be admitted in evidence only insofar as the information could have been collected according to the law of the receiving authority. So, if according to the law of the receiving authority the legal professional privilege applies to in-house lawyers the receiving authority may not use evidence that enjoys protection under these provisions, but has been collected in another Member State that does not afford such protection. This approach results in a ‘double standard’: the use of information collected by an investigative measure has to comply with the law of both the transmitting and the receiving Member State.161 The German legislator partially followed this reasoning adopting a provision according to which prohibitions on the use of evidence which are based on constitutional law shall remain unaffected by the rules on the exchange of information within the network (§ 50a(3)4 Act against Restraints of Competition).162 According to the opinion that national authorities when applying EU law have to respect the jurisdiction of the Court of Justice (above, section B1(b)(iii)) the EU rules on the legal professional privilege will make the double standard amount to ‘triple standard’.163 (c) Absence of an Obligation to Exchange Information The national competition authorities are not obliged to exchange information with competition authorities of other Member States. Unlike vertical cooperation, horizontal cooperation within the network does not provide for an obligation to notify the starting of an investigation (Article 11(3)2 and 11(4)3 regulation No 1/2003; see also

156

Dekeyser, de Smijter (n 73) 171. Ibid 173; Lubig (n 75) 172. 158 Lubig (n 75) 172–73. 159 Ibid 170; Leopold (n 11) 167; Reichelt (n 82) 781; Weiß (n 68) 267. 160 Kerse, Khan (n 16) 5-014; Weiß (n 68) 267–68. 161 De Bronett (n 90) para 6; Leopold (n 11) 169; Weiß (n 68) 267; see also Reichelt (n 82) 782. 162 Weiß (n 68) 267; see the explanatory memorandum, Bundestags-Drucksache No 15/3640, 62 (with reference to the privilege against self-incrimination). 163 Weiß (n 68) 267. 157

866 Cooperation in EU Competition Cases below section C3(c)). However, the requested authority shall examine a request for information in the light of the principle of close and sincere cooperation (Article 11(1) Regulation No 1/2003 and Article 4(3) TEU; above section C1).164

3. Case Allocation and Jurisdiction (a) Parallel Competences and Case Allocation Regulation No 1/2003 empowers the national competition authority to apply and enforce the EU competition rules (Article 5 Regulation No 1/2003), but does not provide for any rules on conflicts of jurisdiction between the Member States (above section B3(a)).165 As a consequence, the scope and the limits of jurisdiction are determined by the national law of the Member States. The principles of case allocation laid down in the Network Notice do not derogate the competences of the national competition authorities under national law, but provide for (non-binding) guidelines in order to facilitate an efficient division of work (Network Notice, para 5; above section B3(b)). According to those principles, it has to be established whether a national competition authority is ‘well placed’ to investigate the case (Network Notice, para 8ff; above section B3(b)). The Network Notice provides not only for investigations conducted by the Commission or a single national competition authority (Network Notice, paras 10-11 and 14-15; above section B3(b)), but also for parallel action by national competition authorities of two or three Member States (Network Notice, paras 12-13). Parallel proceedings are considered to be appropriate where the alleged infringement has substantial effects on competition mainly in the territories of these Member States and the action of only one national competition authority would not be sufficient to bring the entire infringement to an end (Network Notice, para 12). (b) Procedure Although Regulation No 1/2003 does not provide for an obligation the cooperation mechanism under the Network Notice requires the national competition authorities to inform each other of pending cases (Network Notice, para 16, 17; above section B3(c)). If a competition authority of another Member State considers reallocation to be necessary the matter shall be resolved swiftly, normally within a period of two months (Network Notice, para 18). The national competition authority (or authorities) dealing with the case at the end of this period shall deal with the case until the completion of the proceedings; reallocation of the case at a later stage shall only occur if the facts known about the case change materially (Network Notice, para 19). If the national authorities concerned do not reach an agreement, the Commission may resolve the conflict by initiating proceedings on its own (Article 11(6) Regulation No 1/2003; see above section B3(a)); the Commission, however, is not empowered to confer the investigation of a case upon a particular Member State.166

164 165 166

Bardong (n 75) para 49-50. Brammer (n 104) 1402. Leopold (n 11) 113.

Horizontal Cooperation 867 After the allocation phase a national authority may suspend the proceedings or reject a complaint relating to the same case (Article 13(1)1 Regulation No 1/2003). If several national competition authorities investigate the case in parallel action they are required to coordinate their investigations to the extent possible; to this end it might be useful to designate a lead authority (Network Notice, para 13). However, this will not affect the responsibility of each national authority for conducting its own proceedings (Network Notice, para 13). Although the principles on case allocation do not grant individual rights to the undertakings concerned the national competition authorities have to respect the principle of sound administration when assessing their competence to deal with a case (above section B3(c)). Whether the decision to investigate a case or not is subject to judicial review depends upon national law.167 The principles of EU law might suggest that such a decision cannot be challenged directly, but indirectly made subject to judicial review by challenging the final decision on the infringement (above section B3(c)).168 (c) Ne Bis in Idem Although the ne bis in idem principle (Article 50 Charter of Fundamental Rights) is part of the fundamental principles of EU law (Article 6 TEU), it does not seem to be fully respected in the framework of EU competition law: according to Article 13(2) Regulation No 1/2003, national competition authorities merely may reject a complaint if an authority of another Member State has already dealt with the case (see also Network Notice, para 22) and the Network Notice (para 12) expressly provides for parallel investigations in several Member States (above section B3(d)). These provisions are implicitly based on a narrow interpretation of the ne bis in idem principle making the identity of the facts dependent upon the effects on the territory of the Member State concerned (above section B3(d)). However, as regards horizontal cooperation, this interpretation is not compatible with Article 54 of the Convention implementing the Schengen Agreement expressly stating that Member States have to respect the ne bis in idem principle (Article 50 Charter of Fundamental Rights) and may not prosecute a person if the same facts have already been investigated in another Member State and a final decision on the sanctioning of this person has been taken. Accordingly, the interpretation of Article 54 of the Convention implementing the Schengen Agreement (CISA) given by the Court of Justice will have to apply to horizontal cooperation within the European Competition Network.169 Thus, the only relevant criterion is the identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.170 So, the fact that the prohibited conduct has effects within the territory of different Member States does not hinder the application of the ne bis in idem principle.171 However, this reasoning is based on the assumption that the competence of the national authority is not limited to effects within its own territory, but extends to effects within the territory of other Member States

167

Brammer (n 104) 1418; Wils (n 94) 702. Brammer (n 104) 1418. 169 Böse, ‘Der Grundsatz “ne bis in idem” im Wettbewerbsrecht der Gemeinschaft und Art 54 SDÜ’ (2007) 18 EWS 202, 205ff; Klees (n 144) 1227). 170 Case C-436/04 Van Esbroeck [2006] ECR I-02333, para 36. 171 See in this regard ibid paras 25 and 37; See also Böse (n 170) 205ff; Klees (n 144) 1227; Wils (n 93) 705–06. 168

868 Cooperation in EU Competition Cases as well.172 On the basis of this uniform interpretation of the ne bis in idem principle, a final decision on the sanctioning of an infringement of Articles 101 or 102 TFEU will hinder the national competition authority of another Member State wishing to impose sanction for the same conduct.

D. CONCLUSION

The detailed rules on the cooperation mechanisms and the European Competition Network might in some respect serve as a ‘toolbox’ containing instruments that could be applied, as well to cooperation in criminal matters. However, when adapting these instruments to a European Public Prosecutor the differences between cooperation in criminal matters and the cooperation of competition authorities in the framework of administrative proceedings must be taken into account. That having been said, the following conclusions may be drawn from the report and might serve as a basis for further discussion: —

Unlike administrative proceedings (and sanctions) a European criminal justice system calls for legally binding rules that have been adopted by the European legislator. The need for a flexible and pragmatic cooperation notwithstanding the investigations of a European Public Prosecutor should be guided by law rather than by communications of a current (best) practice (above, section A1(c) and d)). — The establishment of an advisory committee (above, section A2(a)) might provide a forum for discussion and consultation in matters of vertical cooperation by which the national judicial authorities are given the opportunity to express their view on a case or cooperation matters and to influence the decision-making of the European Public Prosecutor. — In order to enhance vertical cooperation and case allocation in particular it might be useful to establish an electronic case management system (above, section A2(b)) and to oblige both the European public prosecutor and the national prosecutors to transmit basic information on pending cases (above, section B2(b)). — As to investigative powers, it should be kept in mind that criminal investigations involve fundamental rights aspects going far beyond an administrative investigation. Nevertheless, in order to enhance vertical cooperation it might be considered whether national public prosecutors should be attributed the same investigative powers as the European Public Prosecutor (above, section B2(a)(iii); see also section B2(iii)). Since it can be doubted whether judicial review ex ante by a national court can be regarded as a sufficient procedural safeguard (above, section B2(a)(iv)) a judge of freedoms might be established at the European level. Before taking investigative measures, the national public prosecutor should be consulted (above, section B2(a)(ii)). — The exchange of information should be subject to legally binding rules on powers and obligations of both the European and the national public prosecutors; this applies in particular to the protection of sources (above, sections B2(a)(iv), (b)). A ‘free flow’ of information and evidence limited by the principle of purpose limitation only (above, section B2(a)) has even been opposed in the framework of cooperation in administrative proceedings; the problems arising from different human rights standards (above, 172

See in this regard Böse (n 170) 207–08; Klees (n 144) 1227; Wils (n 93) 706–07.

Conclusion 869

—

—

173

sections B1(a)(iii), (b)(iii), B2(a)(ii) and (iii)) suggest a fortiori that the use of the information in evidence should be subject to both the law of the receiving and the transmitting authority. In any case, it has to be taken into account that unlike in EU competition law the trial will always be held at a national court which implies at least a tendency to the application of national law of procedure (lex fori) to the admission of evidence. Case allocation should be subject to legally binding rules providing for substantive criteria balancing the need for flexibility and the principles of transparency and predictability (above, sections B3(a), (b)). The procedural rules shall provide for information and consultation mechanisms and empower the European Public Prosecutor to relieve a national prosecutor from its competence to investigate a case (above, section B3(a)). At first sight, the ne bis in idem principle will not be relevant because the trial will be held before a national court (see Article 54 CISA and, section C3(d)). Nevertheless, problems will arise if the European Public Prosecutor will be attributed with the power to discontinue criminal proceedings against an accused once he has fulfilled certain obligations (eg payment of a certain sum of money) and, as a consequence, further prosecution is barred.173 Considering that the competence of the European Public Prosecutor is limited to the investigation of crimes against the financial interests of the Union, there are two options: 1) providing for an exception to the ne bis in idem principle (see also CISA, Article 55(1) lit b and c); 2) making the decision of the European Public Prosecutor subject to the consent of the national public prosecutor and—if consent is not given—transferring the case to the national prosecutor.

Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-01345.

24 Setting up a European Criminal Policy for the Protection of EU Financial Interests: Guidelines for a Coherent Definition of the Material Scope of the European Public Prosecutor’s Office ROSARIA SICURELLA

A. INTRODUCTION

B

Y ESTABLISHING THE competence of the Council of the EU to create a European Public Prosecutor’s Office [I]n order to combat crimes affecting the financial interests of the Union,

Article 86 TFEU envisages a dramatic evolution of the European institutional framework, with the possible emergence of a common authority responsible for all activities falling in the stage preliminary to the trial, that is to say an inquiring authority competent to take all necessary measures and to exercise its functions throughout the EU. The establishment of the EPPO has been indicated as a priority for the development of the EU as a common area of freedom, security and justice in the Action Plan implementing the Stockholm Programme, adopted by the Commission on 20 April 2010,1 notwithstanding that the Stockholm Programme itself, adopted by the European Council in December 2009, makes just a very generic (and isolated) reference to the EPPO.2 Despite the evident weakness of this provision—because it does not itself establish the EPPO, but only empowers the Council to do so, moreover following a special legislative procedure asking for unanimity of Member States (something likely to reveal any absence of real consent to the creation of that authority, together with the will to avoid formalising in the treaty any official position on the subject)—it is to be recognised that it nevertheless establishes the legal basis for such a new organ of the EU, and it logically implies (or it would be better to say that it should logically imply) the ‘conscious’ political choice and commitment of Member States in favour of the perspective of a fundamental evolution of 1 Commission, ‘Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final. 2 ‘The Stockholm Programme—An open and secure Europe serving and protecting the citizens’. Council Document 17024/09, 2 December 2009.

Introduction 871 the common area of freedom, security and justice in the direction of greater integration instead of a simple improvement of cooperation. According to Article 86 TFEU, most of the basic choices on rules concerning the status, the internal structure, as well as functions and prerogatives of the EPPO are to be made by the Council when adopting regulations establishing the EPPO. Incidentally, Article 86 TFEU gives some very important indications on how that authority should be put into place. Concerning the model of inquiring authority which appears to have inspired the drafters of Article 86 TFEU, the expression adopted to generally indicate the scope of competence of the EPPO— [I]nvestigating, prosecuting and bringing to judgement and then exercising [T]he functions of prosecutor in the competent courts of the Member States (Article 86 (2) TFEU)

—conveys the idea of an EPPO as the unique competent authority for investigating as well as for prosecuting, in so far tending to a model where the role of the police is subordinated to decisions of the EPPO while, at the same time, the role of the judge is logically conceived as being functional and related to the main activity of the EPPO (to guarantee the necessary judicial control over measures decided by the EPPO and that can affect individual liberties). Article 86 TFEU appears to refute models where the distinction between ‘investigation’ and ‘prosecution’ reflects a distribution of competences between the prosecutor and the police (in some systems such as that of the United Kingdom), or between the prosecutor and the judge competent to prepare the case (such as the juge d’instruction in the French system). The indication according to which EPPO would be established from Eurojust (and not from OLAF, as was claimed for a long time, above all in documents issued by the Commission),3 in spite of its ambiguity, clearly implies the judicial character of the EPPO, and so its independence from other European institutions (mainly the Commission) as well as its subordination to the judicial control of the ECJ. In this respect, the strengthening of Eurojust’s competences provided for in the Treaty of Lisbon has to be read as the necessary transitional provision in order to prepare the progressive evolution of Eurojust (and more precisely that of some of its functions) into the EPPO;4 something that evidently accentuates the much-discussed hybrid nature of Eurojust, in between that of a simple coordination organ and a real prosecuting authority, competent for prosecuting specific offences all across the European territory.

3 In this perspective, see also the Resolution of the European Parliament A5-0078/2001 of 14 March 2001 (the Bosch Report), where it solicits the Commission (after the adoption of the Treaty of Nice refusing the proposal of the Commission concerning the introduction of a new Art 280 bis TCE establishing an EPP) to present a proposal, based on Art 280 TCE, in order to complete Regulation (EC) 1073/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) [1999] OJ L136/1 and aiming at improving the independence of OLAF, by creating an EPP competent for directing investigations conducted by OLAF exclusively when concerning criminal behaviours affecting European officials committed by European officials, at least until an amendment of the treaty allowing for an extension (point 8). 4 JL Lopes Da Mota, ‘Eurojust: The heart of the future European Public Prosecutor’ (2008) 1–2 Eucrim 62ff; G De Amicis, L Surano, ‘Il rafforzamento dei poteri di Eurojust a seguito della nuova decisione 2009/426/GAI’ (2009) 11 Cassazione penale 4453ff. See also S White, ‘The European Prosecutor: extension of Eurojust or “prolongation” of the Corpus juris proposals?’ in G De Kerchove, A Weyemberg (eds), L’espace pénal européen: enjeux et perspectives (Brussels, Publications de l’ULB, 2002) 47.

872 Definition of the Material Scope of the EPPO Article 85(1) TFEU provides for the competence of the Council, together with the European Parliament to adopt regulations by ordinary legislative procedure establishing the competence of Eurojust regarding ‘the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities’. This goes beyond simply asking competent national authorities to initiate investigations, as provided in Articles 6 and 7 of the Decision 2009/426/GAI,5 amending the Decision 2002/187/GAI establishing Eurojust,6 even though it is certainly less than a direct initiation of prosecution (the latter was envisaged in the 2003 drafting of the Constitutional Treaty, but that was abandoned in the text adopted in Rome in October 2004). It seems not just by chance that such a sensitive competence is provided for in the Treaty ‘particularly’ concerning investigations and prosecutions ‘relating to offences against the financial interests of the Union’. So, what can be inferred from the expression ‘from Eurojust’ is not an indication of a juridical/legal option—it does not necessarily mean ‘in the framework of ’, nor ‘as an evolution of ’ or ‘by progressively transforming’—but a political orientation to conceive of any initiative concerning the establishment of a EPPO as an evolution of a pre-existing institutional actor (Eurojust).7 This interpretation could be supported also by outputs of evaluating procedure provided for in Article 85(1) TFEU (last sentence), showing the importance and improvement of reinforced competence of Eurojust (which could help to bring about the consensus to establish the EPPO).8 Something that can be interpreted in a positive perspective, in the sense that it is probably easier, politically, to consent to the evolution of an existing structure, than to accept the creation of a complete different organ, which moreover would be attributed very sensitive competences deeply affecting Member States’ prerogatives. The solution formalised in Article 86 TFEU appears to follow one of the alternative scenarios drawn by the Commission in its ‘Follow up Report on the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor’ in which, in order to guarantee the necessary cooperation and complementarity through a structural link between the Eurojust and the future EPPO, two different solutions were indicated: the first proposing the participation of the European Public Prosecutor (or the Head of the Central Office of the European Public Prosecutor) within Eurojust in its capacity as member; the second, proposing a complete integration of the EPPO with Eurojust, and so the existence of a unique organ, which would act in a double role (and with different competences and functions) depending on whether the case falls in the scope of the EPPO or not. It is this second solution which seems to have been the guiding idea in drafting Article 86 TFEU, when staying that EPPO will be created ‘from Eurojust’; whereas, on the contrary, in the Green Paper itself the Commission seemed

5

[2009] OJ L138/14ff. [2002] OJ L63/1ff. 7 G De Amicis, ‘Les rapports entre les organismes de l’accusé sur le territoire de l’Union: OLAF, Eurojust et PME’ in Les délits financiers dans la législation européenne: L’OLAF et la réparation du dommage (Brussels, Bruylant, 2007) 95–96. 8 L Salazar, ‘Constitution pour l’Europe, programme de la Haye et Ministère Public européen’ in La protection des intérêts financiers de l’Union et le rôle de l’OLAF vis-à-vis de la responsabilité pénale des personnes morales et des chefs d’entreprises et admissibilité mutuelle des preuves (Brussels, Bruylant, 2005) 167. 6

Introduction 873 to support a different solution aiming at maintaining the two organs clearly separate and with different scopes of competence.9 Nevertheless, the wording of Article 86 TFEU is far from indicating a planned, progressive (complete) transformation of Eurojust into the EPPO. On the contrary, an attentive analysis of provisions of the treaty leads one to the conclusion of a natural coexistence of the two institutions (with all consequent complex situations arising from the coexistence of different regimes for all Member States, deriving from the various ‘opt in and out’ that Member States could express concerning the improvement of Eurojust, or the creation of EPPO in case that it was realised via a procedure of enhanced cooperation);10 so that it is crucial to realise a rational complementarity among the two. In that perspective, a clear definition of the area of competence of each of the European actors in criminal law is of absolutely vital importance. The new organ, to be fully justified, has to be effective and useful. This goal needs a clear vision to be developed concerning its functions, above all with respect to possible ‘concurrent’ authorities (Eurojust and OLAF) and its necessary integration in national systems.11 In order to be effective—and thereby to achieve the common objective of developing an area of freedom, security and justice—the EPPO needs to be attributed with a scope of competence which is both unambiguous and coherent. First of all, it is necessary to define what is meant (and which kind of offences are covered) by the expression ‘crimes affecting the financial interests of the Union’; then, it will be necessary to think about the differing nature of the two organs—Eurojust and EPPO—in order to indicate possible criteria for further improvement of the material scope of competence of the EPPO (Section B). Such an analysis cannot avoid confronting a further sensitive issue, naturally connected to the idea of creating an EPPO, that is to say the need for a preliminary or contextual unification (or at least a thorough harmonisation) of relevant national provisions in the field of competence of the EPPO. The question is whether the goal of an efficient and coherent reaction to some offences (and the consequent activity of judicial authorities all across the EU), pursued by the creation of an EPPO, can be achieved by maintaining in those areas falling in its material scope different national legislations—so that it will need to use, when launching the investigation and when prosecuting, national provisions of the Member State where each activity/measure has to be (under)taken; or, alternatively, whether the sound functioning of the EPPO requires the adoption of a series of European criminal provisions directly applicable to individuals (anyway by national judges, who would be confirmed as the European ‘ordinary’ judges, because it is up to them to apply any relevant and directly applicable European provision, of whatsoever nature), covering the definition of offences falling within the competence of the EPPO, as well as some provisions 9 Commission, ‘Report on the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor’ COM (2003) 128 final, 13; see also Commission, ‘Green Paper on the penal protection of Community’s financial interests and the creation of a European Public Prosecutor’ COM (2001) 715 final. 10 D Flore, Droit pénal européen (Paris, Larcier, 2009) 605. In its actual situation, where it combines coordinating functions with some power of initiative, Eurojust clearly reveals its nature as a ‘still unfinished’ organ; See G De Amicis, ‘Il ruolo dell’OLAF e di Eurojust negli interventi a tutela degli interessi finanziari comunitari: Quale collaborazione?’ in G Grasso, R Sicurella (eds), Per un rilancio del progetto europeo: Esigenze di tutela degli interessi comunitari e nuove strategie di integrazione penale (Milan, Giuffrè, 2008) 593ff. 11 M Alliot-Marie, ‘Allocution d’ouverture’ in Quelles perspectives pour un ministère public européen? Protéger les intérêts financiers et fondamentaux de l’Union (Paris, Dalloz, 2010) 14–15.

874 Definition of the Material Scope of the EPPO concerning the general part which are unanimously considered to be essential for the real delimitation of the field of activity of an inquiring authority (something that would mean creating a supranational/European criminal law) (section C).

B. THE MATERIAL SCOPE OF THE EPPO

1. Preliminary Remarks When approaching the issue of the material scope of competence of EPPO—something which is of essential importance from a juridical as well as a political point of view, and so for the very legitimacy of that organ—it has to be noted that, despite its apparent clarity, many questions arise from the wording of Article 86 TFEU. Article 86(1) TFEU states that an EPPO may be established ‘in order to combat crimes affecting the financial interests of the Union’; so, at a glance, it appears to be conceived of as an authority created with the specific objective of protecting the financial interests of the Union. But, in Article 86(4), the TFEU also establishes that such a competence of the EPPO can be extended—even from the beginning and in any case later on (in any event by the adoption of a decision of the European Council, acting unanimously, to amend Article 86(1) and(2))—‘to include serious crime having a cross-border dimension’. What can be inferred from that provision is mainly that, whether established, the EPPO will be competent (at least) for crimes affecting the financial interests of the Union; but such a situation finally represents only the ‘starting point’, because of the fact that its competences could cover any other serious crime having a cross-border dimension. Such a solution, together with the much-discussed expression ‘from Eurojust’, seems in fact to embrace the idea of an EPPO which is not conceived as being in its very substance a specialised authority whose competences and functions would evolve always within the ‘borders’ of the protection of financial interests, but it is clearly conceived as an authority which is structurally and functionally ‘prepared’ for having a general inquiring competence covering (potentially) any serious crime having a cross-border dimension. This solution reflects the debate during the drafting of the Constitutional Treaty, between those supporting the idea of a European prosecuting authority whose competence would be strictly limited to the very specific area of protection of financial interests (as the most significant expression of the Union; also because it is through these resources that European policies can be pursued) and those who were critical of such a specialised material scope, and who were pushing to maintain the first proposal launched in the working group X (dealing with justice and home affairs issues) to provide for an EPPO which would be competent from the outset also for serious crimes presenting a cross-border dimension.12 This second position was based on two main considerations: first of all, the fact that the most frequent offences against financial interests are not isolated, but connected to other offences (and very often they also are the result of activities of organised crime, which would not fall in principle within the scope of the EPPO, whether conceived as a specialised authority); moreover, it could result in it being politically easier to get the

12 Commission, ‘Report on the Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor’ COM (2003) 128 final, 13.

The Material Scope of the EPPO 875 necessary consensus from Member States on an inquiring authority that would improve the effectiveness of the repression of criminal phenomena, which could then be used as an argument for internal political consensus. The solution finally adopted in the Constitutional Treaty—and subsequently in Article 86 TFEU—realises a clear changing in the wording of the corresponding provision of the 2003 Draft of Constitutional Treaty issued by the European Convention, which referred to combating ‘serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union’ (Article III-175 of the Constitutional Treaty). What is to be stressed, is the clear progressive dynamic indicated in Article 86 TFEU, where the idea is to build up a future EPPO that would be competent in the first phase for a very restricted nucleus of specific offences concerning the interests which are unanimously considered as to have the supranational nature, and then (eventually) progressively extend such a competence to ‘serious crime having cross-border dimension’. It is easy to realise that, according to Article 85 TFEU, ‘seriousness of the crime’ and the ‘cross-border dimension’ (that is to say, the situation where criminal facts affect two or more Member States) are two selective criteria to indicate the competence of Eurojust (together with the eventual need for a ‘prosecution on common basis’; this expression, nevertheless, is indicated in Article 83 TFEU as a possible interpretation, or form, of the trans-border dimension). As affirmed above, this provision confirms the choice to conceive the EPPO as an evolution of Eurojust, but it also implies (at least in the short and medium term, and in any case until the moment that a complete ‘transfiguration’ of Eurojust has not been achieved) the need for a clear indication of criteria which can lead to a suitable selection among ‘serious crime having a cross-border dimension’ in order to indicate crimes which fall within the competence of the EPPO, and those which remain in the competence of Eurojust. In any event, any possible extension of competence trespassing the scope of ‘crimes affecting financial interests of the Union’ requires that the European Council unanimously agrees on it, by adding to the original provision of Article 86(1) TFEU, one or more criminal phenomena which presents the two characters of ‘seriousness’ and ‘trans-border dimension’. This is something that is far from being taken for granted; in spite of the fact that criminal phenomena presenting a cross-border dimension can have a much higher appeal for Member States authorities to agree on the creation of a EPPO whose scope would cover such phenomena. In order to reflect on possible future institutional architecture of European authorities competent for criminal matters, it is crucial first to clarify what can be covered by the expression ‘crimes affecting financial interests of the Union’, which is indicated as the primary area of competence of EPPO.

2. The Origins of the Idea of Creating a European Public Prosecutor for Protecting Financial Interests of the Union The clear indication of offences affecting the financial interests of the EU as the prime raison d’être of the competence of EPPO has not provoked any surprise among experts in the field. Since its beginning, the debate on the creation of a common authority responsible for investigation and prosecution throughout the EU was conceived as a (both attractive

876 Definition of the Material Scope of the EPPO and provocative) component of a more general discussion concerning the creation of an efficient and coherent system to protect European financial interests. Despite the absence in any treaty (from the Rome Treaty in 1957 until the Nice Treaty) of any explicit attribution of competence in criminal matters to the European Community, from the outset the European Commission, joined later by the European Parliament, claimed for the European Community the competence to establish as criminal offences violations of EC law affecting European financial interests (and so implying the application of criminal sanctions). The reasoning behind this was based on the argument that it was logical—and at the same time legally reasonable and arguable—to recognise such a competence to the European Community related (exclusively) to an interest (a ‘legal good’, in the expression of traditional continental doctrine) that is supranational because of its nature; so that such an interest pertains directly to the Community, and national authorities (legislator as well as judges and any other authority responsible to implement EC law) act in those situations as an executive arm of European institutions: since European financial interests are the supranational interest at issue, the competence to take the necessary decisions on their protection has to be recognised as belonging to the Community itself. This reasoning—that can thereby be extended to certain other interests that might be considered as supranational (because of their very nature)—shows also the reason why the protection of European financial interests has become the leading issue, the bridgehead in the long discussion on the need and feasibility of a real European criminal law (that is to say of a new branch of European law, providing for European criminal provisions directly applicable to individuals). After the failure of the proposal for an amendment of the treaty in 1976, aimed at extending domestic criminal provisions for the protection of domestic finances to European financial interests, by establishing the direct assimilation of conduct [H]aving as a goal or as a consequence the illegal diminution of incomes … or the illegal granting of subventions, restitutions or financial contributions

concerning Community funds, as well as of conduct involving the presentation of false documents before the competent Community authorities, to corresponding behaviours affecting domestic finances13—a normative technique that realises de facto an integration (and an extension) of the scope of national provisions on that matter14—the idea of a competence of the Community in criminal law seemed to have been abandoned. Nevertheless, judicial activism of the ECJ produced especially interesting outcomes during the 1980s concerning harmonising competence of the Community, based (in addition to specific provisions) on the general provision of Article 5 TCE (of the Rome Treaty, then Article 10 TCE), and clearly showing that national criminal provisions do not escape, simply because of their ‘criminal’ nature, the impact of increasingly binding constraints of EC law. The lack of competence of the Community in criminal law does not prevent in any case general principles of EC law—such as the principles of loyalty, proportionality, non-discrimination—from affecting national criminal provisions, not only excluding their application in those situations where the result would be against principles of proportion or non-discrimination, or would affect the benefit of EC freedoms, but also when binding the 13

[1976] OJ C222/2ff. R Sicurella, Diritto penale e competenze dell’Unione europea: Linee guida di un sistema integrato di tutela di beni giuridici sovannazionali e dei beni giuridici di interesse comune (Milan, Giuffrè, 2005) 192ff, esp fn 92. 14

The Material Scope of the EPPO 877 national legislator to make specific choices for protecting EC interests, in order to guarantee that this protection is effective and adequate. In its decision in the Greek Maize case (not casually concerning the protection of European financial interests), the ECJ formally established specific standards, derived from the general principle of loyalty, and referred to the concept of ‘adequate protection’, saying that whilst the choice of sanctions remains within Member States’ discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the punishment effective, proportionate and dissuasive.15 This solution has been (partially) formalised in Article 209A of the Maastricht Treaty, and then augmented in Article 280 of the Amsterdam Treaty, which stated, for the first time, that the Council, acting in accordance with the co-decision procedure, [S]hall adopt the necessary measures in the field of the prevention and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States (Article 280 (4) of the Amsterdam Treaty).

More precisely, Article 280 of the Amsterdam Treaty added to the obligation (already established in Article 209A of the Maastricht Treaty) for Member States to adopt ‘the same measures to counter fraud affecting the financial interests of the Community as they take to counter fraud affecting their own financial interests’, the competence (rectius the obligation) for the Council, acting in co-decision with the European Parliament, to adopt European provisions in that regard. So, together with the obligation for the Member States (since Article 280(2) of the Amsterdam Treaty states that Member States shall take the same measure and not simply that they may take such measures) to ‘assimilate’ EU financial interests to their own—that is to say, the obligation to extend to the former the same protection provided for the latter, regardless of the administrative or criminal nature of those measures/sanctions—Article 280(4) of the Amsterdam Treaty establishes the obligation for the EU to adopt ‘the necessary measures’ in that field, so indicating a form of ‘joined protection’ (from the Member States and European institutions) of such fundamental interests. Nevertheless, the following sentence in Article 280(4) of the Amsterdam Treaty, stating that such measures adopted at the European level ‘shall not concern the application of national criminal law or the national administration of justice’, gave rise to very restrictive interpretations excluding any possible constrain by European legislation on national criminal law.16 Such an interpretation would consequently limit the scope of Article 280(4) of the Amsterdam Treaty to measures of an administrative nature (even though with a punitive effect, as clarified by the ECJ in 1992 in RFA v Commission17); implying thereby a clear involution with respect to the acquis which clearly recognised the competence of European legislation to constrain (within certain limits and under certain conditions) national legislators when adopting any measure for the protection of interests involved in

15

Case C-68/88 Commission v Greek Republic, [1989] ECR I-2965ff, para 24. W Van Gerven, ‘Constitutional Conditions for a Public Prosecutor’s Office at the European Level’ in G de Kerchove, A Weyembergh (eds), Vers un espace judiciaire pénal européen (Brussels, Publications de l’ULB, 2000) 313. 17 Case C-240/90 RFA v Commission [1992] ECR I-5383ff. 16

878 Definition of the Material Scope of the EPPO European integration, even when of a criminal nature. The only coherent interpretation of Article 280 of the Amsterdam Treaty appeared to be considering the last sentence of Article 280(4) as only excluding the legitimacy of an EC regulation establishing criminal provisions directly applicable to individuals (and because of that affecting ‘the application of national criminal law’), whereas it formally recognised the legitimacy of a direct harmonisation of national criminal law as long as such an intervention of European legislator needs a legislative act at the national level to implement it in the domestic legal order (as always happens with European directives).18 In the field of protection of financial interests there was also adopted, in 1995, the first act based on Article K3 TUE (that is to say the first act in the framework of the so-called ‘third pillar’, newly introduced by the Maastricht Treaty)—the Convention on the protection of the European Communities’ financial interests (the PIF Convention)19—binding Member States to establish certain behaviours affecting European financial interests as criminal offences at a domestic level (nevertheless, with the limited binding nature of acts adopted in the framework of the third pillar because of the exclusion from the scope of ECJ control in cases of infringement). Finally, it is in the field of protection of financial interests that for the first time the idea of the creation of an EPPO has been proposed.20 In the ‘Corpus juris introducing penal provisions for the purpose of protecting financial interests of the EU’, a text issued at the conclusion of a study involving academics expert in the field and representing all legal traditions in Europe,21 the idea was launched of a European authority (of the European Community)—the European Public Prosecutor—‘responsible for investigation, prosecution, committal to trial and the execution of sentences’22 with respect to a series of offences defined in the same text. More precisely, the text—which was further integrated and slightly modified in order to take into consideration conclusions of a following comparative study aiming at verifying the real need for such a sensitive solution, as well as its feasibility and legitimacy according to European and national legal orders23—provided for a model of a ‘mini-code’, that is to say a series of connected provisions, conceived as a ‘system’, covering some offences and rules of criminal law (substantive penal law), as well as some rules of procedure aimed at establishing a common discipline for the preliminary

18 G Grasso, Report on ‘Legal basis for the implementation’ of the Corpus juris in M Delmas Marty, JAE Vervaele (eds), The implementation of the Corpus juris in the Member States (Antwerp, Intersentia, 2000) 377. See also, Sicurella (n 14) 248–49. Such an interpretation was followed by Commission, ‘Proposal for a directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests’ COM (2001) 272. 19 [1995] OJ C316/48ff. 20 A general overview of the debate on the creation of a European public prosecutor can be read in Flore (n 10) 592ff; V Mitsilegas, EU Criminal Law (Oxford, Hart, 2009); JAE Vervaele, ‘The European Community and Harmonisation of the Criminal Law Enforcement of Community Policy: Ignoti nulla cupido?’ in European Cooperation in Criminal Matters: Issues and Perspectives (Milan, Giuffré, 2008) 31. 21 M Delmas-Marty ‘Corpus juris introducing penal provisions for the purpose of the financial interests of the EU’ (Paris, Economica, 1997), which contains the normative proposals of Corpus juris, together with the final report of the study ‘Explanatory memorandum: the search for a fairer, simpler and more effective system of criminal justice’ (both are published in English and French). 22 See Art 18. 23 M Delmas Marty, JAE Vervaele (eds), The implementation of the Corpus juris in the Member States, I, (Antwerp, Intersentia, 2000) which contains the ‘revised text’ of the Corpus juris—the sc Corpus juris 2000—the synthesis report from M Delmas-Marty, and various scientific contributions of experts members of the working group.

The Material Scope of the EPPO 879 stage of investigation and prosecution (it also contained provisions on judicial control on initiatives of the EPP, and on admissibility of evidence). The idea of an EPPO has quickly become very popular in the European context. It has been supported by the ‘Independent Experts Committee’ nominated by the European Parliament as a response to the very serious accusations of fraud against the European Commission (and which resulted in the resignation from office of the entire Commission, the first case—and the sole so far—of the demission of the entire collegium of Commissioners),24 and above all it has then been developed by the European Commission itself in its additional contribution, in the framework of the Intergovernmental Conference in 2000 (which finally concluded with the adoption of the Treaty of Nice), aiming at proposing the introduction of a new provision in the treaty (Article 280 bis TCE) establishing a European Public Prosecutor and referring to derived EC law for rules governing its functioning as well as the specific offences falling in the scope of its competence.25 This proposal did not achieve its main goal, whereas the alternative idea of creating an organ at European level with the function to improve and facilitate cooperation among competent authorities at national level, supported by the French Presidency and which achieved political consensus at the Tampere Council in October 1999, was the solution finally introduced in the Treaty of Nice, that provided, in Article 29 TUE, for the institution of a European Judicial Cooperation Unit, named Eurojust, essentially aiming at facilitating and accelerating cooperation between national authorities. It can well be imagined that the proposals for the creation of an EPPO represented an impetus at political level to make further significant steps to guarantee an improvement of judicial cooperation in criminal matters, whose deficits were denounced by many in the meanwhile;26 despite the very different nature of Eurojust as an organ of cooperation with respect to the nature of the EPP clearly conceived as a real supranational inquiring authority. Nevertheless, the idea of creating an EPP, far from being abandoned, was relaunched by the Commission, which adopted on 11 December 2001 the Green Paper on the penal protection of the Community’s financial interests and the creation of a European Public Prosecutor,27 aiming at soliciting the consensus of all European institutions and national authorities at all levels on the proposal of introducing the necessary legal basis in the occasion of the institutional reform which was planned to be realised in combination with the process of enlargement of the EU. This document has the merit of having brought to the debate many questions related to the creation of an EPP at any level: it has been distributed to many different categories of persons, invited to present their opinions, which were discussed on the occasion of a public hearing organised by the European Parliament on 16 and 17 September 2002 and whose results have been re-elaborated in a follow-up report.28 Finally, it was this diffused debate and reflections, originated by the drafting and diffusion of the Corpus juris, which prepared conceptually as well as materially the introduction

24 Committee of Independent Experts ‘Second Report on Reform of the Commission: Analysis of current practice and proposals for tackling mismanagement, irregularities and fraud’, 10 September 1999. 25 Commission, ‘Additional Commission contribution to the Intergovernmental Conference on institutional reforms: The criminal protection of the Community’s financial interests: a European Prosecutor’, COM (2000) 608. 26 M Mangenot, ‘Un organe judiciaire pour l’Union européenne: Eurojust (1999-2004)’ (2005) 1 Eipascope 29. 27 COM (2001) 715 final. 28 COM (2003) 128 final.

880 Definition of the Material Scope of the EPPO of a specific provision in the Lisbon Treaty (and before this in the Constitutional Treaty, adopted in Rome in October 2004 but finally abandoned because of the results of referenda in France and in the Netherlands against ratification of the treaty), representing the necessary legal basis for the creation of an EPPO. 3. The Wording of Article 86 (1) TFEU: ‘in Order to Combat Crimes Affecting the Financial Interests of the Union’ The short historique developed above should be considered as representing clear guidance in the interpretation of Article 86(1) TFEU, affirming the competence of the Council to establish an EPPO ‘in order to combat crimes affecting the financial interests of the Union’. First of all, the expression ‘crimes affecting the financial interests of the Union’ cannot be limited only to ‘fraud’, as defined by Article 1 of the PIF Convention, which provides for an autonomous notion of ‘fraud’ that does not rely (as do, conversely, the greater part of national provisions, such as the notion of ‘frode’ in Italian criminal law, or of ‘escroquerie’ in French criminal law) on ‘cunning’ (artifices) and ‘tricks’ having as a consequence the error of the addressee and a financial disposal based on that error, but instead relies exclusively on specific behaviours—presentation of fake documents, omission of information, etc— that have as a consequence, or that are able to provoke as a consequence, a harm to the financial interests of the Union.29 The expression in Article 86 TFEU, interpreted literally, has to be considered as covering (at least) any behaviour affecting the financial interests of the Union, and more precisely affecting the interests of the Union for a correct perception of amounts due to the EU or for the correct allocation of public funds (when employed as subventions or other kinds of contributions); regardless of the fact that such an offence has a cross-border dimension, which is not an essential requirement for competence based on Article 86(1) TFEU, but only for competence based on para (4) of this provision. This was the perspective followed by the Corpus juris, whose proposal for a list of European criminal offences (intended to protect specifically European financial interests) provides for common criminal provisions concerning not only fraud but also, for example, market rigging (in the context of an adjudication process governed by European law) or money laundering and receiving the fruits or the profits of offences against financial interests of the Union (described in the text). 29

Art 1 states that fraud affecting the European Communities’ financial interests shall consist of: ‘(a) in respect of expenditure, any intentional act or omission relating to: – the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities, – non-disclosure of information in violation of a specific obligation, with the same effect, – the misapplication of such funds for purposes other than those for which they were originally granted; (b) in respect of revenue, any intentional act or omission relating to: – the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities, – non-disclosure of information in violation of a specific obligation, with the same effect, – misapplication of a legally obtained benefit, with the same effect.’

The Material Scope of the EPPO 881 The Corpus juris also provides for common provisions concerning some other offences, typically committed by officials, such as corruption, misappropriation of funds, abuse of office, disclosure of secrets pertaining to one’s office, when committed by an official of European institutions or a national official managing European funds. Such a choice in the Corpus juris reflects the position expressed in the Preamble of the First Protocol to the PIF Convention on corruption of officials of the European Community and of Member States,30 which states that European financial interests can also be affected by other conducts than fraud, and above all by criminal behaviours of European or national officials (when the latter are managing European funds).31 So, the need arises, when building up an overall strategy for protecting European financial interests, to punish also behaviours that are most often connected or in some way ‘functional’ to fraud or they (simply) represents a favourable context for conduct of fraud to be realised (by softening controls, unduly intervening in market rigging procedures, by unduly issuing authorisations, by attributing an undue economic advantage etc).32 Nevertheless, both texts—the First Protocol and Corpus juris—provide for a definition of these latter offences (the ones qualified by the public function of the author) that submits relevance at European level (and especially the eventual competence of a future EPP) to the condition that they actually affect, in the specific case, the financial interests of the Union. On that point, it has to be stressed that the last version of Corpus juris (Corpus juris 2000) appears to be even more restrictive than the First Protocol (and also the first version of Corpus juris), since it establishes as an essential element of the common definition of the offence of corruption the fact that such corruptive conduct must ‘harm the financial interests of European Community’. This wording implies that an actual harm has to be caused to its financial interests, and not only that a concrete risk exists, that is to say a potential harm in that respect, as provided for in Article 1 of the First Protocol to the PIF Convention and also in Article 3 of the first version of Corpus juris, which referred to acts of corruption which ‘harm or might harm the financial interests of the European Community’.33 This solution, was very much discussed in the working group, also taking into consideration criticisms expressed by various national experts in national reports, stressing the fact that common definitions proposed by in the Corpus juris concerning offences committed by officials changed in a certain way the original ratio of those offences, by making as a fundamental requirement actual harm to European financial interests as a consequence of those behaviours. It is well known that offences such as corruption, abuse of power, misappropriation of public funds, etc, directly affect fundamental interests others than financial interests, and precisely the proper functioning, transparency and impartiality of public administration which are considered to be as fundamental as financial interests and deserving of an autonomous protection, and so they are punished regardless of the fact

30 [1996] OJ C313/2. Protocol drawn up on the basis of Art K. 3 of the Treaty on EU to the Convention on the protection of the European Communities’ financial interests. 31 Such a connection was first stressed in the text of the Proposal for amending the Treaty presented in 1976; [1976] OJ C 222. 32 H Debord, ‘La lutte contre la corruption conçue comme nouvel instrument de protection’ in O Pirotte (eds), La protection juridique des intérêts financiers de la Communauté européenne (Paris, La Documentation française, 1997) 60ff. 33 M Pelissero, ‘La norma della corruzione nel progetto di Corpus juris 2000: una chiave per l’armonizzazione europea?’ in G Fornasari, N D Luisi (eds), La corruzione: profili storici, attuali, europei e sopranazionali (Padua, Cedam, 2003) 307–11.

882 Definition of the Material Scope of the EPPO that they produce as a consequence a harm to the budget of the state; even if it has to be admitted that in an overall perspective such offences are also considered as an indirect form for protecting more general interests, such as public economy, fair competition, credibility of the state, etc. The solution finally taken by the group of experts in the study of Corpus juris 2000 mainly reflected the concern of the team not to appear to be aiming at extending the original scope of competence of the EPP from the protection of financial interests to other interests of the Union (whenever to be considered as equally fundamental), which could ignite the debate also at the political level. The argument employed to justify the proposed common definition of corruption (and the one of abuse of office) as depending on an actual harm to financial interests of the Union was that such an essential element was to be considered as a ‘competence’ element, in the sense that it does not express the interest affected by these offences, but simply the element on which the competence of the EPP (prevailing on that of the national authorities) relies. This was seen as representing a very relevant limitation of material scope of the EPP, risking undermining the effectiveness of that organ (and therefore its legitimacy with respect to the subsidiarity principle). Moreover, there was stressed the residual incoherence of the definition of fraud provided for in Article 1 of the Corpus juris, which in its 2000 version covers specific behaviours that ‘risk harm to the financial interests of the European Communities’. Future implementation of Article 86 TFEU imposes an attentive reflection on the solution to be taken in that respect. Moreover, when dealing with possible solutions concerning the definition of the material scope of the EPPO, it is necessary to take into consideration alternatives indicated by the Treaty in the event that unanimity is not achieved: the referral of the draft regulation (instituting the EPPO) by a group of at least nine Member State to the European Council with the aim of reaching a consensus within a period of four months during which the procedure before the Council is suspended and, when such a goal is achieved, the referral of the amended text back to the Council for adoption by unanimity of Member State; or, if such a consensus cannot be achieved, the eventual decision of a group of at least nine Member State to establish the EPPO through a procedure of ‘simplified’ enhanced cooperation, in which the necessary authorisation by the European Parliament, the Commission and the Council is considered to be automatically granted upon notification of the decision to them. Objections expressed in the political, institutional and academic debate at the European level about the creation of an EPP led to the conclusion that the most realistic scenario is in fact the second one, that is to say the establishment of an EPPO by a group of Member States via the simplified procedure of enhanced cooperation. It is hard to think about a possible situation in which a decision of the European Council to extend the material scope of the EPPO is adopted even though Member States have not agreed unanimously to introduce the EPPO, and only nine Member States do so. The most probable outcome is that, at least at an early stage, the material scope of the EPPO will rely on Article 86(1) TFEU. (a) The Restrictive Notion According to a restrictive interpretation of the expression in Article 86 (1) TFEU—‘crimes affecting the financial interests of the Union’—the material scope of the EPPO should be limited to those offences that have as a consequence an actual or (at least) a potential

The Material Scope of the EPPO 883 harm for financial interests of the Union (whenever the more generic term ‘affecting’ is considered as indicating a wider scope than only actual harm), in the sense that they create a concrete risk, in the specific case, of harming financial interests of the Union; something that has then to be proved during the trial by the EPPO, and imposing in particular that unequivocal evidence is brought as to the existence of a precise nexus of causality between the conduct and the concrete risk of damages to the financial interests of the Union. Consequently offences such as corruption, misappropriation of funds, abuse of power (and in general any behaviour) of European officials (or national officials, when managing European funds), could be considered as falling within the scope of the EPPO, only when it can be assumed that they had as a result an actual or potential harm for the European budget. So, it could be concluded that the wording of Article 86(1) TFEU allows a definition of the material scope of the EPPO in a way that essentially corresponds to the list of offences defined in the Corpus juris (with the sole difference concerning the widening of the notion of harm in order to cover potential harm). But the question arises as to whether such a solution would be coherent (and desirable), from a practical as well as from a political point of view, with respect to a different choice considering offences committed by European officials as falling into the material scope of EPPO autonomously, that is to say regardless of the fact that they produce as a consequence a harm or a concrete risk of harm to the European budget. It is well known that, also at the European level, the requirement contained in the First Protocol to the PIF Convention for actual or potential harm to European financial interests as an essential element of the common definition of corruption—a choice that can be explained as the way by which, for the first time, a common definition of behaviours others then ‘fraud’ could be introduced, encompassing behaviours often connected to fraud (and even functional to it, in a criminal chain defining a much more complex criminal context)—disappeared in the definition contained in the Convention on the fight against corruption involving officials of the European Communities or of the Member States of the EU, adopted in 1997.34 It is to be stressed that this fundamental change in the common definition of corruption has not inhibited European institutions from continuing to refer to the fight against corruption (and other forms of mismanagement) by European and national officials as an essential component of an efficient fight against fraud, affecting European interests in various ways, not only financial interests but also the very basis of the decision-making process at the European level, invoking fair competition and other fundamental principles of a common market. Such reasoning finally represented an essential bridge for a progressive widening of the general meaning of common interests of the Union. Consequently, it is the joint reference to the fundamental triad of fraud, corruption, together with money laundering that is always considered when dealing with anti-fraud initiatives.35 The choice of defining the material scope of the EPPO as covering also offences committed by European officials (without requiring any harm to be caused to the EU financial budget) appears to be desirable not only from a conceptual or theoretical point of view— because of the fundamental character for the EU of the proper functioning, fairness, 34

[1997] OJ C195/2. L Salazar, ‘Recenti sviluppi internazionali nella lotta alla corruzione (…e conseguenti obblighi di recepimento da parte italiana)’ (1998) 5 Cassazione penale 941. 35

884 Definition of the Material Scope of the EPPO transparency and impartiality of European administration, which is the interest directly threatened in general (and in all Member States) by offences committed by officials against public administration36—but also because of practical questions which would probably arise when dealing with the investigation and prosecution of conducts which affect the European financial interest. Moreover, it appears to be desirable also from a political point of view, with regard to the question of ‘visibility’ and coherence of the EPPO’s scope of competence, which has a clear impact on possible reactions to the establishment of such an organ. It is easy to realise that absolutely similar conducts of the same European official, depending on the concrete situation, can have or not have as a consequence a harm to European financial interests or, even more probable, it could be difficult in some cases to establish a precise causality nexus between his/her personal behaviour and an actual harm (or even a concrete risk of harm) for the European budget. The situation would be absolutely inefficient and incoherent where some of the conducts mentioned above, realised by the same European official—and affecting a fundamental interest of the EU—were to fall outside the material scope of competence of the EPPO only because they did not present (or it was not possible to prove) a direct nexus with an actual or potential harm to the European budget. Such a strict limitation implies that the EPPO would be able to address only a portion of the overall chain of criminal behaviours constituting a unique criminal phenomenon which goes beyond the offences directly affecting European funds; with the consequence of undermining the main goal of the creation itself of the EPPO, that is to say to better and more efficiently counteract offences or behaviours that can (in any way) affect European financial interests. Moreover, such a restrictive solution, inspired exclusively by the concern not to appear to neglect the gradual approach in the putting in place of the EPPO clearly provided for by Article 86(1) and (4) TFEU, would not automatically be the most acceptable one at a political level. It could prove difficult for public opinion to understand the absence of EPPO competence with respect to criminal conduct of European officials, who are very often perceived as a privileged category, whose mismanagement frequently goes unpunished. The solution aiming at defining a larger scope of the EPPO’s competence appears also to be in some way more politically realistic. The agreement of Member States to the creation of a common inquiring authority would imply an enormous organisational task, at both European as well as national levels, and more than that, a dramatic political engagement and significant economic effort. It is reasonable to think that such a sensitive task would not be contemplated by Member States if the new authority was to be competent only for the area of offences directly affecting European financial interests. The success of the enterprise—and even achieving consensus on the creation of such an organ—will inevitably depend also on a coherent and effective solution for defining the material scope of the EPPO, that is to say a solution which facilitates all the advantages to 36 Such interests have to be considered as fundamental interests for the EU. Many initiatives have been realised, above all in the last decade, to improve transparency and impartiality of the functioning of the European bureaucracy, as well as by the drafting of codes of conducts for officials. Moreover, the autonomous relevance of such an interest for the European system is proved by the fact that the very first attempt, in 1976, to amend the treaty in such a way that would establish a certain (indirect) competence in criminal law of (at that time) the European Community, by directly extending national criminal provisions providing for protection of national interests, aimed to do so not only with respect to European financial interests, but also concerning the field of criminal responsibility as well as protection by criminal law of European officials.

The Material Scope of the EPPO 885 be gained from a unique inquiring authority. Progress in this effort against the exclusive category of offences which harm financial interests must take into consideration, as affirmed above, that the most common behaviours directly affecting European financial interests are realised in a wider criminal context, and also in situations of organised crime. At the same time, a coherent distribution of competence between EPPO and other European institutions/organs acting in the area of criminal justice should also be realised. (b) The Extensive Notion A close analysis of Article 86 TFEU, supported by texts and documents that can be considered as an acquis in the field of the protection of European financial interests, allows a wider scope of competence of EPPO to be defined, covering behaviours only potentially and indirectly affecting European financial interests. Article 86 TFEU establishes the ‘constitutional’ framework and foundations of the EPPO. Consequently, it cannot be considered as a piece of positive legislation of criminal law which needs to be restrictively interpreted, but rather as a provision (only) defining the fundamentals of such institution, so presenting a certain level of natural (physiological) vagueness; so terms employed in such a provision are not to be interpreted exclusively in their restrictive criminal law meaning. From that perspective, the wording ‘crimes affecting European financial interests’ can be interpreted as covering not only criminal behaviours producing as a direct consequence (which needs a causal link to be proved) an actual or potential harm to financial interests of the Union, but also offences which are statistically connected or generally considered as to be in some way ‘functional’ to the realisation of behaviours directly affecting financial interests. The verb ‘to affect’, then, should be interpreted as synonymous with ‘to concern’, ‘to have an impact’, and not as indicating that the conduct in question has to have produced as a consequence an actual harm or a concrete risk of damage for the financial interests of the EU. Such an interpretation would allow many other offences to be considered as ‘crimes affecting financial interests of the Union’, and precisely such offences protecting (inter alia) what can be called ‘instrumental/mediate’ interests, that is to say, wider interests whose direct protection allows the wider protection of ‘final’ interests. This interpretation appears to be supported by the Explanatory Memorandum of the First Protocol to the PIF Convention, that clearly states that the expression ‘might harm’, to be found in the common definition of corruption, is intended to cover all corruption cases (even when they do not achieve the result of harming financial interests). In that perspective, corruption, abuse of power, etc, would be punished in order to ‘prevent’ situations which could be favourable for the commission of offences of fraud, market rigging, etc; and because of that it is logical to give to the EPPO the competence to cover such offences and generally all offences corresponding to behaviours which can create a better environment for fraud.37 Following this reasoning, another clear example of such a situation is the protection of the common currency. Together with the European budget, the euro constitutes the 37 See the very extensive interpretation that seems to be given by the working group on the EPPO (Madrid, 29 June-1 July 2009) to the expression ‘crimes affecting financial interests of the Union’, that in principle has to cover ‘any criminal offence that affects financial interests of the Union, since it has a negative impact [it harms] the EU on the financial point of view or because it affects credibility of European institutions’. See Conclusions § 2.2.2.

886 Definition of the Material Scope of the EPPO prototype of common interests (meaning by that, interests which pertain structurally to the EU itself, that is to say as an autonomous entity of a supranational nature), which should logically fall within the material scope of a common inquiring authority once this has been created. Such an outcome can be achieved, according to the wording of Article 86(1) TFEU, by virtue of the fact that interests that we want ultimately to protect are (also) financial interests, but the way in which offences of counterfeiting (as forgery of public documents) are generally formulated—without any reference to actual or potential harm to those interests—implies that an ‘anticipation’ of protection has been realised, through the protection of a different interest that can be considered as an ‘instrument’, as a form of ‘mediate’ protection of financial interests of the Union and concerned individuals, that is to say public faith in legal circulation of the common currency (not only in Europe but throughout the world, since the euro is a reserve currency).38 So, such an offence, which directly concerns a more general interest than patrimonial interests of the EU or of individuals, is (also) a way to anticipate (and in general extend) protection of financial interests, in the sense that penal reaction is provided for also without the need for an actual harm of financial interests, that can be (in the concrete case) only supposed to be potentially harmed. Taking such reasoning to its ultimate conclusion, it can be affirmed that behaviours affecting financial markets can also be considered to be part of EPPO’s material scope; also considering the employment by the treaty of the wider expression of ‘financial interests’ instead of the term ‘budget’. This would allow EPPO’s remit to cover offences such as money-laundering or market abuse. Such an interpretation also appears to be the one that can guarantee an overall coherence of the system, as can be shown by comparing Article 86 TFEU with Article 85 TFEU concerning reinforced competences of Eurojust, together with Article 4 of the Eurojust Decision 2009/426/JHA39 and Article 4 of the Europol Decision 2009/371/JHA.40 Article 4 of Council Decision of 28 February 2002 establishing Eurojust (which has since been amended by Council Decision 2009/426/JHA) indicated a scope of competence of Eurojust based on two different logics, reflected in Article 4(1)(a) and (b) respectively: the reference to Article 2 of the Europol Convention of 26 July 1995 determining offences and in general criminal phenomena falling into the competence of such an institution; and a list of specific offences, including computer crime; fraud, corruption and any criminal offence affecting the European Community’s financial interests; the laundering of the proceeds of crime; environmental crime; and participation in a criminal organisation (according to the definition in Council Joint Action 98/733/JHA). Article 4(1)(c) established moreover the automatic extension of the scope of competence of Eurojust for any offence realised in connection with offences falling in Article 4(1)(a) and (b), and the possibility for Eurojust to exert its functions also with respect to other forms of criminality under a request from a Member State. The reference to fraud, corruption and any criminal offence affecting the European Community’s financial interests as a unique type of criminality whose common character is clearly indicated by the fact that such offences (also corruption in itself) ‘affect the European

38 This seems to be the reasoning behind the opinion expressed by the above-mentioned working group since in the conclusion they stay that ‘also the protection of the Euro has to be included in the competences of EPPO’ (§2.2.2 of the Conclusions, see n 37). 39 [2009] OJ L138/14ff. This text amends Decision no 2002/187/JHA [2002] OJ L63. 40 [2009] OJ L121/37ff.

The Material Scope of the EPPO 887 Community’s financial interests’, confirms that by this expression it was indicated at the European level also offences that only indirectly affect financial interests of the Union, such as—but not exclusively—corruption (and we could add market abuse or money laundering, that in the Europol decision was inserted in the list of offences falling within the scope of Europol). The need for improved cooperation between Eurojust and Europol (and also between Eurojust and OLAF), together with the need to harmonise the statutes of national members and to establish a permanent coordination (so that Eurojust can deal at any moment with urgent cases) motivated the adoption on 16 December 2008 of the new Decision 2009/426/JHA, which significantly modifies Article 4 of the 2002 Decision, by eliminating provision in former Article 4(1)(b), containing the above-mentioned list of specific offences, and so establishing an essential correspondence with the material scope of Europol (which was considered as to be essential in order to improve cooperation between the two organs) and also overcoming the question arising from the original wording of Article 4(1) as to whether forms of criminality separately listed in Article 4(1) (b) were considered to fall outside the scope of competence of Europol, reference to which was limited to Article 4(1)(a). Nevertheless, such a new wording is very far from indicating the automatic exclusion of offences listed in previous Article 4(1)(b). On the contrary, the most convincing interpretation of this new wording leads one to consider such offences as already covered by the more general reference in actual Article 4(1)(a) to the [T]ypes of crime and the offences in respect of which Europol is at all times competent to act.

Such an interpretation of Article 4 of the 2009 Eurojust Decision appears to be confirmed by the wording of Article 4 of the new Decision of the Council establishing the European Police Office (Europol) (which takes the place of the Europol Convention).41 Article 4(1) states that: Europol is competent for organised crime, terrorism and other forms of serious crime as listed in the Annex affecting two or more Member States in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences.

The extensive Annex enumerates various forms of criminality, largely corresponding to the list of 32 criminal phenomena in Article 2 of the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States (the EAW Framework Decision),42 except for sexual exploitation of children and child pornography, rape, arson, unlawful seizure of aircraft/ships, sabotage, crimes within the jurisdiction of the International Criminal Court which are mentioned only in the Framework Decision on the EAW, among which all specific forms of criminality can be found previously indicated in Article 2(1)(a) of the 2002 Decision establishing Eurojust, that is to say computer crime, fraud, corruption, money-laundering, environmental crime. From this very short comparative analysis of provisions establishing material scope of competence, it can be inferred that actual competence of Eurojust (and Europol) logically includes offences which, according to the wording of 2002 Eurojust Decision, could be labelled as ‘fraud, corruption and any criminal offence affecting the European Community’s 41 42

[1995] OJ C316/1. [2002] OJ L190/1.

888 Definition of the Material Scope of the EPPO financial interests’, and which appear now to be put together under the expression in Article 85(1)(a) TFEU ‘offences against the financial interests of the Union’, as the primary scope of future improvement of Eurojust functions, and which should logically correspond to the primary material scope of EPPO. The conclusion which can be drawn is that expressions in Article 85(1)(a) (‘offences against the financial interests of the Union’), and in Article 86(1) TFEU (‘crimes affecting the financial interests of the Union’) are perfectly correspondent, and that both cover together with any kind of fraud (including specific form of frauds, such as those in market rigging procedures), any other offence which directly or indirectly might harm European financial interests as the ultimate interest to be protected, and among others undoubtedly corruption (and other conducts having as an author a European or national official managing European funds), moneylaundering and counterfeiting of the euro. Consequently, all such criminal phenomena have to be considered as falling within the ‘priority’ material scope of the EPPO. This solution appears to be convincing because of the fact that it allows to delimit pretty clearly the initial material scope of EPPO, covering a series of offences which appear to be sufficiently homogenous and at the same time sufficiently large to guarantee the effectiveness of EPPO (covering many offences often connected with those directly harming financial interests of the Union). Conversely, a somewhat different meaning is to be attributed to the expression ‘fraud and any other illegal activity affecting the financial interests of the Union’ that can be found in Article 325(1) TFEU. Here, the use of the more general notion of ‘illegal activity’ (instead of the terms ‘offence’ or ‘crime’ that can be found in Articles 85 and 86 TFEU), has to be explained by the fact that such a provision covers not only criminally relevant behaviours (that can be labelled as ‘offences’ or ‘crimes’) but also (mere) irregularities, that is to say infringements of European legislation which do not present requirements for criminal responsibility. Logically, the same more generic expression can be found in Article 1 of Regulation 1073/1999 defining the material scope of OLAF, which results by consequence to cover also any kind of behaviours of European officials and members of European institutions, or even of other personnel of European institutions (not submitted to the regime of European officials and agents), constituting the basis for cases of (mere) disciplinary liability.43 Such a situation makes OLAF the ‘guardian’ of main interests of the Union.

4. Possible Extension of EPPO Material Scope to ‘Serious Crime Having a Cross-border Dimension’ (Article 86(4) TFEU) When dealing with the issue of a possible extension of the material scope of the EPPO, the question is what suitable criteria can be used to identify from the general category of criminal behaviours those activities to be defined as ‘serious crime having a cross-border dimension’.44 Two logics could be followed: an extension based on the supranational nature of interests to be protected; or an extension whose rationale would be the interest of Member States in counteracting specific criminal phenomena on a common basis. 43

[1999] OJ L136/1ff. D Flore, ‘Eurojus ou Ministère public européen: un choix de politique criminelle’ (2000) 28 Agon 11. 44

The Material Scope of the EPPO 889 According to the first logic, the material scope of the EPPO should essentially remain homogenous, because of the supranational nature of interests which would be attached to the EPPO’s material scope which is common to interests already falling within the provision of Article 86(1) TFEU. Here, the proper functioning of the judicial activity of the ECJ, whose protection has been considered fundamental since the origins of the European jurisdiction, deserves special consideration. Article 27 of the Statute of the ECJ of the European Community (annexed to the ECC Treaty, although the same provision can be found in corresponding Article 28 of the Statute of the Court annexed to the European Coal and Steel Community (ECSC) Treaty and Article 28 of the Statute of the ECJ annexed to the Euratom Treaty) is always quoted, being one of the very few examples of a provision establishing a direct assimilation in criminal law (another being the provision in Article 194 Euratom). Article 27 states that any violation of witnesses’ or experts’ oaths before the ECJ is to be assimilated to correspondent behaviours when realised before national jurisdictions; so creating a direct extension of criminal national provisions covering offences of giving false or reticent witness or expertise to similar conducts when realised before the ECJ. This fact undoubtedly shows the relevance attributed to interests related to the proper functioning of the ECJ, as well as the supranational nature of such interests. Both these considerations suggest that offences affecting these interests should be considered as ‘naturally’ falling into the material scope of the EPPO. Nevertheless, the limited number of such offences, together with the fact that such behaviours in general are not of a great complexity, should have as a consequence that the decision on that specific question would not be of a critical weight. The supranational nature can be recognised also as applying to some interests other than the ‘institutional’ ones already mentioned (see section B2), since they arise in some sectors that nowadays are almost completely regulated by European law. This can be affirmed, for example, with regard to the interest in a properly functioning and transparent European financial market, where European regulations represent almost the exclusive discipline, establishing a very detailed normative framework known as ‘European passport’ for financial activities (and through them to some aspects of public economy),45 whenever those are not considered as falling within Article 86(1) TFEU (because they can be considered as indirectly affecting financial interests of the EU). But above all, such a logic for an extension of the EPPO’s material scope should be affirmed with respect to the need for protecting the environment, whose supranational nature seems to have been implicitly confirmed by ECJ decision of 13 September 2005, and more significantly by Advocate General Ruiz-Jarabo Colomer in his Conclusions presented in that case,46 in which he referred to the environment as a ‘matter of Community competence, and [which] has also come to represent a legal interest the protection of which inspires its other policies, a protective activity which may be clarified, furthermore, as an essential objective of the Community system’.

45

C Pedrazzi and others, Manuale di diritto penale dell’impresa (Bologna, Zanichelli, 2000) 523. Case C-176/03 European Commission of the European Communities v European Council of the EU [2005] ECR I-7879ff. See in particular Opinion of AG Ruiz-Jarabo Colomer, para 52ff, and especially para 59. See B JesúsGimeno, ‘La protection de l’environnement par le droit communautaire’ (2002) Jurisclasseur Environnement 8ff. For a synthetic presentation of evolutions realised in the field, from being considered as a matter of an exclusive interest of Member States to a common policy, see Case C-6/03 Deponiezweckverband Eiterköpfe [2005] ECR I-02753, Opinion of AG Ruiz-Jarabo Colomer, §§ 15–18 ECJ. 46

890 Definition of the Material Scope of the EPPO Such an argument is also supported by Article 37 of the Charter of Fundamental Rights of the EU, which establishes the principle of sustainable development in the implementation of European policies as a fundamental right, so recognising an interest of a supranational nature in a high level of protection of the environment and the continuous improvement of its quality. Moreover, this list could perhaps cover some others interests, arising for example, in the field of corporations, and especially concerning collective guarantees, such as integrity of societal capital or transparency of societal information (which are almost entirely regulated by European legislation); or, in the field of market labour, interests concerning social security and preventive health care of workers. Whereas this logic is set aside in favour of one based on the need for fighting on a common basis against certain criminal phenomena, the panorama for possible extension of material scope of EPPO changes radically. Areas where Member States would mostly be interested in an improvement of effectiveness of investigation and prosecution would presumably concern criminal phenomena such as terrorism, trafficking of human beings, sexual exploitation of children, drug trafficking, and cybercrimes, together with any form of organised crime. Because of the need for better cooperation in the fight against these criminal phenomena, many conventions as well as framework decisions have been adopted in the framework of the third pillar, aiming at achieving (or at least, appearing to achieve) the necessary level of approximation of national legislations in the view to improve cooperation and implementation of mutual recognition instruments. Despite the large number of acts adopted, cooperation in criminal matters at European level remains very inadequate. Establishing an EPPO whose scope of competence would cover such areas would realise the will of Member States to take a dramatic step forward from cooperation to integration on very sensitive areas (which present, moreover, many interconnections with other criminal phenomena which appear to remain in the exclusive competence of Member States). Consenting to create an EPPO—which will imply, as already mentioned, great financial as well as institutional efforts—could in that case be ‘presented’ (‘sold’) to the public and to interested professional categories and institutions, in the form of a very strong commitment at European level to guarantee a more effective response to the criminal phenomena mentioned above, and particularly sensitive for internal security and public order. In fact, counteracting such criminal phenomena effectively is much more relevant and politically profitable than protecting supranational interests which appear to be far from main worries of people, and because of that of politicians and state authorities in general.47 It is clear that the choice in favour of one or the other of these two logics implies different consequences, and above all a different conception of the EPPO, as well as of its possible relation with Eurojust. In particular, the perspective of an extension of the material scope of the EPPO based on the supranational nature of the interests to be protected reflects the very special nature of the EPPO as a supranational inquiring authority, which is competent from the moment when it receives the notitia criminis until the conclusion of

47 This argument should lend support to the extension of the material scope of EPPO to (at least) some forms of serious crime having trans-border dimension; see Flore (n 10) 603; see also Flore (n 44) 11.

The Material Scope of the EPPO 891 the trial before the national judge, and above as the authority representing and defending (not the private interests of the Union, which could be considered as a part of the procedure, as it can happen already today, with the role of partie civile in the French procedure, or of the asistente in the Portuguese criminal procedure, but) the European public interest in the trial where the case will be heard.48 By contrast the nature of Eurojust (even after the augmentation of its functions according to Article 85 TFEU) remains essentially limited to a supporting centralised structure to national authorities, and so always a (very advanced) instrument for cooperation, rather than a common institution in a position of vertical supremacy (or what some authors call ‘collaborating primacy’) with respect to competent national authorities. In this perspective, the reference in Article 85 TFEU to the competence of Eurojust to ‘initiate criminal investigations’ as well as to ‘propose the initiation of prosecutions conducted by competent national authorities’, together with an explicit reference to ‘offences against the financial interests of the Union’ as the field where such a competence is likely to be enacted first (even if not exclusively, that means that such a reinforced competence could in principle be used with regard to all offences falling within the definition of ‘serious crime with cross-border dimension’)—that is to say the specific field of competence for the EPPO—should be read as an improvement in comparison with the present situation, where Eurojust can ask the competent authorities to prosecute, but as excluding the competence to directly prosecute individuals and bring them to judgment (before the competent judge, according to criteria of selection of the ‘natural’ national judge that would be necessary to establish at European level) which should exclusively characterise the future EPPO. Taking the wording of Articles 85 and 86 of the Treaty ‘seriously’, the conclusion is that only the creation of an EPPO would give rise to a really common European area of criminal law, whereas even an improved Eurojust would not be able to do so because of the fact that prosecution and defence of public interests would still rely on national authorities, and only the EPPO would be competent to directly prosecute and bring an individual to judgment. Such a difference of nature and of competence should logically be reflected in the definition of material scope of the EPPO with respect to Eurojust. The greater intensity of competence of the EPPO (a real inquiring authority) should correspond to a narrower material scope than Eurojust, and above all concerning interests of a supranational nature; whereas Eurojust will remain the competent authority for all other phenomena of transborder criminality. Taking into consideration the actual nature of the EU, which cannot be considered as a federal state, but which nevertheless has express needs for the protection of interests which specifically pertain to the supranational entity, this function of representing the European public interest appears to be logically and theoretically possible only with respect to interests that are themselves of a supranational nature. Such a reference to supranational interests as the essential scope of competence of the EPPO, which is not explicitly mentioned in the wording of Article 86 TFEU, appears to have been considered as a central feature in the formulation proposed by the European Convention Presidium to the Plenary Assembly, where the material scope of the EPPO 48 The very essential function of the public prosecutor to defend public interest (of the entire society), and consequently the very essential function of a future EPPO to defend European society interests, is clearly stressed by Alliot-Marie (n 11) 13.

892 Definition of the Material Scope of the EPPO was focused on the ‘interests of the Union’ (juxtaposed with the reference to serious crime having a trans-border dimension). Very interestingly, the same notion of ‘interests of the Union’ could be found also in the provision of Article III-172(2) of the Constitutional Treaty (corresponding to Article 83(2) TFEU), where the second hypothesis for a harmonising competence of the Union was indicated by reference to the notion of ‘common interest which has been the object of a policy of the Union’ (followed by a list of some of such interests, mentioning financial interests, the euro, environment, counterfeiting of products, immigration/freedom of movement). This solution was able to guarantee a clear internal coherence concerning the normative competence of the Union in criminal matters and material scope of EPPO. A coherence that risks being lost in the Treaty of Lisbon (confirming the final version of the Treaty establishing a Constitution for Europe) which has consciously abandoned the characterisation of competence of the Union for the supranational nature of interests to be protected (perhaps because of the concern that such a general notion could legitimate a continuously expanding scope of the EPPO), through the changing of the reference to the ‘interests of the Union’ with the more restrictive notion of ‘financial interests of the Union’, which clearly expresses the will of the drafters of the treaty to exclude from the scope of the EPPO any fundamental interest that could be considered as being of a supranational nature, and because of that to be considered as an interest of the Union. The provision of Article 86(4) TFEU establishing the competence of the European Council to extend the EPPO’s material scope to cover any ‘serious crime having a crossborder dimension’ mixes up this two logics mentioned above. Whether this can be read as a confirmation to the conception of the EPPO as an evolution from Eurojust—and because of that any extension of its competence should be justified on the two requirements of ‘seriousness’ and ‘cross-border dimension’ (in the extended meaning that Article 83 TFEU attributes to this expression)—it should also be coherent to envisage such an extension (at least in a first phase) only for criminal phenomena which can be considered as directly or indirectly affecting supranational interests (such as the environment, European trade mark, etc).

C. THE NEED FOR A UNIFIED EUROPEAN CRIMINAL LAW (IN THE FIELD OF COMPETENCE OF THE EPPO)

1. Preliminary Remarks The resurrection, by the entry into force of the Lisbon Treaty, of the issue of creating a European inquiring authority implies that another issue cannot be logically set aside: the need for a (limited) supranational criminal law, that is to say the need for some common criminal provisions adopted by the European legislator and directly applicable to individuals (even if such provisions are concretely applied by national judges before whom a person is prosecuted by the EPPO), and covering criminal phenomena falling into the material scope of the EPPO. In other words, the question is whether the creation of such a common authority for investigation and prosecution throughout the European territory implies, per se, that some common offences constituting the material scope of EPPO are to be drafted and adopted by the European legislator, and on that basis the EPPO will investigate and prosecute (that is to say will investigate the behaviours that have to be considered as criminal offences according to the definitions adopted at European level).

The Need for a Unified European Criminal Law 893 This question appears to be of the utmost importance, since it has to be acknowledged that recognising such a normative competence to the EU would imply attributing to the European legislator a full competence in criminal law, a very different competence with respect to what has been formalised in Article 83 TFEU circumscribing competences of the European legislator to the adoption of ‘minimal rules’ trough ‘directives’, that is to say normative acts which are not directly applicable to individuals, but which are to be implemented by national legislators, so that the provision which would finally applied to the suspect is a domestic one, adopted according to the ordinary domestic procedure for introducing criminal law provisions (guaranteeing the democratic debate on the fundamental selection of behaviours which deserve and need to be punished because of their seriousness and possible impact on society). Despite its close connection with the creation of EPPO, provisions in the treaty are not really clear on that respect. Differently from proposals in the Corpus juris, where an almost complete series of provisions is established, covering the special part as well as the general part of criminal law, together with common rules aiming at governing not only the phase preliminary to the trial but also the trial itself (albeit in a less detailed manner), Article 86 TFEU only provides for few indications that appear to be far from unambiguous in defining contents of regulations establishing the EPPO, above all as to what concerns the fact that such regulations can contain European criminal provisions. As affirmed by some experts, such a competence cannot be considered to be automatically implied by the creation of an EPPO. In fact, the indication of the Treaty that the EPPO shall exercise the functions of prosecutor in the competent courts of the Member States (Article 86 (2) TFEU)

—something that aims at guaranteeing the necessary integration of the EPPO in the context of national systems (following the solution already envisaged in the Corpus juris)— could be interpreted according to this opinion as implying that the EPPO applies domestic provisions of the Member State where the accused will be brought to judgment; and whose contents would logically be the output of a harmonising process that has affected domestic provisions (in some areas) for a long time.49 Nevertheless, the question of whether the efficient functioning of the EPPO, and consequently also its legitimacy with respect to the principle of proportionality and subsidiarity, can rely on different national legislations (only partially and eventually harmonised), or would finally need the building up of a (limited) European criminal law—that is to say the adoption by the European legislator of a series of common offences and essential rules of the general part, has to be examined very attentively.

2. Legal Basis for Normative Competence of the EU in the Area of Protection of European Financial Interests: Articles 86 and 325 TFEU According to the opinion expressed by some scholars, the wording of Article 86 TFEU legitimates the building up of a real ‘system’ of provisions for the protection of financial

49

Flore (n 44) 12.

894 Definition of the Material Scope of the EPPO interests of the Union (essentially similar to the one defined by the Corpus juris), since it refers to regulations that would not only establish an EPPO, but that would also ‘determine’ offences to be applied by the EPPO, together with the definition of the statute of the EPPO and some fundamental common rules on procedure applicable to its activities, on admissibility of evidence and on judicial review of procedural measures taken by it (§3).50 By considering the expression in Article 86(2) TFEU ‘offences … as determined by the regulation’ to be synonymous with ‘offences … as defined by the regulation’ (emphasis added), according to this opinion, Article 86 TFEU would represent the legal basis for a limited number of European criminal offences directly applicable to individuals (without passing by the implementation procedures of directives by the domestic legislator), covering all behaviours falling into the category of ‘crimes affecting financial interests of the Union’. On the contrary, according to the opinion expressed by the majority of experts and academics in Europe, provisions in Article 86 TFEU only establish such a direct competence concerning criminal procedural law, covering issues explicitly referred to in Article 86(3) TFEU that when indicating the contents of regulations establishing the EPPO, only mentions ‘conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions’. As may be clear, no mention is made about common provisions defining offences falling within the material scope of the EPPO.51 The attribution to the EU of a full competence in substantive criminal law (whenever limited to some offences) would need an unequivocal express provision in the treaty, that cannot be considered to be met by the very generic and ambiguous wording in Article 86 TFEU whose aim is defining the ‘constitutional framework’ of the new organ and its competences, and that only refers in Article 86(2) to ‘offences against the Union financial interests, as determined by the regulation provided for in paragraph 1’ (that is to say, the regulation establishing the EPPO). Preferably, the expression ‘as determined’ should be considered as a synonymous with ‘as indicated’ (and not of ‘as defined’), so that the situation referred to in Article 86(2) TFEU would be essentially similar to that in Article 2 of the European Arrest Warrant Framework Decision, establishing a list of criminal phenomena (not even proper offences) for which a European Arrest Warrant will apply, which are not defined but only listed according to conventional labels (and which need to refer to national criminal provisions defining those behaviours in internal criminal law). Similarly, the regulation mentioned in Article 86 TFEU would contain the list of criminal phenomena considered as affecting financial interests of the Union (according to the definition in Article 86(1) TFEU). A support to that interpretation can be found in the wording of the text of the new Article 280 bis of the Amsterdam Treaty whose introduction was proposed by the Commission in its Additional contribution to the Intergovernmental Conference in Nice, and where an unequivocal reference is made (concerning the content of the regulation establishing rules governing the EPP activity) to ‘rules defining the facts constituting criminal offences

50 L Picotti, ‘La lutte contre la fraude communautaire dans la perspective du Traité établissant une Constitution pour l’Europe’ in La protection des intérêts financiers de l’Union et le rôle de l’OLAF vis-à-vis de la responsabilité pénale des personnes morales et des chefs d’entreprises et admissibilité mutuelle des preuves (Brussels, Bruylant, 2005) 76–79. 51 R Sicurella, ‘Questioni di metodo nella costruzione di una teoria delle competenze dell’Unione europea in materia penale’ in Studi in onore di Mario Romano (Naples, Iovene, 2011) 2605, fn 57.

The Need for a Unified European Criminal Law 895 relating to fraud and other illegal activity prejudicial to the Community’s financial interests and the penalties incurred for each of them’ .52 Moreover, together with this last objection, the interpretation of Article 86(2) TFEU as being the legal basis for European criminal provisions would face another very sensitive question: the special legislative procedure required in Article 86 TFEU for the adoption of the regulation establishing the EPPO derogates from the ordinary normative procedure (corresponding to the co-decision procedure), since it asks for the unanimity of the Council together with the (mere) consent of the European Parliament; so that the very first manifestation of a European criminal law would unequivocally be affected by an evident and problematic democratic deficit. The conclusion to be drawn is that the Treaty of Lisbon does not recognise such a full competence of the EU in substantive criminal law, and the competence of European legislator is limited to the adoption of harmonising instruments of domestic criminal law. This conclusion, nevertheless, does not imply that in exerting its competences for approximating national criminal legislation EU authorities could only rely on Article 83 TFEU, that is to say the ‘general provision’ establishing the legal basis for normative initiatives of the EU in criminal matters. On the contrary, the fight against crimes affecting EU financial interests is in fact a specific sector for which Article 325 TFEU provides the legal basis for any normative act, including initiatives aimed at harmonising Member States’ criminal law, independently of the implementation of Article 86 TFEU and the creation of an EPPO. Article 325 TFEU, which establishes the competence of the Council of the Union, together with the European Parliament (according to the ordinary legislative procedure), to adopt the necessary measures in the fields of the prevention and fight against fraud,

has also been considered as the legal basis for a full competence of the EU in criminal law, and even the clearest and most direct form of EU competence in criminal law, which can be immediately ‘activated’, since it is completely independent from the creation of the EPPO.53 Nevertheless, in our opinion, the need for a specific legal basis implies that such an innovative competence—which has to be considered a full competence of the EU in criminal law—is explicitly and unequivocally attributed and cannot be only implicitly deducted by the use of the generic expression of ‘necessary measures in the fields of the prevention and fight against fraud’; even though such a generic expression would be able, in principle, to cover also the adoption of regulations containing criminal provisions (which would be directly applicable as any provision of a regulation). The conclusion that can be drawn is that reference to the general concept of ‘necessary measures’ can logically cover any kind of normative act (directives or regulations) when they deal with measures of a different nature than criminal; whereas, when dealing with measures of criminal law, such a generic expression cannot legitimate the adoption

52 The text can be read in Commission, ‘Green Paper on the penal protection of Community’s financial interests and the creation of a European Public Prosecutor’ COM (2001) 715 final. 53 L Picotti, ‘Il Corpus juris 2000: Profili di diritto penale sostanziale e prospettive d’attuazione alla luce del Progetto di Costituzione per l’Europa’ in L Picotti (ed) Il Corpus juris 2000: Nuova formulazione e prospettive di attuazione (Padua, Cedam, 2004) 81.

896 Definition of the Material Scope of the EPPO of provisions establishing criminal offences directly applicable to individuals, but only directives containing obligations to punish (via criminal sanctions) which nevertheless need to be implemented by the domestic legislator. Stating that Article 325 TFEU represents the specific legal basis for any normative act having as its goal the protection of its financial interests leads to the very relevant conclusion that, when concerning the fight against fraud, EU competence of harmonising national criminal law legislation, whenever it does not achieve the nature of a full competence in criminal law, results in presenting significantly different characters legitimating the establishment of much more detailed and intense obligations and constraints for the Member States than the ones deriving from directives adopted on the basis of the general provisions in Article 83 TFEU. In particular, it has to be acknowledged that conditions of legitimacy of EU intervention according to Article 325 TFEU are less severe and allow a wider room for intervention. First of all, differently from what it is provided for in Article 83, Article 325 TFEU does not simply empower European legislator to adopt (when ‘necessary’) [M]easures in the fields of the prevention and fight against fraud affecting the financial interests of the Union,

but it establishes an obligation for the European legislator to do so. Moreover, despite its natural ambiguity, the choice to maintain the wording of former Article 280 TCE, employing the expression ‘necessary measures’, instead of the notion of ‘minimum rules’ as provided for in Article 83 TFEU cannot be underestimated (or even considered as to be irrelevant or without influence). Correctly, it is to be stressed that the use in Article 83 TFEU of the expression ‘minimum rules’ cannot be considered to be decisive in structurally limiting EU harmonising competence in criminal law, as can be inferred by looking at provisions in framework decisions adopted on the basis of Article 31(e) TEU, where such an expression was first used. Such provisions are often very detailed and articulated (so that it is imaginable that a similar degree of precision would be found in directives adopted on the basis of Article 83 TFEU). Nor is the normative instrument of the directive able, in itself, to establish structural limits to the intervention of the EU in criminal law, considering moreover that the specific content of directives in criminal law as established in Article 83 TFUE—that is to say ‘minimum rules concerning the definition of criminal offences and sanctions’—seems to go much further in conditioning national legislators than simply requiring the result to be achieved. When fixing definitions of offences and sanctions, European provisions limit to some extent the national legislator also concerning concrete ways and forms to get the specific goal of effectively protecting European interests. Nevertheless, the different wording of Article 325 TFEU cannot be justified except by recognising a much more intrusive harmonising competence of the EU in the specific area of protection of financial interests of the EU, development of which is provided for from the moment of the entry into force of the Treaty of Lisbon (because of the fact that this provision, as said above, is independent from any normative proposal or initiative concerning the establishment of the EPPO). The very significant harmonising power of measures adopted at EU level on the basis of Article 325 TFEU can be easily inferred from the reference to the objective of equivalence of the protection in all Member States which appears to be the specific character of initiatives at EU level; whereas, on the contrary, requirements for deterrence and effectiveness are

The Need for a Unified European Criminal Law 897 common to measures adopted by Member States (as in Article 280(1) of the Amsterdam Treaty). Such a specific requirement for initiatives taken at EU level is of a great importance, since it concerns all measures covering ‘prevention and fight against fraud’ (emphasis added), so that it appears logically to legitimate initiatives of harmonisation of any national legislation in that field, regardless of their civil, administrative as well as criminal nature (because of the term ‘fight’ which clearly refers to measures of a repressive nature): that is to say that Article 325 TFEU represents the legal basis for EU acts directly harmonising domestic criminal law in the field of protection of financial interests of the Union. Qualifying Article 325 TFEU as the provision especially dealing with protection of EU financial interests implies that it is the regime established in this provision to be applied, prevailing on the general rule for EU harmonisation competence in criminal law, that is to say Article 83 TFEU.54 This interpretation does not trespass legitimate borders of EU competence in criminal law—that according to some scholars should be exclusively found in Article 83 TFEU—since we consider that Article 325 TFEU is not merely referring, in a generic way, to the fight against illegal activities affecting EU financial interests (as could be said concerning for example the reference in Article 79 TFEU to trafficking of human beings; that in fact is then explicitly mentioned in the list in Article 83(1) TFEU concerning criminal phenomena that can be the object of a EU directive establishing ‘minimum rules concerning the definition of criminal offences and sanctions’), but it constitutes the legal basis for any EU initiative (of whatever nature) concerning ‘prevention and fight against fraud’ in the specific framework of Part 6 of the TFEU devoted to ‘financial provisions’, and especially of chapter 6 dealing with ‘fight against fraud’. Article 325 TFEU has to be considered, then, as an autonomous legal basis, so that initiatives founded on such a provision are not subject to conditions established in Article 83 TFEU: neither the ‘particular seriousness’ and ‘cross-border dimension of crime’, nor the ‘essential character’ of measures to be taken to ensure the effective implementation of a EU policy (in Article 83(2)) have to be preliminarily proven. But above all, competence of the EU established in this provision appears to avoid the significant obstacle of the ‘emergency brake’ procedure, whose application by Member States can significantly affect the concrete success of EU harmonising competence provided for in Article 83 TFEU.55 This consideration is nevertheless far from excluding the need to verify, also with respect to the competence established in Article 325 TFEU, that general conditions for a legitimate intervention of the EU are met, that is to say respect for the principle of subsidiarity, and in case of measures in criminal law, also conditions of extrema ratio. In this regard the text of the Conclusions issued by the JHA Council on 30 November 2009 on ‘Model provisions guiding the Council Criminal Law deliberations’, which clearly shows the consciousness of EU institutions about the need to better identify criteria to be followed when adopting directives in criminal law and that should guarantee that obligations established by the European legislator respect all fundamental principle of a liberal state, is of great interest. Despite its apparently restrictive scope—proposing model provisions which should be

54 A different position is expressed by M Böse, ‘La sentenza della Corte costituzionale tedesca sul Trattato di Lisbona e il suo significato per la europeizzazione del diritto penale’ (2009) Criminalia 293–96. 55 The ‘emergency brake’ procedure represents a compromise between the power to put the veto— that is now excluded in itself for issues in Art 83 TFEU—and the ordinary legislative procedure based on the rule of qualified majority; S Peers, ‘EU Criminal Law and the Treaty of Lisbon’ (2008) 4 European Law Review 526–27.

898 Definition of the Material Scope of the EPPO used by the Council when deciding on wording of criminal provisions—this text indicates in fact very important guidelines supposed to orientate the Council when selecting behaviours which have to be punished (that will then be discussed, and eventually approved or amended or even rejected in the European Parliament), and which turn to be a first embryo of a real legal ‘method’ to be followed in order to limit EU intervention in the two areas of Article 83(1) and (2) TFEU. After recalling the fundamental principle of protection of fundamental interests as the ratio of any provision establishing an offence, the text clearly affirms the crucial relevance of the principle of extrema ratio, and it states precisely that criminal sanctions have to be provided for only when they are proven to be ‘essential’ according to the principles of subsidiarity and proportionality, and in any case they have to be considered as ‘the last resort’, after a preliminary costs/benefits analysis. The conclusion that can be drawn is that, according to Article 325 TFEU, it is legitimate—and it has to be expected—that very detailed criminal provisions will be adopted in this field; so that it is possible to imagine that one or more directives will be adopted—or even the same regulations establishing the EPPO, but in this case such provisions would not be immediately applicable (if they could be considered as not respecting the proper characteristics of regulations)—containing such detailed provisions defining criminal offences related together with very strict approximation rules on sanctions. Nevertheless, in any case, such provisions would not directly establishing criminal responsibility of individuals and would not be directly applicable to them.

3. The EPPO and the Building up of a First Nucleus of European Criminal Law Despite the absence in the Treaty of Lisbon of an unequivocal legal basis for the adoption of a corpus of common provisions establishing European criminal offences, the efficient functioning of the EPPO, when it would be established, will nevertheless convince European and national authorities on the need for adopting such provisions, and because of that pushing for an amendment of the treaty in order to explicitly empower the EU to introduce criminal provisions: it is the very essence, the rationale of such a new organ itself to logically impose that the establishment of an EPPO is to be joined with the adoption of a corpus of common criminal law provisions to be applied all over the European territory and directly applicable to individuals. The idea behind the Corpus juris proposals is that the establishment of such a new organ would be joined by a complete ‘system’ (in the fundamental meaning of Kelsenian philosophy) of European criminal law provisions—dealing with special and general parts of criminal law, together with provisions regulating procedure involving the EPPO and relationships with other actors of the procedure—conceived and organised to be a unique, complex normative text where all components are interdependent and interact reciprocally. So, what the Corpus juris proposal consists in is in fact a mini-code, a corpus of provisions characterised by their ‘systemic’ nature, representing a model for the creation of a ‘microsystem’ of criminal law, limited to the area of protection of financial interests of the Union. Such a system is conceived to be generally autonomous with respect to domestic systems of criminal law, which it is considered to integrate only for the area of competence of the EPPO (and that would consequently be ‘affected’ by the corpus of European criminal

The Need for a Unified European Criminal Law 899 provisions only when dealing with national criminal provisions concerning the same supranational interests falling into the EPPO material scope56). Such an overall and complex perspective appears to have been progressively abandoned in the subsequent texts and in today’s debate after the entry into force of the Treaty of Lisbon, where the idea of a new institution—the EPPO—seems to be the sole element to have been kept, with a consequent ‘strategic’ elimination of any other component of the model proposed by the Corpus juris, not only the partial unification of substantive criminal law, but also the significant proposals for an important number of common provisions dealing with many aspects of the procedure, and above all relations with other subjects involved and judicial control of measures taken by the EPPO.57 Since the Green Paper proposals, despite the fact that they were largely inspired by the Corpus juris, it can be noted that the creation of an EPPO and the strategy of a limited unification of criminal law by the adoption of a corpus of European provisions of substantive criminal law started to be considered as two different issues that could be dealt with separately, since (even limited) unification of criminal law was considered as to be only a possible option and not a necessary implication when dealing with the question of creating a common inquiring authority. Such an approach risks leading to an ‘instrumentalisation’ of substantive criminal law, where the main criterion that should inspire initiatives in substantive criminal law would inevitably be the practical needs of the EPPO in exerting its investigating functions: in such a situation, common provisions on substantive criminal law turn to be an instrument for the EPPO instead to be the essential (and ‘fundamental’ in its very original meaning) conditions for its creation and activity.58 Proposals in the Green Paper were essentially focused on operational efficiency, and therefore aimed at a centralisation of investigations that only in a very limited measure was accompanied by a harmonisation of substantive criminal law (by essentially referring to definitions in conventions, protocols and other normative instruments previously adopted, such as the PIF Convention and related protocols). No need for common rules of general part was mentioned, so that the solution aimed for was to completely refer to relevant national solutions. This perspective gives also the reason why in the actual debate the discussion about the need for common rules of general part has been completely marginalised: common definitions on such notions are not considered to be necessary, while the issue of a common definition of (some) offences has always remained central (above all, for the need to respect legality principle, which would require the precise definition of offences falling within the material scope of the EPPO). More precisely, in its proposals in the Green Paper, the Commission clearly indicated a solution in which the creation of a centralised inquiring authority, together with some common rules regulating the functions of the EPPO and essential aspects of the procedure involving the EPPO, were to be combined with a harmonisation of substantive criminal 56 See M Donini, ‘Sussidiarietà penale e sussidiarietà comunitaria’ (2003) 1 Rivista italiana di diritto e procedura penale 168. 57 A Lassalle, ‘Ministère public européen et organes de procédure européens: les enjeux de l’articulation horizontale’ in G Giudicelli-Delage, S Manacorda (eds), L’intégration pénale indirecte (Paris, Société de législation comparée, 2005) 212–13. 58 J Tricot, ‘Ministère public européen et systèmes pénaux nationaux: les enjeux de l’articulation verticale’ in G Giudicelli-Delage and S Manacorda (eds) L’intégration pénale indirecte (Paris, Société de législation comparée 2005) 204.

900 Definition of the Material Scope of the EPPO law. This harmonisation would be achieved through the adoption of common definitions, at least for a very limited group of criminal phenomena, that is to say fraud, corruption, and money-laundering (followed eventually by other offences that could harm financial interests, such as market rigging or misconduct on the part of European or national public officials). The Commission’s approach would be essentially limited to relevant provisions of criminal law, whereas solutions adopted by the national system, where the trial was supposed to take place (or the investigative measure was to be assumed, according to the point in the procedure) would exclusively be applied concerning fundamental issues of the general part (as to the regime of inchoate offence, participation, omission, mens rea, circumstances, etc). As stressed by many scholars and academics, such a solution would tend to nullify all efforts displayed in establishing rules to achieve a certain degree of centralisation of investigations, because of the very different outputs that could result from decisions of competent national judges in every single Member State, depending on different rules regulating the general part and which would finally give rise to a very different delimitation of the material scope of the EPPO. This perspective was criticised by the European Parliament, whose Resolution on the Green Paper claimed the need for a common and precise definition of offences falling into the material scope of the EPP, together with common definitions of sanctions, according to fundamental principles guiding criminal law (legality) and also the principle of equal treatment of individuals throughout the Union.59 It seems nevertheless to have inspired the drafters of the treaty, since Article 86 TFEU does not establish (at least not clearly) such a full competence in criminal law which should logically be implied by the creation of an EPPO. This solution confirms to some extent the tendency to ‘proceduralise’ interventions at European level in criminal matters. This tendency has evolved from the necessary implementation of the fundamental principle of mutual recognition, progressing to measures aimed at directly and immediately facilitating cooperation, instead of aiming at approximating very important pieces of substantive criminal law (which are anyway necessary for an easier implementation of mutual recognition). At first glance the solution appears to be very attractive, because of its greater flexibility in relation to national criminal law, since it does not imply an automatic exclusion of national provisions, but on the contrary is a domestic provision always available to be applied. Nevertheless, such a solution does not take into consideration all the factors which are necessary for the proper and efficient functioning of the EPPO, and because of that its legitimacy according to the principle of subsidiarity—since the very first reason to create such a new organ remains the insufficiency and weakness of a differentiated response of various Member States to criminal phenomena affecting European financial interests. The goal of an efficient and equivalent protection of the European budget in all Member States cannot be achieved without a minimum set of common rules covering substantive criminal law. A legitimate use of the competence established in Article 86 TFEU would require that it is shown that such a sensitive intervention is proportionate and necessary to achieve 59 European Parliament Resolution of 11 March 2004 on the Commission Green Paper on criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor, [2004] OJ C62E/191.

The Need for a Unified European Criminal Law 901 common fundamental objectives, such as effective and equivalent protection of financial interests of the Union: this means that the efficient functioning of the EPPO, through the most complete and advanced realisation of all conditions which such efficient functioning relies on, is the very condition for the legitimacy of the EPPO. Finally, it does not consider that creating an EPPO whose powers and functions would be based on the principle of so-called ‘European territoriality’ (as defined in the Corpus juris 2000),60 allowing that it exerts any of its functions all over the territory of the Union, should logically imply, in order to guarantee efficiency and equivalence, a substantive dimension of such a principle, expressed by the contextual adoption of a corpus of common offences. The idea that the EPPO could rely on relevant national provisions (presumably following specific criteria which would need to be established to guide the EPPO in choosing the ‘competent’ national system whose provisions have to be applied) would imply that in investigating and prosecuting criminal phenomena falling within its competence, the EPPO will be limited by the scope of such national provisions. The added value of the EPPO would consist exclusively of facilitation and support—because of its European dimension and its centralised nature—to inquiring powers and scope of national authorities, and so as an enhanced (and strongly verticalised) form of cooperation, exclusively aiming at improving and facilitating effective repression and punishment, instead of a homogenous reaction to certain criminal phenomena all over Europe. The very novelty of creating a common inquiring authority would be fully realised only if common offences were created directly applicable to individuals throughout the territory of the Union (by competent national judges, who will be obliged to apply European provisions). Such a conclusion should moreover concern not only provisions defining offences and sanctions—that is to say the special part of criminal law—but also regulating very fundamental issues contained in the general part of criminal law. The interesting debate solicited by the European Commission’s presentation in 2001 of the Green Paper on the criminal law protection of the financial interests of the Community and the establishment of a European Prosecutor, shows very clearly how problematic would be the solution where only offences would be harmonised with respect to legality principle as well as to equality among European citizens, and moreover the risk this implies of undermining the effectiveness of protection of supranational interests which needs real harmonisation of repression, not a trompe l’oeil harmonisation which would result in a ‘fraud of labels’.61 Solutions adopted to regulate participation and conspiracy, attempt, mistake, mens rea, have an evident impact on application of common offences in concrete cases, and in defining borders of individual responsibility; because the scope of single offences depends on rules and solutions of the general part. It can be affirmed that offences constituting the special part of criminal law are somewhat incomplete, because while they establish specific elements of any illegal behaviour (criminally punished), this does not cover all the requisites and conditions for establishing and indicating the exact borders of individual criminal responsibility. The latter depends 60 See Appendix II: Guiding Principles of Corpus juris 2000, in The implementation of the Corpus Juris in the Member States (n 23), vol 1, 188ff. 61 For this expression, see D Flore, ‘Droit pénal matériel et Union européenne’ in G de Kerchove, A Weyembergh (eds), Quelles réformes pour l’espace pénal européen (Brussels, Publication de l’ULB, 2003) 72–73.

902 Definition of the Material Scope of the EPPO on rules governing the criminal relevance of a contribution from a single individual, whether, for example, a certain conduct contributing to the realisation of an offence that can be considered one among the ‘crimes affecting financial interests of the Union’ would fall or not within the material scope of the EPPO. The same can be affirmed of criteria for establishing that a specific human behaviour has to be considered as an inchoate offence (and so activating EPPO competences whether or not it constitutes a relevant attempt of an offence falling within the material scope of the EPPO). So, a concrete criminal offence, when considered as ‘complete’, would be the result of a combination of specific elements defined in the special part and rules of the general part,62 and consequently what has to be considered as to be criminally relevant (according to European provisions) will depend also on the exact definition of notions of the general part. The goal of the EU to effectively harmonise criminal law legislation in a certain field, with the aim of realising an area of freedom, security and justice, cannot be achieved but by introducing (also) some common rules on the general part of criminal law: what has been said above has as its logical consequence that any cross-reference to national systems in order to regulate issues of the general part would inevitably imply that the concrete scope of the EU choices of criminal repression would finally depend on national choices for general rules regulating criminal responsibility of individuals. Moreover, because of their inevitable impact on the scope of any more specialised provision, a clear definition of such notions of the general part of criminal law is necessary in order to comply with both principles of legality and of equal treatment of European citizens, and by doing so, it is also essential to build up the trust of citizen in the functioning and in the role of the EPPO.63 This very short reasoning also implies that a genuine interpretation of already existing provisions in the treaty enabling the EU to adopt harmonising measures in criminal law— Article 83 TFEU, and especially for the fight against fraud, Article 325 TFEU—cannot consider the competence to adopt provisions aiming at harmonising some rules of the general part of criminal law (where this intervention fulfils conditions of subsidiarity and necessity) as falling outside; regardless of the fact that these provisions do not explicitly establish such a competence of the EU. The much-discussed issue that arises at this point concerns the legitimacy or general acceptability of possible different solutions, different rules of general part, respectively applicable to European offences and ‘national’ offences, because of the creation of a ‘special’ (in the sense of specialised) general part. The existence of different rules governing the general part of criminal law, depending on whether the offence is a European or a strictly national offence, can evidently raise some problems in the view of the principle of equal treatment. But such problems should generally be considered to be overcome, since in such a situation the reason to introduce new specific rules does not depend on the need to ‘specify’ general rules according to precise and specific sectors. When dealing with the question of a general part of European criminal offences, the reason is the need for a real harmonisation of some offences, requiring that common criteria are established to indicate when conditions are met in order to say that 62 This is the reason why some scholars refer to fundamental rules of the general part (the regime of inchoate offence, of participation, circumstances, defences etc) as to indicate the various ‘forms of actual realisation of the offence’ (forme di manifestazione del reato); D Pulitanò, Introduzione alla parte speciale del diritto penale (Turin, Giappichelli, 2010) 85. 63 Tricot (n 59) 206.

The Need for a Unified European Criminal Law 903 there has been perpetration, that the behaviour considered realised an inchoate offence, a relevant attempt, or it did not achieve the minimum level necessary to be relevant in criminal law and punishable, that a certain behaviour not directly realising the conduct constituting the offence has nevertheless to be considered as participation in the offence, etc.

4. Concluding Remarks The solution envisaged above concerning the EPPO’s material scope seems to offer a suitable perspective also for establishing a possible relation between EPPO and Eurojust, promising a coherent coexistence of the two organs (at least in the short and medium term, until an eventual complete transformation of Eurojust in the EPPO). Despite the fact that the precise structural relation between the EPPO and Eurojust— that is to say, whether the EPPO should be conceived as a specialised unit of Eurojust, or as an organ totally coinciding with Eurojust, nevertheless acting under different regimes following areas of offences concerned (or other possible solutions)—appears not to be solved through provisions in Article 86 TFEU (at least for the short and medium term), a possible coherent and efficient institutional architecture could rely on a distribution of competences where the material scope of the EPPO would anyway be characterised by the supranational nature of interests to be protected. More precisely, the EPPO should be conceived as the inquiring authority for offences affecting supranational interests, that is to say fundamental interests whose value trespasses the dimension of a single state, and whose effective protection needs (because of that nature) a homogenous reaction. Conversely, Eurojust will remain an organ aiming to essentially improve cooperation among national authorities—trying to fill all gaps and overcome obstacles deriving from territorial limits of repressive competence of each Member State. The distinction of the two organs would then be reflected by ontological difference of interests falling into the material scope of competence of each of them. It follows that the need for improving cooperation concerning sensitive fields for governments (terrorism, trafficking of human beings, etc) would be answered through improved competences and operational powers of Eurojust. The proposed interpretation of Article 86(1) TFEU—and the proposed interpretation of the expression ‘crimes affecting financial interests of the Union’—appears to be perfectly coherent with EU normative acquis on that subject, as well as with provisions in the Treaty of Lisbon. Consequently, an eventual first wave of future extensions of the material scope of the EPPO (according to Article 86(4) TFEU) should concern supranational interests such as the environment and European trade mark. Its competence could then be extended to serious forms of illegal immigration—which, together with the European policy on freedom of circulation, can also affect interests related to the European labour market and labour welfare. During all this first phase Eurojust will remain the competent authority to deal with criminal phenomena such as terrorism, trafficking of human beings, arms and drugs, cybercrime, and in general for all other criminal phenomena, including organised crime. Organised crime as such—and more precisely the offence of participating in a criminal organisation as now described in framework decision 2008/841/JHA,64 which amended the 64

[2008] OJ L300/42ff.

904 Definition of the Material Scope of the EPPO joint action adopted in 199865—should fall outside the competence of the EPPO (at least in a first stage); something that will in some way differ from the solution proposed in the Corpus juris. Such an offence—punishing (mere) participation in a criminal organisation, regardless of whether any specific offence planned by the group has been realised by it or some of its members—is generally considered as affecting the quite ambiguous interest of ‘public order’, that is to say peace and security of society. So far, it cannot be affirmed that a real European public order exists as a consolidated interest, pertaining directly to the Union (so that term can actually only be used as indicating a diffused situation of danger for the public order of more than one Member State). This should have as a consequence that according to the logic that has been followed here, the EPPO would not be competent to combat organised crime in general. This criminal phenomenon would indirectly fall into its scope of competence only when offences affecting supranational interests—principally financial interests of the Union, but also any other supranational interests whose protection, because of their very nature, was previously established as falling into the material scope of the EPPO—are committed in the framework of a criminal organisation. But in this case, the offence falling within its scope would not be the (mere) participation to the criminal organisation but the specific offence affecting a precise supranational interest which has been realised in the framework of a criminal organisation (at least in the form of an inchoate offence). Taking into consideration that, as several reports of the Commission have shown in recent years, crimes affecting financial interests of the EU (in the general meaning followed here) are often realised in a broader context involving organised crime (which should typically fall into the scope of competence of Eurojust), it will be of crucial importance to establish precise criteria for regulating possible overlapping when cases involving EU funds also involve other forms of criminality which fall outside the EPPO competence. That is to say that it is necessary to establish common provisions to deal with concurrent offences; and this, evidently, not only with respect to the relation with Eurojust, but also with respect to the competence of national authorities. In this latter case, where the general rule should be the primacy of the EPPO competence, common provisions could establish situations (for example when common offences do not present a transborder nature, but involve only one Member State) where the EPPO can decide to leave the prosecution and judgment to the sole national authority.

65

[1998] OJ L351/1ff.

25 The Interaction Between the ECJ and the ECtHR with Respect to the Protection of Procedural Safeguards after Lisbon: the Accession of the EU to the ECHR SILVIA ALLEGREZZA

A. INTRODUCTION

T

HE ENTRY INTO force of the Lisbon Treaty represents a milestone in the protection of fundamental rights in Europe. On one hand, it strengthens the ‘internal’ protection, recognising in Article 6(1) TEU a legally binding value to the European Charter of Fundamental Rights (CFR). On the other hand, the Treaty increases the role of the European Convention of Human Rights in the legal order of the EU by a double step: Article 6(2) explicitly states that the European Union ‘shall accede’ to the European Convention on Human Rights (ECHR), and the subsequent paragraph (3) recognises the rights guaranteed by the ECHR as ‘general principles of the Union’s law’. The ‘Lisbon revolution’ in this field is a coherent development of the status quo ante. It represents the anticipated result of an increasingly multilevel, cross-referenced system of protection of human rights in the EU.1 Several elements are indeed increasing the interaction of the two courts: the Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) will be more often involved in the same cases. That is due to many factors. First, the status and value of primary EU law conferred to the CFR ‘is likely to change the nature of the EU’s relationship with the ECHR’.2 Furthermore, the ECHR has a new binding force which operates directly

1 On the history of the EU law on human rights and its impact of the Constitution of Europe, see A Cassese and A Clapham and JHH Weiler (eds), Human Rights and the European Community: Methods of Protection (BadenBaden, Nomos, 1991); JHH Weiler, The Constitution of Europe (Cambridge, Cambridge University Press, 1999) 101; S Douglas-Scott, ‘A tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis’ (2006) 43 Common Market Law Review 629; S Smismans, ‘The European Union’s Fundamental Rights Myth’ (2010) Journal of Common Market Studies 1, 45; and the essays in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999). 2 S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 4 Human Rights Law Review.

906 The Accession of the EU to the ECHR and indirectly: directly from Article 6(3) of the TEU, and indirectly from the ‘equivalence clause’ provided by Article 52 (3) of the CFR.3 Article 52(3) CFR provides that: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

Although the contents of the CFR are mostly ‘borrowed’ from the ECHR, between the two documents there is no hierarchy; on the contrary, the CFR is a way for the Convention to enter the very heart of EU law and to confer on the ECHR a sort of primacy in European law. Finally, the accession marks the end of the age of indifference between the courts, in which there were two distinct European courts with different jurisdictions and dealing with different matters.4 As a result of the accession, the acts of the EU will be subject to the external review exercised by the ECtHR in the light of the rights guaranteed under the Convention, just like the acts of any countries parties to the ECHR. This paper will specifically analyse the process of accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The issue has been discussed for more than 30 years and it has raised a hot debate. The paper will sketch the development of the relationship between the ECHR and the EU (and the ECtHR and the ECJ) up to the recent times. The conclusions drawn in this paper can only be partial: negotiations are still ongoing, and many fundamental documents are not yet declassified. Therefore the main aim of the paper is to illustrate what is the state of the art on procedural safeguards, what are the pros and cons, the risks and benefits of the accession and, finally, what are the future scenarios for criminal law with respect to the accession.

B. STATE OF THE ART

1. Unilateralism, Incorporation, Accession Until the adoption in 2000 of the Charter of Fundamental Rights signed in Nice, the European Treaties did not contain any list of fundamental rights. Nevertheless, the protection of fundamental rights in the EU started well before the adoption of the CFR, and it developed through the case law of the ECJ. Even in the absence within the EU of an internal catalogue of fundamental rights,5 the Court of Luxembourg treated fundamental rights as a crucial issue in the construction of the EU.6 We will focus on the development of such an issue, offering a brief survey of ECJ case law on fundamental rights and the references to the ECHR.

3 On the Charter of Fundamental Rights and its value, see G Di Federico (ed), The EU Charter of Fundamental Rights (London, Springer, 2011). 4 See Douglas-Scott (n 1) 629. 5 To some extent, exceptions could be considered, inter alia, the prohibition of discrimination on grounds of nationality (Art 12 EC Treaty) and the principle of equal pay between men and women (Art 141 EC Treaty). 6 See Douglas-Scott (n 1) 630.

State of the Art 907 At its origin, the necessity for the EU to develop an ‘internal’ protection of fundamental rights is to be found in the so-called ‘counter-limits’ doctrine, which was developed by the German Bundesverfassungsgericht7 and the Italian Corte Costituzionale.8 The two national courts affirmed that the primacy of EU law should find its limits in the protection of basic fundamental rights granted by the national constitutions. After these decisions, a pressing need for the EU to protect fundamental rights clearly emerged. The absence of protection for fundamental rights was seen as an obstacle for the construction of the EU and as a risk for the primacy of EU law.9 In the lack of adequate standard of protection from the EU, national constitutional courts had invoked the right to assess the compatibility of EU law with the fundamental rights guaranteed from the national constitutional charters.10 In order to address the problem raised by the constitutional courts and to endow the EU with an effective protection of fundamental rights, three ways were theoretically available to the Union: unilateralism, incorporation or accession.11 Unilateralism means the introduction in the EU law of its own catalogue of rights; incorporation indicates the inclusion of the ECHR in the body of EU law; accession the entry of the EU as a party to the Council of Europe and the acceptance of the ECHR as a binding law. The adoption of the CFR in 2000 testifies both unilateralism and incorporation. On the one hand, it is a consequence of the EU choice to develop a unilateral system of protection, by adopting an autonomous Charter of Rights. On the other hand, Article 52 of the Charter represents a form of incorporation of the ECHR into the EU basic texts. The incorporation philosophy is the result of the long route of the jurisprudence of the ECJ.12 The ECJ started in the 1970s to refer to the ECHR rights as general principles of Community law. Crosscitations do not automatically mean incorporation, but the ECJ slowly developed the idea that the ECHR safeguards were embodied in EU law. The ECJ’s tendency to incorporate the ECHR rights into EU law was later picked up by the EU legislator/states. Article 6(3) of the TEU, as modified by the Lisbon Treaty, makes official the intention to incorporate the ECHR into the EU legal framework. Lastly, Article 6(2) provides for the ‘mandatory’ accession of the EU to the ECHR. Although the agreement for accession is still to be approved, one might say that the EU tried each of the three ways, unilateralism, incorporation and accession. Nevertheless, the

7 Decisions Solange I, 29 maggio 1974 (BVerfGE 37, 271), Solange II, 22 October 1986 (BVerfGE 73, 339) and Maastricht, 12 October 1993 (BVerfGE, 89, 155). 8 Case Frontini, Italian Corte Costituzionale, 27 December 1973, n 183 and case Granital, Italian Corte Costituzionale, 8 June 1984, n 170. 9 C Sotis, ‘Convenzione europea dei diritti dell’uomo e diritto comunitario’ in V Manes and V Zagrebelsky (eds), La convenzione europea dei diritti dell’uomo nell’ordinamento penale italiano (Milan, Giuffrè, 2011) 113. 10 See decisions cited in nn 7 and 8 and the Decision Lissabouer, 30 June 2009 (BVer GE 123, 267); cf A Knook, ‘The Court, the Charter and the Vertical Division of Powers in the European Union’ (2005) Common Market Law Review 368. 11 JJ Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 Common Market Law Review 995, 998 f; similarly S Manacorda, ‘Carta dei diritti fondamentali dell’Unione europea e CEDU: una nuova topografia delle garanzie penalistiche in Europa?’ in V Manes and V Zagrebelsky (eds), La convenzione europea dei diritti dell’uomo nell’ordinamento penale italiano (Milan, Giuffrè, 2011) 153 ff. 12 Jacqué (n 11) 998 ff. It took a long time for the ECJ to affirm the full incorporation; it was not until the Pupino case that the ECJ stated that ‘the Union must respect fundamental rights, as guaranteed by the ECHR ... and as they result from the constitutional traditions common to the Member States, as general principles of law’; Case C-105/03 Pupino [2005] ECR I-05285, para 58.

908 The Accession of the EU to the ECHR lack of coordination between the different strategies produced a rhapsody rather than a harmony.

2. Historical Background of the Protection of Human Rights in the EU According to ECJ Case Law The first ECJ developments of a doctrine of fundamental rights within Europe date back to the 1970s.13 In the Stauder decision, the ECJ defined the criteria governing the interpretation of Community law and stated that ‘interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental rights enshrined in the general principles of Community law and protected by the Court’.14 In order to avoid possible clashes with Member State supreme courts, with the decision in the case Internationale Handelsgesellschaft15 the ECJ started shaping an autonomous, internal human rights law on fundamental rights. The risk at stake was that the ‘recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law’. In other words, it is necessary to state the full autonomy of EU law concerning fundamental rights.16 In that decision the Court considered that the ‘respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, while inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’.17 The long road of the ECJ in the construction of an EU human rights law had started and it was only at the beginning. It is important to notice that in the case Internationale Handelsgesellschaft, no reference to the ECHR or to other international treaties concerning fundamental rights was made. Several reasons justified that omission.18 In particular, not all the Member State were parties to the ECHR or to other international treaties. It was only later, with the decisions in the Nold19 and Hauer20 cases, that the ECJ made explicit reference to the international treaties for the protection of human rights, affirming that international texts could supply ‘guidelines which should be followed within the framework of the Community law’.21 In its decision in Rutili22 the ECJ made explicit and direct reference to the ECHR. In

13 Some previous cases in which the question of the protection of fundamental rights was raised are described in JN Cuhna Rodrigues, ‘The Incorporation in the Community Legal Order’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law (Oxford, Hart Publishing, 2010) 89. 14 Case 29/69 Stauder [1970] ECR 419 para 7. 15 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. 16 Sotis (n 9) 118. 17 Case 11/70 Internationale Handelsgesellschaft cited n 15, paras 2–3. 18 J van der Velde, ‘The Protection of Fundamental Rights within the European Union—A Historical Approach’, in J Wouters, L Verhey and P Kiiver (eds), European Constitutionalism beyond Lisbon (Antwerp, Intersentia, 2009) 63. 19 Case 4/73 Nold v Commission [1974] ECR 491. 20 Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, para 15. 21 Case 4/73 Nold v Commission [1974] ECR 491, para 13. 22 Case 36/75 Rutili v Ministre de l’Interieur [1975] 1219, para 32.

State of the Art 909 Hauer, the ECJ referred to Article 1 of Protocol 1 of the ECHR interpreting the language of the article, but without seeking guidance from the ECtHR case law.23 However, the ECJ did not directly apply the ECHR and its case law. The ECJ instead used the ECHR ‘as a point of orientation to inspire and assist the Community protection of human rights; relying on it as a set of guidelines’.24 It has been underlined that the use of such a term—guidelines—left the Court with a ‘broad discretion’.25 The unwillingness to follow the Strasbourg case law appears even clearer in the words of the Advocate General in the Orkem case. It concerned the right of an undertaking not to give evidence against oneself, and the Advocate General in his conclusion argued as follows: ‘Finally, and most importantly, I must not fail to remind the Court that, according to its case-law, the existence in Community law of fundamental rights drawn from the European Convention on Human Rights does not derive from the wholly straightforward application of that instrument as interpreted by the Strasbourg authorities.’26 Furthermore, in the decision the ECJ stated that, ‘as far as Article 6 of the European Convention is concerned, although it may be relied upon by an undertaking subject to an investigation relating to competition law, it must be observed that neither the wording of that article nor the decisions of the European Court of Human Rights indicate that it upholds the right not to give evidence against oneself.’27 Despite the increasing references to the ECHR, since 1995 no violation of human rights was ever ascertained by the Luxembourg Court, although in Baustahlgewebe the Court affirmed the violation of the right to a fair trial due to the unreasonably protraction of a competition case, using as a corner stone the Strasbourg case law.28 The latter case law shows the growing importance of the ECHR: in the Ocalan case,29 the Court recognised that the ECHR has a ‘special significance’ between the international instruments protecting human rights.30 In the Pupino case, even before the entry into force of the Lisbon Treaty, the full compliance with the ECHR is openly established by the ECJ: ‘in accordance with Art 6(2) TEU, the Union must respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms

23 JM Sera, ‘The Case for Accession by the European Union to the European Convention for the Protection of Human Rights’ (1996) 14 Boston University International Law Journal 151, 165 for further development of the contrast between the two courts concerning property rights. 24 ADJ Balfour, ‘Eliminating Conflicting Interpretations of the European Convention on Human Rights by the European Court of Justice and the European Court of Human Rights’ (2007) 2 Intercultural Human Rights Law Review 183, 190. 25 Van der Velde (n 18) 63. 26 Opinion Advocate General in Case 374/87 Orkem v Commission of the European Communities [1989] ECR 3283 paras 139–40: ‘The most authoritative commentators on the decisions of this Court also emphasise that the Court’s position regarding the European Convention on Human Rights consists in most cases “in using it merely as a reference” even though it “goes as far as possible in that direction” and that, by so doing, it develops “directly or indirectly its own case-law interpreting the Convention ... This Court may therefore adopt, with respect to provisions of the Convention, an interpretation which does not coincide exactly with that given by the Strasbourg authorities, in particular the European Court of Human Rights. It is not bound, in so far as it does not have systematically to take into account, as regards fundamental rights under Community law, the interpretation of the Convention given by the Strasbourg authorities.’ 27 Case 374/87 Orkem v Commission of the European Communities [1989] ECR 3283. 28 Case C-185/95 P Baustahlgewebe GmbH v Commission of the European Communities, [1998] ECR I-08417, para 29 where the Strasbourg case law represents an argument used ‘by analogy’. 29 Case C-229/05 P, Osman Ocalan v The Council of the European Union, the United Kingdom and the Commission of the European Communities [2007] ECR I-00439. 30 See Douglas-Scott (n 1) 645.

910 The Accession of the EU to the ECHR signed in Rome on 4 November 1950 … and as they result from the constitutional traditions common to the Member States, as general principles of law’.31 As a result, EU law, including the so-called third pillar instruments, ‘must thus be interpreted in such a way that fundamental rights, including in particular the right to a fair trial as set out in Art 6 of the Convention and interpreted by the European Court of Human Rights, are respected’. Nowadays, references to both the ECHR and the case law of the ECtHR are routine for the ECJ. Many decisions explicitly refer to the ECtHR case law: in the famous Kadi case, concerning the obligation of the EU to execute resolutions of the UN Security Council affecting fundamental rights of people listed in the terrorists’ ‘blacklist’, the Court of First Instance and the Court of Justice referred to the ECtHR case law both to reject the complaints of the applicant on the breach of his right to access to Court32 and later on to overrule the previous decision.33 In the last decision on the Kadi case, adopted in 2010, the Court makes clear that it applies criteria ‘identical to those used by the European Court of Human Rights to the facts of the present case’.34 This leading case shows how the reference to the ECtHR nowadays represents a critical tool in order to ascertain the respect of fundamental rights. At the same time, the Kadi case marks the appearance of a kind of ‘counter-limit doctrine’ on a European dimension,35 in that the EU compliance with UN deliberations finds a limit in the respect of fundamental freedoms. It has been underlined that making reference to the ECHR and to the ECtHR case law is a way for the ECJ to stress the autonomy and the ‘internal’ character of the protection of fundamental rights within the EU: it is a form of emancipation from national constitutional charters.36 Due to the historical absence of an internal catalogue of fundamental rights, the ECJ ‘imported’ rights from both national and international legal systems. Borrowing rights from the national systems, the Court builds up a dynamic of ‘inversely commutative hierarchies’: ‘national human rights law has been applied through EC law in a circular looping route’.37 In order to avoid the overlapping of jurisdictions and possible clashes with national supreme courts, the ECJ chose to refer primarily to the international treaties and specifically to the ECHR. Acting this way, the ECJ emancipated itself from national judicial authorities in interpreting the consistency between EU law and fundamental rights. As a second step, since an external review by the ECtHR was not given, the EU signed a double declaration of independence: it exercised an autonomous power of appreciation and assessment of the ECHR and its case law.

31

Case C-105/03 Pupino [2005] I-05285. Case T-315/01 Yassin Abdullah Kadi v Council of the EU and Commission of the EC. On the Kadi case, see S Gless and D Schaffner, ‘Judicial Review of Freezing Orders due to a UN listing by European Courts’, in S Braum and A Weyembergh (eds), Quel contrôle juridictionnel pour l’éspace pénal européen? (Brussels, Ed De l’Université Libre de Bruxelles, 2009); C Eckes, EU Counter-Terrorist Policies and Fundamental Rights (Oxford, Oxford University Press, 2009). On its impact on the EU legal order, see G De Burca, ‘The EU, the European Court of Justice and the International Legal Order after Kadi (2009) 51 Harvard International Law Journal 1. 33 Case C-402/05 P and C-415/05 P, Kadi and Al Barakaat, para 310 ff. 34 Case T-85/09, Yassin Abdullah Kadi v European Commission, not yet reported, para 177. 35 Sotis (n 9) 126. 36 Sotis (n 9) 119; the article underlines that the reference to the ECHR represented ‘la fabbrica di legittimazione della Corte di giustizia’. 37 See Douglas-Scott (n 1) 634 citing M Delmas-Marty, Towards a Truly Common Law (Cambridge, CUP, 2002). 32

State of the Art 911 This conclusion is confirmed by Advocate General Poiares Maduro in the Kadi case: It is certainly correct to say that, in ensuring the observance of fundamental rights within the Community, the Court of Justice draws inspiration from the case-law of the European Court of Human Rights. None the less, there remain important differences between the two courts. The task of the European Court of Human Rights is to ensure the observance of the commitments entered into by the Contracting States under the Convention. Although the purpose of the Convention is the maintenance and further realisation of human rights and fundamental freedoms of the individual, it is designed to operate primarily as an interstate agreement which creates obligations between the Contracting Parties at the international level. … The EC Treaty, by contrast, has founded an autonomous legal order, within which States as well as individuals have immediate rights and obligations. The duty of the Court of Justice is to act as the constitutional court of the municipal legal order that is the Community. The European Court of Human Rights and the Court of Justice are therefore unique as regards their jurisdiction ratione personae and as regards the relationship of their legal system with public international law.38

3. National Responsibility for European Breaches: the ECtHR Case Law The question of the boundaries of the ECtHR scrutiny in cases involving the law of the European Union was soon raised.39 In its early case law, the former European Commission of Human Rights held that ‘when a Member State, having submitted itself to contractual obligations, concludes a later international agreement that does not allow for further observation of its obligations under the earlier Treaty, the State still is responsible under that preceding Treaty’.40 This position was abandoned in the subsequent decisions and the Commission rejected as inadmissible ratione personae the complaints directed against the Community as such, and concerning primary law, on the ground that the EC was not a party to the ECHR. The Human Rights Commission considered for instance that Member States could not be held responsible for decisions of the Council of Ministers to the extent that, in participating in the adoption of such decisions, they had not exercised their ‘jurisdiction’ in the sense of Article 1 of the ECHR.41 In a later decision of 9 February 1990, M & Co v Federal Republic of Germany,42 the European Commission for Human Rights maintained that the Convention does not prohibit a Member State from transferring powers to international organisations, but that transfer ‘does not necessarily exclude a State responsibility under the ECHR’. Member States answerability towards the ECtHR remains the same. The European Commission for Human Rights had put it in very clear terms: ‘Under Article 1 of the Convention the Member States are responsible for all acts and omissions of their domestic organs allegedly 38 Case C-402/05 P, opinion of the Advocate General Poiares Maduro in case Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities, delivered on 16 January 2008, § 37. 39 On the ECtHR case law concerning Member States and EU responsibilities for human rights breaches, see A Bultrini, ‘La responsabilité des Etats membres de l’Union européenne pour les violations de la Convention européenne des droits de l’homme imputables au système communaitaire’ (2002) RTDH 5, 15; K Kuhnert, ‘Bosphorus—Double standards in European human rights protection?’ (2006) 2 Utrecht Law Review 177. 40 X v Germany (1958) ECHR (Ser. A), p. 256. 41 CFDT c European Community (1978) 13 DR 236. 42 M & Co v the Federal Republic of Germany App no 13258/87, Commission decision 9 February 1990, Decisions and Reports (DR) 64, 138); principle endorsed in Heinz v the Contracting Parties also parties to the European Patent Convention App no 21090/92, Commission decision 10 January 1994, DR 76-A, 125.

912 The Accession of the EU to the ECHR violating the Convention regardless of whether the act or omission in question is a consequence of domestic law or regulations or of the necessity to comply with international obligations’.43 The principles elaborated by the Commission were adopted by the ECtHR in two different cases.44 In the Matthews case,45 the Court affirmed that Member States are responsible if EC primary law violates the Convention. The main reasoning is that although the Member States are not excluded from transferring competences on an international organisation, they remain responsible for infringements of the ECHR after such a transfer. But the recognition of an embryonic external control of the Commission was soon abandoned by the Strasbourg Court. On many occasions the ECtHR has been called upon to decide on violations of the Convention determined or involving EU law. In cases involving EU legislation, the ECtHR could choose between two divergent approaches: (i) Conflict-provoking Approach, also called the ‘Substitution Approach’ As regards responsibilities and powers and in order to avoid lacunas in the international legal protection of the rights and liberties laid down in the ECHR, the ECtHR could have ignored the setting-up of the EU, with its supranational features, and attributed the act or omission challenged before it to all Member States, or one or more Member States in particular (the so-called ‘substitution approach’). The party who brings the complaint might invite the ECtHR to do so by bringing the claim, in addition to or instead of the EU, to any or all Member States. As a result, Member States will be held responsible for actions taken by the EU: Article 46(1) of the ECHR will oblige national authorities to implement the decision of the ECtHR while community law prohibit to adopt any measure required by the decision of the ECtHR. On the other hand, the EU law will be under scrutiny before the Strasbourg court without any chance for the EU to become a party in the procedure. This was the approach followed in Cantoni v France.46 In that case, the ECtHR affirmed that the fact that the domestic legislation is based almost ‘word for word’ on a Community Directive does not remove it from the ambit of Article 7 of the Convention. (ii) The Bosphorus Doctrine To avoid the clash, the ECtHR chose a different approach and adopted the so-called ‘Bosphorus doctrine’. In the Bosphorus case,47 considered till now the leading case concerning the external control on the respect of human rights in the EU, the ECtHR was faced with the question of whether a EU Member State, in this case Ireland, could be held responsible under the Convention for the mere execution of an EC Regulation. The ECtHR had to reconcile two basic principles: on the one hand, parties to the Convention are not

43

M & Co v the Federal Republic of Germany cited n 41, 144. Waite and Kennedy v Germany App no 26083/94 (ECtHR, 18 February 1999) para 67 and Matthews v United Kingdom App no 24833/94 (ECtHR, 18 February 1999) para 32: ‘Member States’ responsibility therefore continues even after such a transfer’. 45 Matthews v United Kingdom cited n 44. 46 Cantoni v France App no 17862/91 (ECtHR, 15 November 1996) para 30. 47 Bosphorus v Ireland App no 45036/98 (ECtHR, 30 June 2005); the Bosphorus doctrine has been confirmed by the decision Coopérative des agriculteurs de Mayenne v France App no 16931/04 (ECtHR10 October 2006). 44

State of the Art 913 prevented from transferring powers to an international organisation. On the other hand, a party cannot fully escape its responsibilities under the Convention by such a transfer. According to the ECtHR, a Member State remains responsible under Article 1 ECHR for all acts and omissions of its organs under their domestic law or under their international legal obligations. State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a state would be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it exercised state discretion. The Court found that the protection of fundamental rights afforded by Community law was equivalent to that provided by the Convention system. ‘Equivalent, according to the ECtHR, means comparable and not identical’.48 If such equivalent protection is found to exist, there will be a presumption that a state has not departed from the requirements of the Convention when it does no more than implement the obligations flowing from its membership in the organisation. The presumption, however, ‘is rebutted when the protection offered was ‘manifestly deficient’, which would have to be examined on a case-by-case basis.49 One aspect has to be considered: the presumption at stake protects EU law from the scrutiny of the ECtHR only whether the EU law can be challenged before the ECJ. If the issue is the compliance of primary law with the ECHR—it was the case in Matthews—the presumption does not operate. In reaching that conclusion it attached great importance to the role and powers of the ECJ in the matter, considering in practice that the effectiveness of the substantive guarantees of fundamental rights depended on the mechanisms of control set in place to ensure their observance. The Court also took care to limit the scope of the Bosphorus judgment to Community law in the strict sense—at the time the ‘first pillar’ of EU law. The Bosphorus decision further clarifies that the presumption only applies where the Member State had no discretion in implementing Community law. Where the Member State had some degree of discretion, its responsibility will be the same as if a purely domestic act had been at issue. One of the questions left open by the ECtHR is whether the presumption also applies in cases where there has been no national act executing Community law. Such a case could for instance arise where an applicant directly challenges a decision rendered by the Commission and confirmed by the ECJ before the ECtHR. Bosphorus is based on the presumption that the protection of human rights in Community law is equivalent to that under the Convention. Therefore, the ECtHR presumes that in cases where the Community’s Member States had no discretion when implementing secondary Community legislation that the Member States complied with the requirements of the Convention. Therefore, Bosphorus privileges secondary Community law as such. Thus the presumption formulated by the ECtHR in Bosphorus must also be applicable in cases where there was no implementing action by Member States.

48 T Lock, ‘The ECJ and the ECtHR: The Future Relationship between the Two European Courts’ (2009) 8 The Law and Practice of International Courts and Tribunals 375, 378. 49 Lock (n 48) 375, 378. On the Bosphorus doctrine see, inter alia, S Peers, ‘Bosphorus European Court of Human Rights’ (2006) 2 European Constitutional Law Review 443; Kuhnert (n 39) 177; T Lock, ‘Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights’ (2010) 10 Human Rights Law Review 529.

914 The Accession of the EU to the ECHR The Bosphorus doctrine developed later into the Behrami doctrine, concerning how responsible contracting parties might be held for acts and omissions carried out by the troops that formed part of the security presence in Kosovo (KFOR) established by a resolution of the UN Security Council.50 However, in this case the ECtHR held that those acts and omissions were out of the jurisdictions of the contracting parties and declared the case inadmissible ratione personae. In a later decision, the ECtHR applied the Bosphorus equivalence doctrine to the procedures adopted by the EU organs and specifically to the ECJ procedure. In Biret51 the Court confirmed both the Bosphorus and the Behrami doctrines, considering that the complaints on the breach of procedural rights enshrined in Articles 6 and 13 were exclusively related to the judicial system of the EU, and no Member State could be held responsible for those rules. A real gap in the protection of human rights within the EU legal system emerges in the Connolly52 case. The complaint focused on the breach of Article 6 of the ECHR, which related to the right to submit a written observation on the conclusions of the General Advocate during proceedings in the Court of First Instance. In that case the applicant chose to proceed the Strasbourg Court against all the EU Member States as jointly liable for breaches of the Convention. In its decision, the ECtHR stated that no Member State could be held responsible for the violation, because the latter did not occur in their jurisdiction under Article 1 of the ECHR and they had no role in the procedure. Procedural rules of the preliminary ruling procedure in the ECJ were at stake also in Cooperatieve van de Nederlandse Kokkelvisserij.53 Here, the ECtHR stated that there is a presumption that a Contracting Party has not departed from the requirements of the Convention where it has taken action in compliance with legal obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides. As a corollary, this presumption applies not only to actions taken by a Contracting Party but also to the procedures followed within such an international organisation itself and, in particular, to the procedures of the ECJ. In that respect, the Court also reiterates that such protection need not be identical to that provided by Article 6 of the Convention; the presumption can be rebutted only if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient.

This time the ECtHR went into a detailed analysis of the rules governing the preliminary ruling procedure and maintained that ‘the Court cannot find that the applicant

50 Behrami and Behrami v France and Saramati v France, Germany and Norway App no 71412/01 and 78166/01 (ECtHR 2 May 2007); see De Burca, ‘The EU, the European Court of Justice’ (n 32) 11 ff. This approach has been confirmed in Beric and others v Bosnia and Herzegovina App no 6357/04, 36360/04, 38346/04 (EtCHR 16 October 2007). 51 Biret v Germany, Austria, Belgium, Danemark, Spain, Finland, Greece, Ireland, Luxembourg, Netherlands, Portugal, United Kingdom and Sweden App no 13792/04 (ECtHR 9 December 2008). 52 Connolly v 15 Member States of the European Union App no 73274/01, Admissibility (9 December 2008). 53 Cooperatieve Producentenorganisatie Van De Nederlandse Kokkelvisserij v Netherland App no 13645/05 (ECtHR 20 January 2009).

State of the Art 915 association has shown that the protection afforded to it was “manifestly deficient” in that it did not have an opportunity to respond to the opinion of the Advocate General. It has therefore failed to rebut the presumption that the procedure before the ECJ provided equivalent protection of its rights’. In September 2011 the ECtHR was again called upon to rule on the EU judicial system. This time the right for national courts to refuse to ask for a preliminary ruling by the ECJ was at stake. The Court did not dismiss the case and went into the analysis of the concrete criteria adopted by the national judge in order to justify its refusal; it finally excluded any violation of the Convention.54 Finally, in another recent case the ECtHR seems to have partly overruled the Bosphorus doctrine and chooses to analyse in detail the alleged violation related to a very sensitive topic: the duty of Member States in dealing with refugees in the light of the Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum-seekers in the Member States. The Court stated that ‘there has been a violation by Belgium of Art 3 of the Convention because, by sending [the applicant] back to Greece, the Belgian authorities exposed the applicant to risks linked to the deficiencies in the asylum procedure in that State’.55 The Court concludes that, under the EU Regulation, the Belgian authorities could have refrained from transferring the applicant if they had considered that the receiving country, namely Greece, was not fulfilling its obligations under the Convention. Consequently, the Court considers that the impugned measure taken by the Belgian authorities did not strictly fall within Belgium’s international legal obligations. Accordingly, the presumption of equivalent protection does not apply in this case.

4. Problems Connected to the Two-tier Structure of Human Rights Protection in the EU Area The actual protection of human rights shows some gaps. On one side, the ECtHR deferential approach towards the EU, although partly revisited in the last decisions analysed above, leave lacunas in the ECHR protection when the EU is the main actor in the case and Member States have no role in the decision or in the procedure. This is particularly true as far as procedural safeguards are concerned, especially related to the internal judicial review of the EU legal order. Indeed, the protection of human rights by the ECJ is subject to many limitations, mostly due to the nature and the structure of the judicial review of the EU. First, to be justiciable, the rights in question have to be considered as a part of EU law and protected areas must fall within the jurisdiction of the ECJ. Further, the latter is not obliged to rule on whether human rights have been violated, even if one of the parties to the proceedings has raised the issue. Protecting human rights is not the first aim of the ECJ that always has to ascertain those violations only in the light of the EU integration. Secondly, EU citizens 54

Ullens de Schooten and Rezabek v Belgium App no 3989/07 and 38353/07 (ECtHR 20 September 2011). MSS v Belgium and Greece App no 30696/09 (ECtHR, 21 January 2011). P De Hert, F Korenica, ‘The Doctrine of Equivalent Protection: Its Life and Legitimacy Before and After the European Union’s Accession to the European Convention on Human Rights’ (2012) 13 (7) German Law Journal 874. 55

916 The Accession of the EU to the ECHR have had limited locus standi before the ECJ, especially before the entry into force of the Lisbon Treaty. As a result, the EU’s internal protection of fundamental rights does not seem to be adequate. The approach of the ECJ towards fundamental rights has been strongly criticised. First of all, it was clear from the beginning that the decision of the ECJ to recognise those rights was ‘an act of self-defence of the Court for the enforcement of the primacy rule rather than a fundamental choice for the protection of fundamental rights within the Community’.56 The need for such a protection was based on the ‘communitarisation’ of commercial and economic law.57 That means that the main difference between Luxembourg and Strasbourg can be detected in the different aims of the two courts in approaching the topic: the ECtHR’s first and unique aim is human rights protection, primarily against state powers. On the contrary, until recent years, the ECJ ‘clearly subordinate[d] human rights to the end of closer economic integration in the Community’.58 The action Kern of the EU has always been the construction of a zone of free market and free movement; as a consequence, fundamental rights have represented since the beginning of ECJ case law an instrument to improve these policies.59 Furthermore, the reference to the ECHR and its case law without being subject to the external control of the ECtHR left the ECJ with a huge freedom in interpreting human rights law, which resulted in a sort of ‘à la carte use’ of the ECHR.60 In the human rights field, the ECJ is free to follow the Strasbourg Court in some cases, and to ignore its case law in other cases. No coherency with the ECtHR is required, given the lack of any external control. Although the ECJ refers to the ECHR and its case law ‘more frequently than the other way round’, the Court has often endorsed an autonomous interpretation. Nevertheless, in the last decades the attitude of the ECJ has changed. As the Kadi decision shows, the ECJ started ‘taking human rights seriously61 and to adhere more closely to the settled case law of the Strasbourg Court. As a result of the two-tiers structure as it actually exists ‘the EU may restrict rights more than Member State because the EU does not have to answer to the ECHR as it has not acceded to the European Convention’.62

56

Van der Velde (n 18) 63. As illustrated some decades by M Delmas-Marty (inter alia, Vers des principes directeurs internationaux et droit pénal. Criminalité economique et atteintes à la dignité de la personne (Paris, Editions de la Maison des sciences de l’homme, 2001), the boost to protect fundamental rights is intimately connected to the internationalisation of economy; see also Sotis (n 9) 110. 58 J Coppell and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 Common Market Law Review 669, 692. 59 Ibid, 692; Sotis (n 9) 111. 60 Sotis (n 9) 123. 61 We are making reference to the title of JHH Weiler and NJS Lockhart, ‘ “Taking Rights Seriously” Seriously: the European Court and its Fundamental Rights Jurisprudence’ (1995) 32 Common Market Law Review 51 and 579 with sharp critics to the Coppell and O’Neill opinion expressed in ‘The European Court of Justice’, cited n 57. 62 Sera (n 23) 173. 57

State of the Art 917 Examples concerning criminal justice area may be found in the concept of ‘criminal matters’,63 in the protection of the domicile,64 in the confidentiality for the lawyers65 and in the right not to give evidence against oneself.66 Even when explicit reference to ECtHR case law is made, the absence of an external control of the ECJ by the ECtHR may give rise to a kind of ‘reference abuse’. In Anklagemyndigheden v Hansen, concerning criminalisation of certain conducts in implementing an European directive, the possible restrictions to Article 6 of the ECHR have been discussed as the main argument by the Advocate General making references to cases of the ECtHR. Unfortunately those ECtHR decisions did not directly discuss the margin of appreciation, that was a crucial element of the Advocate General’s argument.67 Notwithstanding the reason for criticism, there is room for optimism. The protection of human rights is nowadays firmly rooted in EU law: over recent decades the ECJ has developed a rich and coherent picture concerning fundamental rights, going beyond the main scope of protecting the primacy of EU law. In addition, one might consider that the approval of the CFR changed the EU’s approach towards fundamental rights: with the CFR, rights departed from the original instrumental perspective; no longer were fundamental rights considered a useful tool for achieving other aims, the focus had moved to look at the protection of fundamental rights as one of the main goals of the ECJ action. On the other hand, the interaction between the two courts was not unidirectional: one might find at least two topics concerning criminal law in which the influence goes from 63 Differences in the concepts of ‘infraction pénale et sanction pénale’ according to Art 7 of the ECHR and the decision of the ECJ in Hansen (C-326/88); see A Bernardi ‘Commento all’articolo 7’ in S Bartole and B Conforti and G Raimondi (eds), Commentario alla Convenzione europea per la tutela dei diritti dell’uomo e delle libertà fondamentali (Cedam, Padova, 2001) 271 ff. 64 See A Cohen-Jonathan, Aspects européens des droits fondamentaux: libertés et droits fondamentaux (Paris, Montchrestien, 1999). On the protection of the business premises as a domicile, from the ECJ case law, see case C-46/87 Hoechst AG v Commission of the European Communities [1989] ECR 02859; position confirmed in two judgments of 17 October 1989, Dow Benelux v Commission (Case 85/87 [1989] ECR 3137, paras 28–30) and Dow Chemical Ibérica and Others v Commission (Joined Cases 97-99/87 [1989] ECR 3165, paras 14–16). An identical position has been adopted by the Court of First Instance of the European Communities in Joined Cases T-305/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij NV and Others v Commission [1999] 20 April 1999. The ECtHR, on its side, adopted a wider concept of ‘home’ including business premises in the case Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992) paras 30–33. In that case the Court established that ‘the word “domicile” (in the French version of Art 8) has a broader connotation than the word “home” and may extend, for example, to a professional person’s office’ (see Niemietz, cited above, p 34, para 30). Building on its ‘dynamic interpretation of the Convention, the Court considers that the time has come to hold that in certain circumstances the rights guaranteed by Art 8 of the Convention may be construed as including the right to respect for a company’s registered office, branches or other business premises’ (Société Colas Est and Others v France, App no 37971/97 ECtHR, 16 April 2002) para 41. 65 On professional privilege and the duty for the lawyers of information and cooperation in fighting money laundering in the ECJ case law, C-305/05 Ordre des barreaux francophones and germanophone, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles v Conseil des Ministres [2007] ECR I-05305 paras 33–34. On the confidentiality and professional privilege of the lawyer see the cases Niemietz v Germany App no 13710/88 (ECtHR, 16 December 1992); Kopp v Switezerland App no 23224/94 (ECtHR, 25 November 1998) para 50 and Foxley v United Kingdom App no 33274/96 (ECtHR, 20 June 2000) para 30. 66 On the different position of the ECJ and of the ECtHR, see the case 374/87 Orkem v Commission of the European Communities [1989] ECR 3283 and the decision in Funke v France, App no 10828/84 (ECtHR, 25 February 1993) paras 41–44. 67 For further remarks, see Sera (n 23) 175.

918 The Accession of the EU to the ECHR Luxembourg to Strasbourg. And this influence increased the level of protection of the rights involved. The first topic in which the ECJ case law influenced the decisions of the ECtHR concerns the retroactivity of the principle of the lex mitior. In Scoppola v Italy68 the ECtHR explicitly referred to the European Union’s Charter of Fundamental Rights and the case law of the Court of Justice of the European Communities.69 In particular, it recalled that in the case of Berlusconi and Others, the Court of Justice of the European Communities ‘held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the Member States’.70 Many other references to international and comparative law are provided. Nevertheless it is clear that the decision of the ECJ in Berlusconi played the major role and the strongest influence on the ECtHR’s reasoning in Scoppola. The Court overruled its previous decisions and finally affirms ‘that Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law’.71 Another case of direct influence from Luxembourg to Strasbourg referred to application of the ne bis in idem principle: the case law on Article 54 of the Schengen Agreement as developed by the ECJ forced the ECtHR to overrule its previous decisions on the concept of idem factum,72 affirming that ‘Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same’. Nevertheless, the problem of inconsistency mentioned above will not find a coherent solution without the accession of the EU to the ECHR.73 The following parts of this article seek to explore how the accession as proposed in the draft agreement may offer a solution to what was called the previous ‘symbiotic interaction of fragile complexity, continuously working out a solution to the sometimes awkward co-existence of the EU and the ECHR’.74

C. THE LONG ROAD TO THE ACCESSION

1. The Legal Basis for Accession With the entry into force of the Treaty of Lisbon, the EU finally has an explicit competence for that accession. According to Article 6(2) of the TEU: The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

This provision and the negotiations represent the ending of a start-up phase of 30 years.75 68

Scoppola v Italy App no. 10249/03 (ECHR, 17 September 2009). Scoppola v Italy, para 36 f. 70 Case C-387/02, C-391/02 and C-403/02 Berlusconi, Adelchi and Dell’Utri [2005] ECR I-03565 paras 66–69. 71 Scoppola v Italy, para 109. 72 Zolotukhin v Russia App no 14939/03 (ECtHR, 10 February 2009) paras 36 ff and 79 ff. 73 ‘Only accession will alleviate the problems’: Sera (n 23) 185. 74 Douglas-Scott (n 1) 631. 75 A Fadier, ‘Obstacles to overcome in EU’s accession to the European Convention of Human Rights by Agathe Fadier’, TEPSA BRIEF online, 15 December 2010. 69

The Long Road to the Accession 919 Accession was first proposed in 1979: the European Commission adopted the first Memorandum on the Accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms.76 In that document the Commission affirmed that the best way ‘of replying to the need to reinforce the protection of fundamental rights at Community level consists in the Community formally adhering to the ECHR’. The Commission identified many pros and cons bound to the choice of the accession. Arguments in favour of accession were: a) improving the image of Europe as an area of freedom and democracy; b) strengthening the protection of fundamental rights in the Community; c) strengthening of EC institutions. Nevertheless, several arguments were against the accession. The most relevant questions were the need for an internal catalogue of rights, the obligations arising from the signature of the Convention, and the risk of disrupting the jurisdictional system of the EC. In spite of all these cons, the Commission reached the conclusion that the accession of the EU to the ECHR seemed ‘desirable’, given that none of the difficulties were insurmountable. It implied, of course, the setting of appropriate institutional mechanisms. That proposal was renewed by the Commission’s Communication on Community accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 19 November 199077 and a mandate to negotiate the technicalities of accession was requested by the European Commission to the Council of Ministers. In 1993 an ad hoc group was created to deal with this question. Two main issues represented an obstacle on the long road towards the accession: the lack of competence of the European Community to accede to the Convention and the respect of the principle of autonomy of the EU’s legal order. On 26 October 1993, the Commission published a working document entitled ‘Accession of the Community to the European Convention on Human Rights and the Community legal order’, in which it considered in particular the questions as to the legal basis of accession and the monopoly of jurisdiction of the Court of Justice. Some years later the ECJ was requested to give an opinion on the Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In particular, the Court had to answer as to whether that accession ‘would … be compatible with the Treaty establishing the European Community’. In its opinion 2/94,78 the ECJ affirmed the particular position of the ECHR among the international instrument for the protection of fundamental rights. However, it ruled that the Community had no competence to accede to the ECHR, as the Community law stood at the date of the opinion. It held that although the respect for human rights constituted a requirement for the legality of Community measures, the accession to the ECHR would entail a substantial change to the Community regime for the protection of human rights in force at the time, as it would imply the insertion of the Community into a distinct international institutional system and the integration of the whole body of the provisions of the Convention into the Community legal order. Such a modification of the regime for

76 Memorandum on the accession of the European Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms, COM (79) 210 final, 2 May 1979. Bulletin of the European Communities, Supplement 2/79. 77 Communication of 19 November 1990, Doc SEC (90) 2087. 78 Opinion 2/94 of the Court of Justice of 28 March 1996.

920 The Accession of the EU to the ECHR the protection of human rights could thus only be implemented through an amendment of the Treaty.79 But neither the Amsterdam Treaty nor the Nice Treaty changed the regime in order to give the EU explicit competence to negotiate the accession. In 2004 the competence for the accession was included in the Constitutional Treaty. In the same year the Council of Europe laid the foundations for the entry of the EU in the ECHR legal system: accession is foreseen by Article 59 of the ECHR as amended by Protocol 14. After the failure of the Constitutional Treaty, in 2007 the Lisbon Treaty provided the legal mandate required to conclude the accession process. After the entry into force of the Lisbon Treaty (1 December 2009) and of the Protocol 14 (1 June 2010), negotiations started.80

2. Towards the Accession: It is a Duty The use of the imperative in Article 6(2) TEU makes accession unavoidable: accession is not only a right for the EU, but also a duty.81 This has been stated by the Council of the European Union: ‘The entry into force of the Treaty of Lisbon not only provides the legal basis to initiate negotiations in view of the accession of the European Union to the ECHR, but also makes the accession, an obligation of result’82 and confirmed by the Resolution of the EU Parliament: the Treaty provisions ‘do not merely constitute an option allowing the Union to accede but require the Union institutions to act accordingly’.83 Some scholars underline that ‘a failure to do so could be ground for an action for failure to act before the ECJ’.84 Accession is not only a duty but it is also urgent.85 The Stockholm Programme indicates that a ‘rapid’ accession to the ECHR should be made.86 Inviting ‘the Commission to submit a proposal on the Accession of the European Union to the European Convention on 79 See the analysis of G Gaja, ‘Report on Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, given on 28 March 1996’ (1996) Common Market Law Review 973. 80 These are the major steps of the accession process since October 2011: 17 March 2010: the European Commission proposed its directives for the negotiation process; 10 May: the European Parliament published a report on the institutional aspects of the accession; 19 May: resolution of the EU Parliament; 26 May: the Committee of Ministers of the Council of Europe gave an occasional mandate to its director committee of Human Rights to elaborate with the EU a legal instrument for accession; 4 June: EU Member States Ministers of Justice gave an official mandate to the European Commission to conduct the negotiations; 8 June: Council Decision authorising the Commission to negotiate the accession agreement of the EU to the ECHR (partly declassified); 7 July: the official negotiations between the COE and the EU starts, symbolised by the meeting between General Secretary of the COE Thorbjørn Jagland and Vice President of the EU Commission and Commissioner for Human Rights Viviane Reding; 17 January 2011: annual meeting of the two Courts. Joint communication from Presidents Costa and Skouris on the foregoing process. 81 T Lock, ‘Walking on a Tightrope: the Draft ECHR Accession Agreement and the Autonomy of the EU Legal Order’ (2011) 48 Common Market Law Review 1025, 1033. 82 Council of the EU, Brussels, 17 February 2010, 6582/10. 83 European Parliament Resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI). 84 Jacqué (n 11) 995. 85 F Tulkens, ‘Pour et vers une organisation harmonieuse’ (2011) 1 Revue trimestrielle droit europeen 27. 86 See point 2.1 of the Stockholm Programme—An Open and Secure Europe Serving and Protecting Citizens OJ C115/01.

The Long Road to the Accession 921 Human Rights as a matter of urgency’, it emphasised the need for a rapid accession of the EU to the ECHR, because it will help promoting citizens’ rights, representing a fundamental step in order to achieve an ‘integration through rights’. The importance of the accession has been stressed in relation to the fact that it ‘will reinforce the obligation of the Union, including its institutions, to ensure that in all its areas of activity, fundamental rights are actively promoted’. The EU Parliament, in its Resolution of 19 May 2010, ‘welcomes the commitment shown by the current Spanish Presidency in treating the accession as a “matter of urgency” and the positive and cooperative attitude of the Council of Europe in this respect; calls on the Belgian and Hungarian Presidencies to do their utmost to finalise the accession at the earliest suitable opportunity and in as simple and accessible a manner as possible, so that EU citizens may benefit as soon as possible from the Union’s accession to the ECHR’.87 Many factors contributed to the raise of the urgency of the accession: 1. accession to the ECHR, with compulsory jurisdiction of the ECtHR, was in recent years, and still is a condition for membership of the EU. 2. new bodies and new actions for the EU in many sensitive fields (foreign affairs, criminal justice area, etc). 3. all Member States of the EU would be submitted to the jurisdiction of the European Court of Human Rights (the ECtHR). 4. domestic authorities have also become accustomed to international human rights standards and international supervision; the ECHR has internal effect in their domestic legal orders and the jurisdiction of the ECtHR has become compulsory.

3. Is the Accession a Necessity? Together with the problems bound to the two-tier structure between the ECJ and the ECtHR, there are other reasons that underline the need for the accession. First, all the EU Member States are contracting parties of the Convention. The refusal of the EU to accede would create ‘déséquilibre et anomalie’.88 Some see, paradoxically, that the accession will be achieved only now when, with the entry into force of the Lisbon Treaty, the protection of human rights at EU level seems stronger than that afforded by the Convention, thanks to the binding force of the CFR and to the improvement of fundamental rights in the ECJ case law. But these arguments are not strong enough to contrast the accession. As underlined above, the two-tier protection system creates some conflicting areas. Many positive aspects of the accession have been underlined in official documents.89 They underline that accession constitutes a very important step, both politically and symbolically. It is a move forward in the process of European integration and involves

87 European Parliament resolution of 19 May 2010 on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), para 36. 88 Tulkens (n 84) 28. 89 See specifically the Draft report on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)) (Committee on Constitutional Affairs, 2009/2241(INI), 2.2.2010.

922 The Accession of the EU to the ECHR one further step towards political Union. This choice of the Lisbon Treaty sends a clear signal that the EU is ready for an external judicial review of its own regime of fundamental rights protection; it can be said that by subcontrol in the field of human rights protection, the accession will reinforce the EU legitimacy and its credibility. In this sense, it is a signal addressed both to EU citizens as well as the international community. Furthermore, accession will enhance the credibility of the EU’s human rights policy: despite the evolution of its case law, and the broadening of the EU competences, there are still important deficiencies in terms of human right protection at EU level. The accession will foster the coherence of human rights protection in Europe; it will avoid risks of divergence and discrepancy of differing interpretations between the two courts. A formal link between the two courts may ‘eliminate charges of double standards’90 in human rights protection. This is even more the case after the Lisbon Treaty that confers binding character of the CFR. The charter is more modern and complete than the Convention, due to the fact that it deals with issues that were unknown 50 or 60 years ago. The EU accession to the ECHR will therefore ensure that a complementary relationship, rather than one of competition, will prevail between the two courts. In addition, the ECJ is called to use the ECHR in interpreting the charter, but the ECtHR itself is the only court that is entitled to interpret the Convention.91 In addition, it will foster the coherence of human rights protection between the Member States of the EU, avoiding the possibility of the ECtHR rendering a judgment only against a Member State where a human rights violation stems from an act of Union law. Unlike remedies provided only at the national level, ‘those available in the system of the European Convention would not affect the uniform application of Community law’.92 While the Union’s system for the protection of fundamental rights will be supplemented and enhanced by the incorporation of the CFR into its primary law, its accession to the ECHR will send a strong signal concerning the coherence between the Union and ‘wider Europe’, constituted by the Council of Europe and its pan-European human rights system; this accession will also enhance the credibility of the Union in the eyes of third countries which it regularly calls upon in its bilateral reports to respect the ECHR. Lastly, accession to the ECHR will afford citizens protection against the action of the Union similar to that which they already enjoy against action by all the Member States; this is all the more worthwhile, because the Member States have transferred substantial powers to the Union. This is particularly true in criminal law, according to the new competencies of the EU based on the amended treaties. Since the ECHR and the case law of the Strasbourg Court represent the strongest indirect harmonisation actually existing in criminal law and criminal procedure. The introduction of a wider EU competence in these fields without acceding to the European Convention from the EU would have created a ‘potential conflict area’.

90 91 92

Douglas-Scott (n 2) 658. Tulkens (n 84) 28 Gaja (n 78) 989.

The Long Road to the Accession 923 4. Roadmap and Formal Procedure for the Accession Article 6(2) TEU does not specify the exact modalities for the accession. Some institutional modifications have to be made in order to make accession possible, both from a judicial and technical point of view. From the EU perspective, following the procedure set out in Article 218 TFUE, an accession treaty will be signed between the 47 parties to the Convention and the EU.93 The treaty must be approved by the Member States in accordance with their respective constitutional provisions. The accession procedure for the EU has a European phase and a national phase. According to Article 218 TFEU and Article 101 of the explicative report joint to Protocol 14, it is necessary to frame an Accession Agreement that will be concluded between the members of the Convention. At the EU level, the agreement has to be negotiated, approved by the European Parliament, adopted within the unanimity by the Council of Ministers and finally ratified by all the EU Member State according to their own constitutional procedures. On 27 September 2010, the Council adopted a Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights.94 It stated the opening of negotiations; the Commission was nominated as the Union negotiator. The Commission will conduct the negotiations in consultation with the Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons, as the special committee appointed by the Council, in accordance with Article 218(4) TFEU. From the Council of Europe point of view,95 many changes are needed to adapt the European Convention to the EU accession. The first and fundamental obstacle has been removed with the adoption of Protocol No 14 to the ECHR, now entered into force.96 Before that date, only states were admitted to join the Convention. Article 17 of the amending protocol modified Article 59 on signature and ratification of the Convention. New Article 59(2) ECHR provides: ‘The European Union may accede to this Convention.’ Once the EU procedure is complete, the agreement has to be ratified by 20 additional Member States of the Council of Europe. On the formalities for the accession, the CDDH (Steering Documents for Human Rights) indicates two alternatives: modifications could be brought about either through an amending protocol to the Convention or by means of an accession treaty to be concluded between the European Union, on the one hand, and the states parties to the Convention, on the other. The CDDH expressed a preference for the latter.97

93 Art 218(8) TFEU provides that the Council must act unanimously when concluding the accession treaty after having obtained the consent of the European Parliament according to Art 218(6) TFEU. 94 Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR), JAI 143, COHOM 43, FREMP 2, Brussels, 27 September 2010, 10817/10. 95 Explanatory Report Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention (CETS No 194) Agreement of Madrid (12.V.2009). 96 Protocol No 14 to the ECHR entered into force on 1 June 2010. 97 Report of the Steering Committee for Human Rights (CDDH), 70th meeting, 15–18 June 2010, CDDH(2010)010, Strasbourg, 28 June 2010.

924 The Accession of the EU to the ECHR 5. Substantive Problems (a) Limits of the EU Accession It is difficult to ascertain whether the accession will include the Convention only or also some or all of its additional protocols. The problem arises from the fact that not all the Member State of the EU have signed all the ECHR Protocols. If the EU will subscribe all the Protocols, what will happen for those States who did not recognise some of the rights accepted by the EU? This point was discussed by the Spanish Presidency together with the future Belgian and Hungarian Presidencies, as stated also in the 18 months programme submitted by the Trio Presidencies on 22 December 2009. Many Member States fear that obligations they refused to subscribe to with the Council of Europe will ‘enter through the backdoor’ via the EU accession to the ECHR. The EU Parliament98 has observed that the ECHR system has been supplemented by a series of additional protocols concerning the protection of rights which are not covered by the ECHR and suggests that the Union should accede to all the protocols which at least partially concern matters where the Union possesses powers (ie Protocols Nos 1, 4, 7 and 12). This position does not take into consideration that Article 6(2) TEU draws no link between the protection of fundamental rights and the transferring of competencies from the Member State to the EU. In other words, this solution is based on ‘the old confusion between competence to act and the obligation to respect fundamental rights’.99 However, the discussion has to face the problem of coherency between the refusal to subscribe all the protocols and the rights recognised by the Charter of Fundamental Rights: ‘failure to accede to a protocol could imply that the EU refuses an external control on the respect of rights which it protects under its own Charter’.100 That is the case of double jeopardy, protected by Article 4 of Protocol No 7 to the ECHR—not ratified by Germany, Belgium and Poland—and granted also by the EU Charter of fundamental rights (Article 50). Other fundamental rights related to criminal law and involved in the EU developing criminal justice area are provided by additional protocols: eg Protocol No 7 protects the right of appeal to a higher court in criminal matters (Article 2); Protocol No 4, as amended by Protocol No 11, bans the expulsion of nationals and the collective expulsion of aliens. (b) The Protection of the Subsidiarity Principle The accession of the EU to the ECHR will—directly and indirectly—challenge EU laws, activities of the EU organs and the national measures applying or implementing the law of the Union. The challenge is to take into account fully the specificities of the EU. The first of these challenges relates to the possibility of the accession in the respect of the autonomy of the EU legal order. Two main aspects have to be highlighted: (i) the issue of the competencies; (ii) the interpretative autonomy of the EU law and the role of the ECJ in interpreting EU law. 98 See specifically the Draft report on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)) Committee on Constitutional Affairs, 2009/2241(INI), 2.2.2010. 99 Jacqué (n 11) 1003. 100 Ibid, 1003.

The Long Road to the Accession 925 (i) The Issue of the Competencies Article 6(2) TEU, as well as Article 2 of Protocol 8 attached to the Treaty of Lisbon, mention that the accession ‘shall not modify the EU competencies’ as defined by the Treaties. These statements reveal the concern that the ECtHR could express itself on the distribution of competencies between the EU and Member States. In reality, it could be sometimes difficult, especially for an individual, to know whether responsibility in the case of a breach in human rights is that of the EU or the Member States. It is even more complicated if we take into account that sometimes the transposition of EU law in national law can be done within a margin afforded to the Member States. In order to avoid uncertainty, there seems to be a consensus on the necessity to create a mechanism that takes into account the co-responsibility of the EU and the Member States. A ‘co-defendant mechanism’ allowing the joint participation of the EU and the Member States in the procedure, is already foreseen in the Law of the Sea Convention. (ii) The Interpretative Autonomy of the EU Law and the Monopoly of the ECJ in Interpreting the EU Law Another important issue is the preservation of the monopoly of the ECJ in the interpretation of the EU Treaties. For now, it seems possible that the European Court of Human Rights might have to interpret EC law in order to determine its conformity with the Convention. And this can happen not only in cases where there is no interpretation given by the ECJ before the case arrives in Strasbourg. On this particular point, the ECJ calls for a mechanism that would be able to ensure that the question of the validity of a Union Act can be brought effectively before the ECJ before the ECtHR rules on the compatibility of that act with the Convention. An example of what such a mechanism could look like has been developed by former ECJ judge Christiaan Timmermanns: he has suggested that the European Commission could ask the ECJ to rule on the compatibility of an EU Act with the Fundamental Rights when a complaint has not been rejected by Strasbourg. However, this somewhat severe mechanism could prove unnecessary, taking into account already established procedures under the preliminary rulings system, and the fact that, in any case, the ECtHR does not wish to substitute national or EU level courts by giving an interpretation of national or EU law. As some scholars have pointed out, in the field of international relations, national interpretation of the law is only a fact. Therefore, the ECtHR can only pronounce itself on the compatibility of the law with the Convention, an obligation that has been recalled in the conclusions of the Interlaken Conference.

6. Guidelines and Proposals: Position of the Council of Europe In 2002, the Council of Europe published a study on technical and legal issues of a possible EC/EU accession to the ECHR.101 In 2010, the Steering Committee for Human Rights (CDDH) stressed the importance of the 2002 CDDH Study on technical and legal issues of a possible EC/EU accession to the Convention102 as a basis for the Group’s work. Different

101 Strasbourg, 28 June 2002 DG-II(2002)006 [CDDH(2002)010 Addendum 2] Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25–28 June 2002). 102 CDDH(2002)010, cited n 96, Addendum 2.

926 The Accession of the EU to the ECHR solutions (an amending protocol or an accession treaty) discussed in that document were included in the report elaborated by the Steering Committee in June 2010.103 This report underlines the guidelines of the accession, pointing out that the objective of accession is ultimately to increase protection of the human rights of all individuals by filling an existing gap in this protection. For this reason, the solutions to be found should preserve the principle of equal rights of all individuals under the Convention system. It would be important to ensure a rapid completion of the drafting exercise, but since the questions at stake are complex, it would be of paramount importance to carefully work out the possible technical solutions in order to ensure the smoothest possible inclusion of the EU in the Convention system, taking into due account the specificities of the EU legal system. Furthermore, the system of the Convention as it stands should be preserved and that amendments and adaptations of the system (including, where appropriate, also of other Council of Europe instruments) should be limited to what is strictly necessary for the purpose of the accession of the EU as a non-state entity. Concerning the protocols to the Convention, it was underlined that the accession instrument should create the conditions allowing the EU to accede to all existing and future protocols, but that the choice of the protocols to which the EU would accede (already in the framework of the accession treaty or later) is a matter for internal discussion by the EU. There should be a judge elected in respect of the EU (much more controversial is the concrete participation to the Council104) and finally, there should be consistency in the approach to be followed on all the issues related to the participation of the EU in the Council of Europe bodies involved in the Convention system. With respect to the possible adaptation of the ECHR system to the specificities of the EU system, two points are controversial. They have been analysed starting from the conclusions of the preparatory study of 2002.105 The first topic is the possible introduction of a ‘co-respondent’ mechanism in proceedings before the Court: ‘the CDDH expressed broad consensus, in principle, on the usefulness of such a mechanism’. Other experts made criticisms: they underlined that it would be useful only in exceptional circumstances, and where applicants ‘misdirected’ their application. As a side effect, it would ‘have implications for the workload of the Court and for equality of treatment among the contracting parties and among the applicants’. On the relationship between the ECtHR and the ECJ, while bearing in mind the specificities of the EU system, many participants expressing their views ‘observed that the European Court of Justice should be considered as analogous to the supreme court of a State Party, and the relations between the two Courts should develop accordingly. In this respect, it was noted that it would be important to pursue existing channels for dialogue between the two Courts, that solutions could be found within the respective competencies, and that these questions would not necessarily need to be resolved in the accession agreement’.106

103

CDDH(2010)010, cited n 96. See CDDH(2010)010, cited n 96, paras 34 ff. 105 See annex IX of the Report of 2010 on the Informal meeting of member states’ representatives in the CDDH (Strasbourg, 4 May 2010). 106 Chapter II, item C.2 and Chapter III of the 2002 Report, cited. 104

The Long Road to the Accession 927 7. Position of the EU (a) The EU Parliament In the first draft report107 on the institutional aspects of the accession of 2 February 2010, the EU Parliament shows a careful approach to the accession in order to avoid two different consequences: first, the implicit growth of the EU competence (‘pursuant to the Treaty, accession does not entail any extension of the powers of the Union and in particular does not create a general human rights competence for the Union’). Secondly, accession cannot imply any modification of the single position of the Member States towards the ECHR (‘According to Article 2 of Protocol No 8 to the Lisbon Treaty, the agreement on the accession of the Union to the ECHR must not affect the particular situation of the Member States in relation to the ECHR and its protocols in general and with regard to any derogations and reservations made by Member States in particular, and that such circumstances have no effect on the legal position of the Union in relation to the ECHR’). Concerning the claims of the States pursuant to Article 33 of the ECHR, the Parliament considers that the Member States should not, with respect to one another and in their mutual relations with the Union, be entitled to bring interstate applications concerning an alleged failure of compliance pursuant to Article 33 of the ECHR when the act or omission in dispute falls within the scope of Union law, as this would be contrary to Article 344 TFEU. Concerning individual actions, the Parliament considers that any application by a citizen of the Union concerning an act or failure to act by an institution or body of the Union should be directed solely against the latter; any application concerning a measure by means of which a Member State implements the law of the Union should be directed solely against the Member State. Where the way in which responsibility for the act concerned is shared between the Union and the Member State is not clearly defined, an application may be brought simultaneously against the Union and the Member State. As a general statement, the Parliament considers it appropriate that, in the interests of the proper administration of justice, in any case brought against a Member State before the ECtHR which may raise an issue concerning the law of the Union, the Union may, after being authorised by the Court, be permitted to appear as a defendant in the case, and that in any case brought against the Union any Member State may, after being authorised by the Court, be permitted to appear as a defendant in the case. On the potential hierarchical conflict between the two Courts, the Parliament considers unwise both a formalised relation between the ECJ and the ECtHR by establishing a preliminary ruling procedure and the creation of a body or panel which would take decisions when one of the two courts intended to adopt an interpretation of the ECHR which differed from that adopted by the other. According to the EU Parliament, the existence of a regular dialogue between the two Courts, which should be reinforced when the Union accedes to the ECHR, avoids any need to formalise such a relation. As a consequence, it is clear that the ECtHR may find a violation in a case that has already been decided by the ECJ but the Parliament stresses that this would in no way cast a doubt on the credibility of the ECJ as an ultimate umpire in the 107 See specifically the Draft report on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)) Committee on Constitutional Affairs, 2009/2241(INI), 2 February 2010.

928 The Accession of the EU to the ECHR EU judicial system. Afterwards, on 5 May 2010 the EU Parliament adopted a Report on the institutional aspects of the accession of a European Parliament Resolution of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; this report included a motion for the adoption of a Parliament resolution in that topic.108 One important statement concerns the requirement set out in Article 35 ECHR for domestic remedies to have been exhausted: according to the Parliament Motion, ‘the applicant shall have exhausted the judicial remedies of the State concerned including a reference for a preliminary ruling to the Court in Luxembourg; the latter procedure shall be regarded as having been complied with where following a request to that end by the applicant the national court does not consider it appropriate for a reference for a preliminary ruling to be made’. In case of double jurisdiction, the Parliament notes that, following the EU’s accession to the ECHR, simultaneous referrals to the two courts will not be admissible. In order to achieve the best solution in adopting the final resolution, the EU Parliament and the Committee on Constitutional Affairs asked for an opinion both the Committee on Foreign Affairs109 and the Committee on Civil Liberties, Justice and Home Affairs.110 The Committee on Foreign Affairs seems to be very oriented to fully preserve the EU autonomy and supremacy in the international legal order. It points out that, ‘when an application is submitted under Art 34 of the ECHR, the defendant must be identified in accordance with the provisions of European Union law and subject ultimately to legal review by the Court of Justice and that this must not prejudice citizens’ rights to make individual applications’. This aim could be achieved introducing a declaration of competence: in the interests of legal certainty and transparency in international relations, individuals and nonMember States must be correctly informed as to which matters fall within the sphere of competence of the Member States and which within that of the European Union, if need be by means of a declaration of competence appended to the accession treaty; stresses, in this context, the need to establish an information mechanism that takes account of future developments in the distribution of powers between the European Union and its Member States.

This proposal goes together with its firm opposition to any mechanism for preventing divergences in case law between the ECtHR and the ECJ that would result in longer procedural delays for those seeking justice. The Committee on Civil Liberties, Justice and Home Affairs has a much more temperate position: it shared many of the opinions expressed in the draft proposals of the Parliament. However, they ‘encourage[d] the Commission to provide some guidance, in consultation with the ECJ and the ECtHR, on what constitutes the appropriate domestic remedy within the Union and on preliminary rulings under EU law; stresses, in this context, that it will be necessary to ensure that Member State courts refer cases to the ECJ when there is arguably a fundamental rights issue at hand’.

108 Report on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms A7-0144/2010, 10.5.2010, Motion for a European Parliament Resolution on the institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, (2009/2241(INI)). 109 Opinion of the Committee on Foreign Affairs for the Committee on Constitutional Affairs on institutional aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), 19 March 2010. 110 Opinion of the Committee on Civil Liberties, Justice and Home Affairs for the Committee on Constitutional Affairs on institutional aspects of accession by the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2009/2241(INI)), 27 April 2010.

The Long Road to the Accession 929 (b) Position of the Council of the European Union In the Council of the EU in February 2010111 the questions of the most appropriate manner to ensure that the accession complies with the conditions laid out in the Treaties and their Protocols were discussed (in particular Protocol No 8 relating to Article 6(2) of the TEU), such as the non-affectation of individual Member States’ situation vis-à-vis the ECHR, the non-affectation of the Union’s competences, or the preservation of the monopoly of the ECJ in the interpretation of EU law. Other relevant aspects of the accession have been analysed, such as the representation of the EU in the Council of Europe bodies which exercise functions related to the ECHR, such as the Parliamentary Assembly for what concerns the appointment of judges to the ECtHR, or the Committee of Ministers in its functions of supervision of the execution of judgements according to Article 46(2) ECHR. Much more concrete was the proposal to introduce a ‘co-respondent’ mechanism ‘ensuring that in certain cases both the European Union and the Member State concerned may, where appropriate, be parties in any proceedings before the European Court of Human Rights’. In the Draft Council decision on substantial aspects of the accession of 2 June 2010112 the Council suggested the guidelines to follow during the negotiations. On 4 June 2010 a negotiation directive was approved. The declassified contents explain that the accession shall not affect the competences of the Union or the powers of its institutions, in particular with respect to the competence of the Court of Justice of the European Union. Under Articles 263 and 264 TFEU, the ECJ has the competence to review the legality of legislative acts or other acts of the EU Institutions, and, if necessary, to declare the act concerned void. This includes the competence to rule on the compatibility of acts of EU institutions with fundamental rights. If the question of the compatibility of a Union act with fundamental rights has not previously been submitted to the ECJ, the question arises as to whether it is necessary to set up a specific mechanism to ensure, in these cases, an intervention of the ECJ prior to the ruling of the ECtHR. Different options are discussed in the document. According to a first solution, no specific mechanism is required.113 This option considers the rule of Article 35 ECHR as implying a previous involvement of the ECJ in the area of fundamental rights. Based on the ECtHR case law, according to which the arbitrary failure of a court of last instance of a MS to make a preliminary reference to the ECJ may constitute, if it appears to be arbitrary, a violation of the right to a fair trial under Art 6 ECHR,114 it could be argued that in such cases the ECtHR would only rule on this violation, while refraining from assessing the compatibility of the act complained with the ECHR under other reasons of complaint raised by the applicant. This would also imply that the Strasbourg Court interprets the requirement of exhaustion of domestic

111

Council of the European Union, Brussels, 17 February 2010, 6582/10. Council of the European Union, Brussels, 2 June 2010, 10568/10 Draft Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR). 113 Position reflected in the Commission’s recommendation for a Council decision authorising the Commission to negotiate the Accession agreement of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, doc 7668/10, Restreint UE FREMP 5 JAI 227 COHOM 74. 114 See Schweighofer v Austria, App no 35673/97 (ECHR, 24 August 1999); Lutz v Germany, app no 15073/07 (ECtHR, 13 February 2007). 112

930 The Accession of the EU to the ECHR remedies in the sense that the applicant must have raised the question of compatibility of the act of the EU with fundamental rights already before the national court and have formally requested (or informally suggested, where national law does not provide for this possibility) a preliminary reference to the ECJ on such matter.

However, given the competence of the national courts (Articles 267 and 274 TFEU) to interpret Union law, and taking into consideration that according to the case law of the ECJ the obligation to refer a question of interpretation of EU law, even by a court of last instance, suffers exceptions (such as in the case of an ‘acte clair’), it is also possible that the ECtHR may consider that the local remedies have been exhausted when a national court of last instance, although requested by the applicant to raise the question before the ECJ, has adopted a final decision without having requested a preliminary ruling, and that no further intervention of the ECJ is needed. A second solution would imply the creation of a specific mechanism to guarantee the preventive intervention of the ECJ. If it is considered that the existing provisions do not ensure the proper involvement of the ECJ and that the setting up of a special mechanism is required allowing the ECJ to rule on the compatibility of an EU act with fundamental rights before the decision of the ECtHR, different options have been proposed. (i) Judge Timmermans Option115 The Commission should be granted the possibility, once a claim is lodged by an individual before the ECtHR and has been declared admissible, to request the ECJ to rule on the compatibility of an EU act with the fundamental rights. In such cases, the procedure before the Strasbourg Court should be suspended until ECJ has given its ruling. (ii) Proposal by the Romanian Delegation Within the deadline for submitting written observation provided by the ECtHR rules of procedure, either the Commission or the Member States shall have the possibility to ask the ECJ to rule on the compatibility of an EU act with EU primary law, including the compatibility with fundamental rights, if the Luxembourg Court has not been called upon to give its opinion during the national procedure. The decision taken by the ECJ in such cases will be binding. The ECJ should treat such procedures with priority, in order to allow the EU and/or the Member State to submit its position before the ECtHR within the indicated period of time. That document indicates the risks to be considered in the setting up a specific mechanism. First, it may imply for the applicant a possible additional delay in the procedure before the Court of Strasbourg. This risk could be minimised if the ECJ were to deal with cases by way of urgency. However, according to the Commission, these cases should be treated according to the ordinary procedure before the ECJ, allowing for a thorough examination of the circumstance of the case. Secondly, this mechanism would raise the risk of ‘clashes’ between the two European courts; what will be the effects of the ECJ ruling with respect to the ECtHR?

115

2010.

Presentation by ECJ Judge Timmermans at the hearing of AFCO Commission of the EP on 18 March

The Long Road to the Accession 931 If neither of the two options outlined above should be acceptable to all delegations, intermediate solutions which combine elements of both should be explored, such as the adoption of provisions of soft law encouraging national courts, especially courts of last instance to consider a more strict interpretation of the obligation to refer a case to the ECJ according to Article 267(3) TFEU where the compatibility of an act of EU law with fundamental rights is raised before them.

8. Position of the Court of Justice The Court of Justice gave its opinion in a Discussion document on certain aspects of the accession of the European Union to the ECHR.116 According to the scholars, this has been ‘a resounding entry in the field of negotiations’.117 Strengthening the role of the subsidiarity principle and ‘in order to ensure that it is put into practice in the context of preparing for accession, the Union must make sure, as regards acts of the Union which are susceptible to being the subject of applications to the ECtHR, that external review by the Convention institutions can be preceded by effective internal review by the courts of the Member States and/or of the Union’.118 The aim is the full guarantee of the primacy of the ECJ in the EU judicial system: as established by the Treaties, the Court of Justice has the task of ensuring that in the interpretation and application of the Treaties the law is observed, and it alone has jurisdiction, as a result of its function of reviewing the lawfulness of the acts of the institutions, to declare it appropriate that an act of the Union is invalid. It is settled case law that all national courts have jurisdiction to consider the validity of acts adopted by institutions of the Union, but national courts, whether or not there is a judicial remedy against their decisions in national law, do not have jurisdiction themselves to declare such acts invalid. To maintain uniformity in the application of European Union law and to guarantee the necessary coherence of the Union’s system of judicial protection, it is therefore for the Court of Justice alone, in an appropriate case, to declare an act of the Union invalid.119 That prerogative is an integral part of the competence of the Court of Justice, and hence of the ‘powers’ of the institutions of the Union, which, in accordance with Protocol No 8, must not be affected by accession. In order to preserve this characteristic of the Union’s system of judicial protection, ‘the possibility must be avoided of the European Court of Human Rights being called on to decide on the conformity of an act of the Union with the Convention without the Court of Justice first having had an opportunity to give a definitive ruling on the point’.120 What is at stake in the situation referred to is not the involvement of the ECJ as the supreme court of the European Union, but the arrangement of the judicial system of the Union in such a way that, where an act of the Union is challenged, it is a court of the Union before which

116 Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (5 May 2010). 117 Jacqué (n 11) 996. 118 Discussion document, para 7. 119 See the judgment of the Court of Justice in Case 314/85 Foto-Frost [1987] ECR 4199. 120 Discussion document of the ECJ, para 8.

932 The Accession of the EU to the ECHR proceedings can be brought in order to carry out an internal review before the external review takes place. This preventive right to intervene in the case confers a strong role of the ECJ. As such, it has several consequences. It concerns all the possible clashes between the EU law and the ECHR, with no exemption, confirming the full incorporation stated by the new Article 6 of the TEU. Furthermore, it states a power to give a ‘definitive ruling on the point’ by the ECJ, with the intent to deny any possible hierarchical position of the ECtHR before the ECJ. This aspect is controversial: the ECtHR will not renounce its role of supreme court on human rights, with the power to overrule any decision taken by another national or international court, included the ECJ. The ECJ does not indicate which mechanism of judicial review will be suggested. One choice could be to rely on the preliminary ruling procedure provided for in Article 267 TFEU. But the ECJ is sceptical. Even if it has given altogether satisfactory results for more than half a century, ‘it is not certain that a reference for a preliminary ruling will be made to the Court of Justice in every case in which the conformity of European Union action with fundamental rights could be challenged. While national courts may, and some of them must, make a reference to the Court of Justice for a preliminary ruling, for it to rule on the interpretation and, if need be, the validity of acts of the Union, it is not possible for the parties to set this procedure in motion’. Moreover, ‘it would be difficult to regard this procedure as a remedy which must be made use of as a necessary preliminary to bringing a case before the European Court of Human Rights in accordance with the rule of exhaustion of domestic remedies’!121

9. Internal Review of the ECJ: Shaping the Remedy In a working document from the Commission of 10 January 2011, procedural rules governing the previous involvement of the ECJ in the context of the accession of the EU to the ECHR are at stake.122 The report refers to the following situation that may arise: (i) in a case brought against a Member State (regarding an act or failure to act of that Member State), at least one of the alleged violations of the ECHR is of the nature that it could not have been avoided otherwise than by disregarding a provision of Union law which is enshrined in an act of an institution, body, office or agency of the Union; (ii) because of such ‘substantive link’ between the alleged violation of the ECHR and an act of an institution, body, office or agency of the Union, a possible finding by the ECtHR establishing the alleged violation would amount, incidentally, to a finding that the Union act at issue is itself incompatible with a fundamental right set forth in the ECHR; (iii) the Union has joined the proceedings before the ECtHR as a co-respondent; 121

Discussion document of the ECJ, para 10. Council of the European Union Brussels, 22 December 2010, DS 1930/10, Working document from the Commission (Brussels, 10 January 2011) on the Previous involvement of the Court of Justice in the context of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 122

The Long Road to the Accession 933 (iv)

the Court of Justice has not yet ruled on the validity of the Union act at issue on account of the fundamental right as defined at the level of the Union which constitutes the equivalent of the fundamental right set forth in the ECHR the violation of which has been alleged in the proceedings before the ECtHR.

The document recalls that, for the purpose of the exhaustion of domestic remedies as required by Article 35(1) ECHR, a reference to the Court of Justice for a preliminary ruling is not in itself a domestic remedy. Indeed, the decision to actually request such a ruling is not in the hands of the applicant—who can only submit the suggestion to that effect—but belongs to the national court. Hence, where a reference to the ECJ for a preliminary ruling was suggested by the applicant but not made by the national court, it must be assumed that the ECtHR would accept exhaustion of domestic remedies and therefore not hold the application inadmissible on account of Article 35(1) ECHR. It suggests the guidelines to lay down procedural rules allowing the ECJ to assess the validity of the Union act at issue. The scrutiny has to be made on account of the fundamental right as defined at the level of the Union which constitutes the equivalent of the fundamental right set forth in the ECHR the violation of which has been alleged in the proceedings before the ECtHR. This new mechanism would be similar to those governing the preliminary ruling procedure. The question of the validity of the Union act at issue would be brought before the ECJ by a request. As to the actors who would be entitled to make such request, the document suggests that these are the Commission and the respondent Member State. The document indicates which kind of decision has to be taken by the ECJ on the merits of the request: a judgment or possibly, in certain circumstances, an order (but not merely by an opinion). In order to reduce the length of the procedure and the risk of an ‘enlargement’ of the scrutiny, the scope of the assessment to be carried out by the ECJ would be strictly limited to the validity of the Union act at issue on account of the relevant fundamental right. It would therefore not encompass other aspects of the validity of that Union act (eg compatibility with other fundamental rights, competence, choice of the legal basis, respect of essential procedural requirements). Such concentration of the procedure and of the pleadings will decisively contribute to ‘streamlining’ the procedure before the ECJ.

10. A Legal Tango: the Joint Communication of 17 January 2011 The presidents of the two courts, Presidents Costa and Skouris, published a joint communication summing up the results of the meeting of the delegations from the ECtHR and the ECJ on 17 January 2011. They proposed a distinction between direct actions and indirect actions. This distinction is based on the authority, body or agency which concretely adopted the measure: — —

Direct actions: individual applications directed against measures adopted by EU institutions subsequent to the accession of the EU to the Convention. Indirect actions: applications against acts adopted by the authorities of the Member States of the EU for the application or implementation of EU law.

934 The Accession of the EU to the ECHR In the first case, the condition relating to exhaustion of domestic remedies, imposed under Article 35(1) of the Convention, will oblige applicants wishing to apply to the ECtHR to refer the matter first to the EU courts, in accordance with the conditions laid down by EU law. Accordingly, it is guaranteed that the review exercised by the ECtHR will be preceded by the internal review carried out by the ECJ, and that subsidiarity will be respected. By contrast, in the second case, the situation is more complex. The applicant will have, first, to refer the matter to the courts of the Member State concerned, which, in accordance with Article 267 TFEU, may or, in certain cases, must refer a question to the ECJ for a preliminary ruling on the interpretation and/or validity of the provisions of EU law at issue. However, if, for whatever reason, such a reference for a preliminary ruling were not made, the ECtHR would be required to adjudicate on an application calling into question provisions of EU law without the ECJ having the opportunity to review the consistency of that law with the fundamental rights guaranteed by the Charter. Such a situation might arise because the preliminary ruling procedure may be launched only by national courts and tribunals, to the exclusion of the parties, who are admittedly in a position to suggest a reference for a preliminary ruling, but do not have the power to require it. That means that the reference for a preliminary ruling is normally not a legal remedy to be exhausted by the applicant before referring the matter to the ECtHR. In order that the principle of subsidiarity may be respected also in that situation, a procedure should be put in place, in connection with the accession of the EU to the Convention, which is flexible and would ensure that the ECJ may carry out an internal review before the ECtHR carries out external review. On the implementation of such a procedure, the joint communication states that: (i) it does not require an amendment to the Convention; (ii) the types of cases which may be brought before the ECJ have to be clearly defined; (iii) the examination of the consistency of the act at issue with the Convention should not resume before the interested parties have had the opportunity properly to assess the possible consequences of the position adopted by the ECJ and, where appropriate, to submit observations in that regard to the ECtHR, within a time-limit to be prescribed for that purpose in accordance with the provisions governing procedure before the ECtHR. (iv) In order to prevent proceedings before the ECtHR being postponed unreasonably, the ECJ might be led to give a ruling under an accelerated procedure.

11. The Draft Agreement on the Accession of October 2011 After the last meeting of October 2011, the CDDH-UE amended the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms.123 The Report underlines that the Draft Agreement

123 Annex to the Report to the Committee of Ministers on the elaboration of legal instruments for the accession of the European Union to the European Convention on Human Rights of the Steering Committee for Human Rights (CDDH), Strasbourg, 14 October 2011 CDDH(2011)009.

The Long Road to the Accession 935 aims to preserve the equal rights of all individuals under the Convention, the rights of applicants in the Convention procedures, and the equality of all High Contracting Parties. The current control mechanism of the Convention is, as far as possible, preserved and applied to the EU in the same way as to other High Contracting Parties, by making only those adaptations that are strictly necessary. The EU would, as a matter of principle, accede to the Convention on an equal footing with the other Contracting Parties, that is, with the same rights and obligations.124

Taking into consideration the adaptations due to the specific characteristics and nature of the EU, the Draft Instruments provided by the Agreement are considered ‘an acceptable and balanced compromise’. Nevertheless, the representative of the European Union stated that ‘there may be a need for further discussion the European Union’.125 As a consequence, the Draft Agreement is now discussed at the political level. According to the final text of the Draft Agreement, the main problems concerning the EU accession to the ECHR should find solution in the mechanisms set up by the Draft Instruments. First, as to the competence of the EU after the accession, Article 1 § 2c states that ‘Accession to the Convention and the Protocols thereto shall impose on the European Union obligations with regard only to acts, measures or omissions of its institutions, bodies, offices or agencies, or of persons acting on their behalf ’. The provision also states that ‘Nothing in the Convention or the Protocols thereto shall require the European Union to perform an act or adopt a measure for which it has no competence under European Union law’. Secondly, the final text indicates that the accession will involve both the ECHR and its Protocols.126 Thirdly, Article 3, amending Article 36 of the Convention, provides for the ‘Co-respondent mechanism’. Lastly, the Draft Agreement introduces a mechanism to assure in certain cases the ‘prior involvement’ of the ECJ in the case. The Co-respondency mechanism is called to play a critical role. Under the ECtHR jurisdiction the states against which an action is brought are called ‘respondent’. A corespondent would be ‘another party to the case’, ie another party whose liability is called into question for the same facts. In other words, it is when an action is directed simultaneously against several parties. It is immediately important to notice however that only the EU or a Member State of the EU may acquire the status of ‘co-respondent’ by a decision of the ECtHR. Two main situations may imply the application of the co-respondency mechanism. According to Article 3(2) of the Draft Agreement, where an application is directed against one or more Member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, notably where that violation could have been avoided only by disregarding an obligation under European Union law. Similarly, Article 3(3) of the Draft Agreement maintains that

124 125 126

Ibid para 8. Ibid para 9. Art 1(2)2.a of the Drafted Agreement cited above.

936 The Accession of the EU to the ECHR where an application is directed against the European Union, the European Union member States may become co-respondents to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of the Treaty on European Union, the Treaty on the Functioning of the European Union or any other provision having the same legal value pursuant to those instruments, notably where that violation could have been avoided only by disregarding an obligation under those instruments.

Only the Court of Strasbourg may decide whether the EU or an EU Member State may become a co-respondant, assessing if it is ‘plausible’ that the substantial criteria set out above are met.127 The Draft Agreement offers a solution to protect the principle of autonomous interpretation of the EU law providing for a ‘prior involvement’ of the ECJ in cases in which the co-respondancy mechanism applies. Article 3(6) states that: in proceedings to which the European Union is co-respondent, if the Court of Justice of the European Union has not yet assessed the compatibility with the Convention rights at issue of the provision of European Union law as under para 2 of this Article, then sufficient time shall be afforded for the Court of Justice of the European Union to make such an assessment and thereafter for the parties to make observations to the Court. The European Union shall ensure that such assessment is made quickly so that the proceedings before the Court are not unduly delayed. The provisions of this paragraph shall not affect the powers of the Court.

12. Provisional Evaluation and Remarks on the Draft Agreement In sum, the Draft Agreement seems to offer an adequate and balanced solution to the main problems related to the accession. Nevertheless, some concerns with regard to the presentation of individual claims may arise. In order to improve the protection of fundamental rights, it would be preferable to avoid any additional duty on the individual. Often in the official documents and doctrinal discussions came on the surface the problem of the admissibility of an individual claim involving EU law. According to Articles 33 and 34 of the ECHR, the individual has to indicate which is the high contracting party against which the action is taken. This is a prerequisite for admissibility. In order to avoid problems for the individuals and to ease their access to the Strasbourg Court, it would be preferable to separate the question of the admissibility from the question of the correct allocation of the substantial liability. In other words, the claim should be considered admissible even if it recalls only the Member State or the EU liability, as long as it fits all the other formal requirements. It will eventually be the aim of the judgment to verify which High contracting party is finally responsible for the violation. After all, as was said above, it is the ECtHR’s final responsibility to assess whether all the requirements are met for allowing a situation of co-defendancy. With regard to the introduction of a co-respondent mechanism, the representatives of civil society128 suggested that, while the introduction of such a mechanism was in general

127

Art 3(5) of the Draft Agreement cited above. Draft meeting report of the fifth working meeting of the CDDH Informal Working Group on the Accession of the EU to the ECHR with the EU Commission, Strasbourg, 28 January 2011, CDDH-UE(2011)03. 128

The New Interaction Between the Two Courts 937 to be welcomed and certainly to the applicant’s benefit, its application should rather be handled with caution. They underlined that in the majority of cases involving EU law it would be sufficient to involve the EU as a third party to the proceedings, rather than as a co-respondent, and that the use of the co-respondent mechanism would add considerable burden on the applicants, not least with regard to legal costs. As anticipated, the draft agreement also provide for a peculiar mechanism to assure the ECJ’s prior involvement in the case under certain conditions. The prior involvement of the ECJ as shaped by Article 3(6) of the Draft Agreement has essentially been devised to protect the autonomy of the EU law.129 Under this mechanism, the ECJ would be given the possibility to adjudicate on the case from a purely EU perspective. Observations from the representatives of civil society130 underlined the importance to apply to the EU with regard to the Court’s jurisdiction ratione temporis the same standards as for any other High Contracting Party that had acceded to the Convention system in the past. Furthermore, it seems appropriate for the sake of the equality of arms that the person bringing the complaint to the ECtHR should be entitled to trigger a decision by the ECJ. It would appear useful to envisage an intervention of interested third parties in preliminary ruling proceedings before the ECJ regarding an alleged violation of fundamental rights. If a human right is alleged to be violated by EU law, this violation would affect numerous citizens.

D. THE NEW INTERACTION BETWEEN THE TWO COURTS

1. Focusing on Criminal Law In assessing whether the entry into force of the Lisbon Treaty changes the interaction of the Luxembourg and Strasbourg Courts, two factors have to be taken into consideration: the impact of the new legal value of both the CFR and the ECHR into the EU legal system and the future accession of the EU to the ECHR in the light of the described draft agreement. The accession will indeed entitle the applicants to address the complaints directly against the EU if the alleged violation is related to primary law, secondary law, executive actions or omissions or in decisions of the Union’s courts.131 Being this report conceived to analyse the issue from the perspective of the criminal law, we will draw a distinction between, on the one hand, those EU law and activities that confer protection to fundamental rights and, on the other hand, EU law and activities that affect fundamental rights. This division, it should be stressed here, is not unproblematic but it still appears as a useful way to deal with such a complicated issue.

2. EU Law Conferring Fundamental Rights In very recent years, EU law has provided for new instruments having the aim to protect fundamental rights. Not only the Treaties as amended in Lisbon conferred a new legal value

129

Lock (n 80) 1034 f for a detailed analysis of the autonomy of the EU legal order in relation to the acces-

sion. 130 131

Draft meeting report of the fifth working meeting of the CDDH (n 128). Lock (n 80) 1034.

938 The Accession of the EU to the ECHR to the Charter of Fundamental Rights and recognised the ECHR provisions as general principles of the EU law. Beside these capital texts, two directives concerning specifically procedural safeguards have been recently adopted: the Directive on the right to interpretation and translation in criminal proceedings of 2010,132 and the Directive on the right to information in criminal proceedings.133 Furthermore, the EU bodies will continue to strengthen procedural safeguards of suspected and accused persons in criminal proceedings according to the Roadmap adopted by the Resolution of the Council of 30 November 2009, appended to the Stockholm Programme approved by the European Council of 10–11 December 2010. As regards the position of the victim, a new draft directive has recently been issued by the Commission to amend the previous framework decision concerning the protection of the victim in criminal proceedings. All these measures may have several effects in the interaction between the two supreme European Courts. They may have the concrete effect of reducing complaints to the ECtHR, in that they offer a higher standard of defendants’ and victims’ rights in criminal proceedings. National courts will be obliged to comply with the obligations established at the EU level offering to suspects and victims a higher standard of protection and avoiding possible clashes with the guarantees enshrined in the ECHR. In addition, EU legal instruments on the harmonisation of procedural rights may positively influence the interpretation of the Strasbourg Court: although new EU directives will be binding only for the EU Member States jurisdictions, in interpreting the ECHR the Strasbourg Court will take into account the EU standards in order to decide what are the contents of the rights. In fact, especially as the directives on the rights of the suspect in criminal proceedings are concerned, the EU new legal instruments provide for a rich and complete catalogues of rights to be respected in the proceedings, even more precise that the standards established by the ECtHR. A decrease of the applications filed by the individuals to the ECtHR in criminal matters may also be expected thanks to the combined effect of two critical changes of the Lisbon Treaty. First, the ECJ has new and stronger decisional powers as far as the criminal law is concerned. According to Article 263 TEU, the Court of Justice is now competent to ‘review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-àvis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties’.134 The conditions for the individuals to bring an action against bodies, offices or agencies of the EU are laid down in Article 263(4): a natural or legal person may ask for the review of the legality of [A]n act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.135

132 Directive of the Parliament and of the Council (EU) 2010/64/EU on the right to interpretation and translation in criminal proceedings [2010] OJ L280/1. 133 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings. 134 Art 263(1) TFEU. 135 Art 263(4) TFEU.

The New Interaction Between the Two Courts 939 In addition, Article 267 widened the application of the preliminary ruling procedure beyond the limits previously provided by Article 35 TEU.136 That means that when a specific activity is carried out by a EU organ, the violation of a fundamental right may be subject to the scrutiny of the Court of Justice. Furthermore, widening the control of the ECJ via preliminary ruling, national courts will ask more frequently for the interpretation of EU law and their compliance with human rights law. These provisions may offer to human rights litigants different avenues: unlike under the ECHR where the applicant must exhaust all domestic remedies in order to get a hearing in Strasbourg, applicants may get a ruling from Luxembourg by way of a preliminary reference from a domestic court. Another cause for the decrease of complaints brought to the ECtHR may come from the new role of the CFR into the EU legal order and the incorporation of the ECHR in the acquis communautaire. The binding value of the Charter and of the ECHR—via the impact of Article 6(3) TUE and Article 52(3) of the CFR—may reduce the applications to the Strasbourg Court. In that way the new provisions impose at least the equivalence between the protection accorded by the Charter and the one accorded by the ECHR.137 Domestic courts also have the power to set aside national measures which conflict with EU human rights law—which provides a much faster remedy than a Strasbourg lawsuit and subsequent enforcement by the Council of Europe Committee of Ministers’.138 Furthermore, the new EU acquis concerning human rights gives the Convention added strength through EU law.139 An increasing penetration of the ECHR into national systems and duties for national courts stem from the new status of the ECHR as general principles of the EU law. Many examples of the advantages of the new status of the ECHR through the EU may be found in the national supreme courts’ decisions. In Germany, the Bundesverfassungsgericht was reluctant to recognise and fully apply the Convention and Strasbourg decisions, even related to German system.140 In Italy, the Corte costituzionale denied the power for the national courts to derogate national laws in order to fulfil the international obligations related to the ECHR as interpreted by the Strasbourg Court. When it is impossible to reconcile national law and ECHR obligations, a declaration of incompatibility of national law in the light of the ECHR may be adopted only by the Corte costituzionale.141 On the contrary, Article 11 of the Italian Constitution grants EU law a higher penetration power compared to international law. The ‘communitarisation’ of the Convention may bring the constitutional courts to recognise primacy and direct effect to the ECHR and it may allow national courts to interpret internal law in conformity with the Convention or to refuse to apply national law affecting fundamental rights without the constitutional check of

136 On the judicial control in criminal matters before and after the Lisbon Treaty, see A Weyembergh and V Ricci, ‘Le traité de Lisbon et le contrôle juridictionnel sur le droit pénal de l’Union européenne’ in S Braum and A Weyembergh (eds), Le contrôle juridictionnel dans l’espace pénal européen (Brussels, Editions de l’Université de Bruxelles, 2009) 227 f. 137 Douglas-Scott (n 2) and cited case law. 138 Ibid, 657. 139 Ibid, 657. 140 Decision of the Bundesverfassungsgericht 2 BvR 1481/04 of 14 October 2004 based on Görgülü v Germany App no 74969/01 (ECtHR, 26 February 2004). 141 See decisions of the Italian Corte costituzionale, 24 October 2007, nos 348 and 349.

940 The Accession of the EU to the ECHR the Corte costituzionale.142 Similarly, in the UK, English courts are not allowed to set aside national law, in contrast with ECHR provisions. They must address Parliament asking for a ‘declaration of incompatibility’.143 The impact of the new EU legal order concerning fundamental rights may have effects on the interaction of the two courts concerning the contents and the level of protection of the single rights, and the accession may hence offer a higher balance within the EU fundamental rights law. The application of both the ECHR and the CFR will find a more coherent way in the dialectical confrontation between the ECJ and the ECtHR, not far from what happened in the connection between the ECJ and the national supreme courts. It is likely that contrasts of interpretation will at first arise, but they should soon dissolve. Contrasts related to fundamental rights issues could be dangerous because they would push the Member State in the awkward position of either breaching the ECHR or breaching loyalty to the EU.144 However, the fact that Strasbourg is given the last word on the matters concerning fundamental rights should allow to overcome contrasts and inconsistencies. Hence, while the ECtHR may profit from the ECJ’s interpretation and consequently enrich further its case law, it should also assure that the protection of fundamental rights is assured in a consistent manner in all cases. Clearly, the price that had to be paid in terms of the coherence of the system is the establishment of a ‘vertical hierarchy’ between Strasbourg and Luxembourg. Having empowered Strasbourg with external control of both EU legislations and activities of its bodies entails that the ECtHR holds a sort of ‘last word’ power to solve clashes and inconsistencies.145 Indeed, it is unlikely that the equivalence doctrine elaborated in the Bosphorus case will survive to the accession. According to the Draft Agreement, the ECtHR will have the last word on the assessment of the breach of the ECHR. This should put an end of the ECtHR deference attitude towards the EU acts and measures. In other words, after the accession, the Bosphorus doctrine ‘might no longer be acceptable to other parties of the Council of Europe, because the ECtHR does accord the same respect to the domestic human rights system of any State party to the Council of Europe’.146 One might further consider that any deferential privilege should be abolished because ‘such a privilege is even denied to those national courts that provide for a more effective protection of human rights rather than the ECJ’.147 Any form of presumption of equivalent protection privileging the EU would imply an iniquitous treatment towards the other parties of the Council of Europe.148

142 See the decision of the Italian Corte costituzionale, 7 March 2011, no 80. Finally the Constitutional Court denied the full ‘communitarisation’ of the ECHR: it has no power to require the judge to disapplicate national law that does not comply with the ECHR without asking for a constitutional review. 143 Douglas-Scott (n 2) 657, fn 46. 144 Sotis (n 9) 141. 145 S Catalano, ‘Trattato di Lisbona e ‘adesione’ alla CEDU: brevi riflessioni sulle problematiche comunitarie e interne’ in P Bilancia and M D’Amico (eds), La nuova Europa dopo il trattato di Lisbona (Milan, Giuffrè, 2009) 239. 146 W Weiß, ‘Human Rights in the EU’ (2011) 7 European Constitutional Law Review 95. 147 Lock (n 48) 375, 396. 148 Ibid, 395.

The New Interaction Between the Two Courts 941 3. EU Law and Activities Affecting Fundamental Rights The impact of the Lisbon Treaty has to be analysed in the light of EU law affecting fundamental rights. In recent years, the EU criminal justice area has mainly provided for ‘punitive’ measures. In order to improve judicial cooperation in criminal matters, in the last decade the Council has adopted many framework decisions, most of which aimed at introducing and improving the principle of mutual recognition in the field of judicial cooperation. It is the case of the European Arrest Warrant,149 of the European Evidence Warrant,150 of the framework decisions concerning freezing orders151 and confiscation of crime-related proceeds, instrumentalities and property.152 Other framework decisions have imposed on Member States the obligation to criminalise certain conducts or to increase the penalties provided for certain offences. As a result, EU criminal law’s first aim was to increase the toolbox at the disposal of national courts and prosecutors in order to assure an area of security and justice. Until 2010, with the exception of the framework decision on victims’ rights, no EU measure had been issued to confer specific procedural safeguard. As mentioned above, it was only in very recent times that new directives were enacted providing for specific procedural safeguards of the suspect in criminal proceedings. All these measures affect fundamental rights of the individual in a direct and indirect way. After the accession, their implementation and application may be subject to the external control of the ECtHR. The specific nature of the framework decision required a national implementation of the measures adopted by the EU. As a result, Member States’ implementations could differ greatly between themselves and some of those national texts could even depart significantly from the text adopted by the EU, since the ECJ only had the power to give a preliminary ruling on the interpretation of the framework decisions. After the accession, a complaint to the ECtHR related to a breach of fundamental rights in the execution of a freezing order or of an European arrest warrant will involve first the Member State (or Member States, if more than one) that concretely adopted and executed the measure. But it might happen that the breach is in fact due to the obligations for the state to comply with the EU framework decision. In such a case, the EU might be called in as a co-respondent before the ECtHR. The co-respondency mechanism is an attempt to give an answer to the main issue concerning the control on EU law carried out by the Strasbourg Court. According to the solution offered by the Draft Agreement, both the EU and Member States will be held responsible for fundamental rights violation carried out in execution of national and EU law combined. Some further distinctions can help better understand how the two courts will interact when the EU law is at stake.

149 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [2002] OJ L190. 150 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 [2008] OJ L350/72. 151 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence [2003] OJ L196. 152 Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property [2005] OJ L68/49.

942 The Accession of the EU to the ECHR First, if the violation depends on EU primary law, and specifically the law of the treaties, no European institution may amend it.153 Secondly, the violation may be the effect of a national law adopted in consequence of EU law. In these cases it is for the ECJ to assess the level of the discretion in implementation and the consistency between EU law and its implementation into national systems. To this aim, the prior involvement of the ECJ described in the Draft Agreement seems to be an adequate solution to assess who holds the effective responsibility for the violation eventually established by the Court of Strasbourg. Furthermore, the accession of the EU to the ECHR will have the effect of putting under the external control of the Strasbourg Court all the activities of the EU bodies. As far as criminal law is concerned, it would imply an external control on the EU bodies and agencies carrying out ‘criminal’ investigations defined according to the ‘Engel criteria’ (see below). EU institutions and agencies have seen a considerably increase of their powers in very sensitive fields, and especially in criminal law. The possibility to challenge in front of the Strasbourg Court the breach of procedural safeguards as a consequence of EU activities carried out by EU bodies will increase considerably the protection of fundamental rights. At present, no remedy is offered for these breaches of rights, save for EU’s internal forms of judicial review. Strasbourg and national courts have no say over them. The accession of the EU to the Convention and the extension of the ECtHR’s jurisdiction will ‘alleviate the situation in which there is no possible remedial action in Strasbourg unless EU law has been implemented by some act on Member State territory’.154 It is a way to satisfy the need for external judicial supervision of EU institutions. The introduction of a European Public Prosecutor Office (EPPO) will create a kind of semi-mandatory co-respondence before the Strasbourg Court. As provided by Article 86 TFUE, the EPPO [S]hall be responsible for investigating, prosecuting and bringing to judgment ... offences against the Union’s financial interests ... It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

Drawing a clear distinction between the European phase of investigation and prosecution and the national phase of trial, Article 86 TFEU describes a mechanism which will see the involvement of the EU organ and of the national courts in the same proceedings. Consequently, a breach of fundamental rights occurred in the investigation may have consequences during the trial.155 In such a case, both the EPPO and national courts could be held responsible in front of the ECtHR. Despite the above observations, some might argue that criminal law is still a minor field for the EU action and claim that the interaction between the two courts will have a limited impact on the general asset of the powers. Such a view is short-sighted. As a matter of fact, the accession will imply new boundaries for EU ‘criminal law’. To only mention one radical consequence, EU criminal law will now 153

Douglas-Scott (n 2) 664. Ibid, 659. 155 An echo of such an issue may be found in the protection of procedural safeguards in the case of cooperation in criminal matters, especially in the gathering of evidence abroad, see AAH van Hoek and MJJP Luchtmann, ‘Transnational Cooperation in Criminal Matters and the Safeguarding of Human Rights’ (2005) 1 Utrecht Law Review 1. 154

The New Interaction Between the Two Courts 943 be defined according to the ECHR standards. It is widely known that, in order to escape the narrow definitions of national laws, the ECtHR took a broad view of criminal law and built up an autonomous concept of ‘criminal charge’ which revolves around the concept of ‘substantial affliction’: any measure that impose a punishment which substantially afflicts the person can be considered a criminal charge. It is also well-known that several guarantees of the Convention, and specifically those enshrined in Article 6, are applied to concrete cases according to the so-called Engel-criteria: the nature of the offence and the degree of stigma attached to it, the severity of the possible penalty, and the classification of the offence under domestic law.156 Even if the ECtHR still differentiates cases involving ‘hard core criminal law’ and other cases, this broad view of the Strasbourg Court would attract competition law and antitrust proceedings in the sphere of the ECHR protection.157 As a consequence, under the ECtHR’s perspective, it can in no way be excluded that a sanction may be imposed by an administrative organ with an administrative decision on condition that a judicial review is granted.158 Nowadays the ECJ recognises several procedural safeguards in antitrust cases, such as the presumption of innocence, the right to be heard and the right to a fair trial within a reasonable time.159 Even if no evident clash is foreseeable, a closer look at the functioning of antitrust proceedings may bring to light some forms of inadequate protection. For instance, there are still aspects of the Commission procedure that are disputable.160 Similar problems will concern all those administrative sanctions related to anti-terrorism strategies161 adopted by the EU or visa, asylum and renditions policies: every measures adopted by the EU in these fields will be subject to the ECHR and to the ECtHR’s external control. Finally one might argue which will be the impact of the Strasbourg decision ascertaining a violation of the Convention due to the EU secondary law. According to Article 46 of the Convention, the ECtHR decisions have no direct effect into national systems. They have a

156 The ECtHR’s established case law sets out three criteria, commonly known as the ‘Engel criteria’ (see Engel and Others v the Netherlands App no 5100/71, 5101/71, 5102/71, 5354/72, 5370/72 (ECtHR, 8 June 1976)), to be considered in determining whether or not there was a ‘criminal charge’. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternatives and not necessarily cumulative. It is enough that the offence in question is by its nature to be regarded as criminal or that the offence renders the person liable to a penalty which by its nature and degree of severity belongs in the general criminal sphere (Ezeh and Connors v United Kingdom App no 39665/98; 40086/98 (ECtHR, 9 December 2003, para 86)). 157 Stenuit v France App no11598/85 (Report of the EComHR, 30 May 1991) paras 60–69, recently confirmed in Menarini Diagnostics srl v Italy App no 43509/98 (ECtHR, 27 September 2011) paras 38–42. 158 See more recently Menarini Diagnostics srl v Italy App no 43509/98 (ECtHR, 27 September 2011) paras 46–56. 159 For all the relevant references, see A Andreangeli, EU Competition Enforcement and Human Rights (Cheltenham, Edward Elgar, 2008). 160 See, inter alia, the recent decision of the European Ombudsman of 3 October 2011: tasked with responding to complaints of maladministration by EU institutions or officials, published a decision on a complaint about the European Commission’s refusal to provide access to its internal manual of antitrust procedure and competition law for cases involving the application of Arts 101 and 102 TFEU under Regulation 1/2003 (the so-called ‘ManProc’). The Ombudsman provisionally concluded that the Commission should have made at least a partial disclosure of the manual and its failure to do so constituted an instance of maladministration. As a result of the Ombudsman’s decision, the Commission has announced that it will publish a limited version of the ManProc. See www.mondaq.com. 161 See Professor Iain Cameron, ‘The European Convention on Human Rights, Due Process and United Nations Security Council Counter-Terrorism Sanctions’.

944 The Accession of the EU to the ECHR ‘declaratory nature and only binding under international law’.162 The contracting parties ‘undertake to abide by the final judgment of the Court in any case to which they are parties’. According to these premises, the invalidity of the European law should require a decision of the ECJ that is the only organ entitled to annul EU law. That implies a further step in the complex procedure to protect procedural safeguards in the EU. Many are the variables that will play a role in this complicated interplay of different systems and of different courts. It is for these reasons that is difficult to predict precisely what the real consequences of the accession will be in the practice. Only the future will tell. The present situation is still uncertain. But one thing is immediately clear: far from being a minor change, the accession of the EU to the ECHR represents a Copernican revolution, which will change most of our consolidated paradigms in the field of the protection of human rights within the European Union.

162

Lock (n 80) 1037.

26 Transverse Report on Judicial Control in Cooperation in Criminal Matters: The Evolution from Traditional Judicial Cooperation to Mutual Recognition ANNE WEYEMBERGH1

Introduction

C

ONSIDERING THE EVOLUTION of judicial cooperation in the EU framework, the question arises whether such evolution has had consequences in the field of judicial control. This report aims to examine whether the passage from traditional judicial cooperation to mutual recognition has resulted in an evolution concerning judicial control and, if so, what evolution. Such an examination should allow us to see in particular whether a new ‘common model’ of judicial control has emerged with mutual recognition, and to verify—or not— the idea that the passage from classical cooperation towards mutual recognition has led to a reduction of judicial control. Such a study could be of essential importance for the establishment of the EPPO insofar as, depending on the EPPO’s design, it might have to resort to these mechanisms of judicial cooperation, at least if they concern investigations and prosecutions. In order to tackle the problems raised by the topic of the study and in order to define the limits of this report, the meaning of the concept ‘judicial control’ will first be clarified (section A). We will then study if and how the question of judicial control is dealt with in the European instruments organising traditional judicial cooperation and mutual recognition (section B). In this regard, the letter of the instruments organising the cooperation will of course be examined. But since most of these texts are either silent or quite

1 The author would like to express her gratitude to the following experts who agreed to be interviewed: Gisèle Vernimmen, former Head of Unit at the European Commission and Scientific Collaborator at the IEE-ULB (Brussels, 8 October 2010); Serge de Biolley, Permanent Representation of Belgium (Brussels, 20 October 2010 and 14 September 2011); Daniel Flore, Service public fédéral Justice (SPF Justice) (Brussels, 30 October 2010 and 2 December 2011); Stéphanie Bosly, Service public fédéral Justice (SPF Justice) (Brussels, 28 October 2010); Adrienne Boerwinkel, Ministry of Justice of the Netherlands (Brussels, 19 October 2010); Stefaan Guenter, substitut du procureur général of Ghent (Brussels, 14 October 2010); Thomas Lamiroy, Federal Prosecution Office (Brussels, 14 October 2010) and Anze Erbeznik, Committee on Civil Liberties, Justice and Home Affairs, European Parliament (Brussels, 25 October 2011). The author wishes also to express her gratitude to Professor John Vervaele for his essential remarks and comments.

946 Judicial Control in Cooperation in Criminal Matters vague concerning the issue of judicial control, it will be necessary to make an examination upstream and downstream of these texts. Upstream, the principles and philosophy lying behind these texts are very interesting (section C) and, downstream, the internal implementing/transposing measures are also quite interesting. That’s why we will also take a look at the judicial control in national law organising international cooperation and/or implementing the European texts, and at national practice (section D). The limits of this report should be taken into account. It does not pretend to exhaust the subject. It should only be seen as a first attempt to better define the issue and better identify the questions at stake.

A. THE CONCEPT OF ‘JUDICIAL CONTROL’: PRELIMINARY CLARIFICATIONS

This concept is far from being clear. Different distinctions are to be made according to the object of control (section 1), its objective or ‘level’ (section 2), its owner (section 3) and its nature (section 4).

1. The Object of the Control The report will focus on the control performed in the framework of cross-border judicial cooperation only, either traditional judicial cooperation or mutual recognition, the purpose of the study being as mentioned previously to examine whether the passage from one kind of cooperation to the other has resulted in a change regarding control. Two distinctions need to be made here. The first one concerns the measure or decision, which is the object of control: —

—

Either the control concerns the measure or decision which was adopted in the requesting or issuing State and which forms the basis of the request of cooperation or which is to be recognised and executed. There is then a further distinction according to the ‘author’ or ‘the place’ where such control is performed. Besides the existing controls at the European level, which are not covered by this report (see below), such control may occur in the requesting or issuing State itself or it could also be exercised in the requested or executing State in order to decide whether to cooperate or execute the decision or measure concerned. It is indeed especially interesting to check in what respect and to which extent the control exercised by the requested or executing authorities when deciding to provide cooperation or to recognise and execute implies a control on the initial measure or decision adopted by the requesting or issuing Member State. In this regard, a study of the different grounds for refusal is interesting; … or the control concerns the decision of the requested State to provide cooperation or of the executing State to recognise and execute the initial measure or decision. There is then also a further distinction according to the author or the ‘place’ where such control is performed. Again, besides the existing controls at the European level, which are not covered by this report (see below), it may occur in the requested or executing State via the organisation of checks or reviews focused on the decision to

The Concept of ‘Judicial Control’: Preliminary Clarifications

947

cooperate or it could also be organised in the requesting or issuing state, for instance when the elements of proof collected in the requested or executing state are ‘repatriated’ in the requesting or issuing state. The second distinction concerns the stage of procedure where the judicial cooperation takes place: it can either intervene at the pre-trial stage or intervene after trial. The question of judicial control has of course a very different content and connotation, depending on whether it is related to cooperation intervening before judgment or afterwards.2 Although this contribution covers cooperation at all stages, it is mainly the examination of pre-trial cooperation, which presents an interest for the establishment of the EPPO. Cooperation intervening at the pre-trial stage is in fact quite complex. It concerns numerous various measures, ie investigations measures (see MLA conventions,3 FD 2008/978/JHA of 18 December 2008 on the European Evidence warrant (EEW)4 and the proposal for a directive on the European Investigation Order (EIO)5) or pre-trial—and thus temporary— measures related to goods (see MLA conventions, FD 2003/577/JHA of 22 July 2003 on the execution in the EU of orders freezing property or evidence6) or persons (extradition conventions7 and FD 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures (EAW)8). The authorities, which adopt such measures, are of various and different natures depending on the Member State concerned. The suspected individuals still benefit from the presumption of innocence.9 The merits of the case, in which such cooperation intervenes, have not yet been contradictorily examined by a judge; it has not yet been the object of a verdict. But if the procedure goes on, it will be later on; consequently, there will be further opportunities to control the concerned pre-trial measures. Besides, the cooperation at the pre-trial stage may be positive for the suspect (see investigation measures which can give positive results for the suspects and eventually exculpate him or her),10 so that, if the cooperation is refused, such refusal could also affect the interests of the suspected person.11 The specificity of the pre-trial cooperation is especially at stake in 2

In this respect, see all persons interviewed. See especially the European Convention on mutual assistance in criminal matters of 20 April 1959 (CETS No 30), its Protocols of 17 March 1978 (CETS 99) and 8 November 2001 (CETS 182), the Convention of 29 May 2000 on mutual assistance in criminal matters between the Member States of the EU ([2000] OJ C197/3) and its Protocol of 16 October 2001 ([2001] OJ C326/2). 4 [2008] OJ L350/72. 5 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters [2010] OJ C165/22. 6 [2005] OJ L196/45. 7 See especially European Convention on extradition of 13 December 1957 (CETS 24) and its Protocols of 15 October 1975 (CETS 86) and 17 March 1978 (CETS 98). See also Convention of 10 March 1995 on simplified extradition procedure between the Member States of the EU ([1995] OJ C 78/2) and Convention of 27 September 1996 relating to extradition between the Member States of the EU ([1996] OJ C 313/11). 8 [2002] OJ L190/1. 9 The practitioners S Guenter and T Lamiroy have especially insisted on that. 10 This has been quite clearly established in the Belgian law on international mutual legal assistance of 9 December 2004 (loi du 9 décembre 2004 sur l’entraide judiciaire internationale en matière pénale et modifiant l’Art 90ter du code d’instruction criminelle). Art 4, para 2 4° states that the execution of the request for mutual legal assistance is refused if the request concerns an offence which could be punished by death penalty in the requesting State, except if the execution of the request could reduce the risk of condemnation to death penalty if the request follows a demand emanating from the suspected individual him/herself (in this respect see also circulaire n°COL5/2005 du collège des procureurs généraux près les cours d’appel, 10 février 2005, 7). 11 Interview with S de Biolley. 3

948 Judicial Control in Cooperation in Criminal Matters the negotiations of the proposal of directive on the European Investigation Order (EIO). For some negotiators, considering the specificities of the pre-trial stage, an excess of judicial control is harmful and detrimental to the criminal procedure, especially because it causes delay and may result in impunity. In dealing with such sensitive issue, the need for rapidity is regularly invoked. The negotiations on the EIO raise the following questions: on what issues is it fair and legitimate to require judicial control in the executing State whereas the criminal procedure concerns and is led in the issuing State, how to avoid double checks/ reviews (in the executing state and in the issuing State, where the adjudicating judge will have the opportunity to check the executed measures).12 Although some mechanisms of the cooperation intervening after the trial can also serve the interest of the condemned person—think for instance about the transfer of sentenced persons—its nature is quite different. It concerns decisions, which have been adopted by authorities presenting a judicial nature in principle and which present a contradictory and consolidated character.13 But since it intervenes at a later stage of the procedure, the opportunities of controlling it are of course restricted.

2. The Objective or Level of the Control Another distinction should be made between the objective or level of judicial control. Regarding cooperation at the pre-trial stage, reference can be made to John Vervaele, who makes the difference between — the objective of the judicial control in the area of judicial investigation, which is: — warranting (ex ante or ex post) coercive measures; — the result of remedies (used by the defence or third parties) in relation to judicial investigative/prosecutorial acts/review procedure; — the overall control on the legality of judicial investigation by the trial judge; — the level of the judicial control in the area of judicial investigation, which is: — the gathering of evidence; — the transfer of evidence; — the use of evidence. Regarding cooperation concerning the trial stage, a distinction could be made between: — —

a control implying a re-examination of the whole case, including the substance of the decision (‘re-examen au fond’), including a control on the facts; a control on the regularity and legality of the procedure (control on the conditions and the circumstances in which the decision was adopted, such as control on the jurisdiction rules, equity of the procedure, etc).

3. The Owner of the Control This report focuses on judicial control—control that is performed by authorities having a ‘judicial nature’. 12 13

Interview with D Flore. Interview with G Vernimmen.

The Concept of ‘Judicial Control’: Preliminary Clarifications

949

Judicial authorities may be either European or national. Regarding judicial control performed at the European level, it is of course essential to bear in mind the role of the ECJ, especially considering the extension of its competence since the entry into force of the Lisbon Treaty.14 The ECJ has a crucial role to play, in identifying the outlines, extent and limits of the mutual recognition principle. In this respect, the ECJ’s case law on the ne bis in idem principle and on the EAW Framework Decision is quite essential.15 The Mantello case, in a way combines both: it concerns the interpretation of the mandatory ground for refusal provided for in Article 3(2) of the Framework Decision on the EAW, which is an expression of the ne bis in idem principle.16 The conclusions of the Advocate General Yves Bot17 are quite interesting regarding the extent of the control the executing authority is authorised to perform by the principle of mutual recognition.18 The origin of the case lies in an EAW issued by the Italian judicial authority against Mantello, an Italian citizen residing in Germany, as being a member of a criminal organisation involved in drug trafficking between January 2004 and November 2005. Considering that Mantello was sentenced in 2006 in Italy for possession of cocaine for the purpose of reselling in September 2005, and that no charges were brought at the time for his membership in a criminal organisation, due to strategic considerations, the Oberlandesgericht Stuttgart submitted two questions related to the interpretation of Article 3(2).19 Before examining these questions, the Advocate General, Y Bot, checked whether Article 3(2) also applies when the facts at the basis of the EAW were the object of a final judgment in the issuing State. Most of the Member States which intervened in the case—Czech Republic, Spain, France, Italy, Poland and the Netherlands—considered that Article 3(2) does not apply in such a case. According to them, it only applies when the facts at the basis of the EAW were the object of a final judgment in another Member State than the issuing State. According to these states, this is the only interpretation in line with the principle of mutual recognition, which implies that the executing authority has to enforce the decision of the other Member State and that the respect of ne bis in idem shouldn’t be double-checked by the issuing and the executing authorities but only by the issuing State. The Advocate General, Y Bot, did not share this view: he considered in his conclusions that the executing judicial authority should control the respect for ne bis in idem as a fundamental principle of EU law, that the mutual recognition and mutual trust do not prevent a double-check (both by the issuing 14 In this respect see A Weyembergh and V Ricci, ‘Le traité de Lisbonne et le contrôle juridictionnel sur le droit pénal européen’ in A Weyembergh, S Braum (eds), Quel contrôle juridictionnel pour l’espace pénal européen? (Brussels, Ed de l’Université Libre de Bruxelles, 2009) 227ff. 15 See especially A Weyembergh, V Ricci, ‘Les interactions dans le secteur de la coopération judiciaire: le mandat d’arrêt européen’ in G Giudicelli, S Manacorda, Cour de justice et justice pénale en Europe (Société de législation comparée, 2010) 203ff. 16 According to this provision: ‘The judicial authority of the Member State of execution (hereinafter executing judicial authority.) shall refuse to execute the European arrest warrant in the following cases: … 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State’. 17 Case C-261/09 Mantello (ECJ, 7 September 2010). 18 In this regard, see K Ligeti, ‘Judicial control in the system of mutual recognition—the ECJ’s Judgment in Mantello’ (2010) 4 Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 380–90. 19 The German judicial authority submitted the two following questions to the Court: should the term ‘same acts’ be understood according to the law of the issuing Member State, the executing Member State, or according to a Union-wide autonomous definition? And does the possession of cocaine for the purpose of reselling constitute the same act as membership in a criminal organisation for the application of Art 3(2), if the investigating authorities had sufficient evidence in respect of the membership in a criminal organisation, but did not prosecute the person for it due to tactical considerations?

950 Judicial Control in Cooperation in Criminal Matters and the executing Member States of the respect of ne bis in idem, that the executing judicial authority is not required to check ex officio the respect for ne bis in idem but, that if it has elements in its possession showing a problem in this respect, it should control it, and that the circumstance according to which the facts at the basis of the EAW were the object of a final judgment in the issuing state does not change anything to such duty. In its decision of 16 November 2010, the Court does not explicitly reject the application of Article 3(2) when the judgment was issued in the issuing State. However, we understand its decision as rejecting the conclusions of the Advocate General, ie as excluding, in the circumstances of the case, a double-check of the respect of ne bis in idem by the issuing and the executing authorities, as admitting only such a control by the issuing State and as demanding, of the executing authority, to trust the issuing authority. If our interpretation of the ECJ decision is correct, we do not see how to reconcile such case law with the mandatory nature of the ground for refusal based on Article 3(2) of the 2002 Framework Decision on the EAW. This case shows anyway very clearly the sensitiveness of the question of the extent of the control the executing authority is authorised to perform on the EAW by the principle of mutual recognition and the uneasiness of the Court when confronted with it.20 The role of the ECtHR and the impact of its case law on EU judicial cooperation should of course be taken in consideration as well. Such impact may be direct, as is clearly shown by the decision of 27 October 2011 in Stojkovic v France and Belgium,21 which is related to mutual legal assistance, or by the decision of 4 May 2010 in Stapleton v Ireland,22 related to the EAW. Its impact can also be indirect as it is shown by the consequences on mutual recognition and especially on the EAW of its case law on the state of prisons.23 The changes announced by the prospect of EU adhesion to the ECHR should not be neglected either.24 In this respect, and since the idea is to treat the EU as much as possible as a ‘normal’ contracting party to the Convention and avoid privileged treatment, the very sensitive question is to know to what extent the ECtHR will maintain the presumption of equivalence of protection as accepted in its Bosphorus decision of 30 June 200525 and to what extent such case law would benefit mutual recognition, mutual confidence underlying mutual recognition and reduction of controls implied by mutual recognition.26 In this regard, the above-mentioned question raised by the Mantello case 20 About the Mantello case (n 17), see especially A Weyembergh ‘Arrêts I.B. et Mantello: le mandat d’arrêt européen’ (2011) 177 Journal de droit européen 71ff. 21 Stojkovic v France and Belgium App no 25303/08 (ECtHR, 27 October 2011). See especially T Decaigny, K Weis, ‘Staat moet rechtmatigheid rogatoir verhoor in andere Staat nagaan’ (2011) 239 Juristenkrant 3. 22 App no 56588/07 (ECtHR, 4 May 2010). See also the case Pianese v Italy and the Netherlands App no 14929/08 (ECtHR, 15 June 2010 and especially 27 September 2011). 23 About its case law on the state of prisons in Poland: see Sikorski v Pologne App no 17599/05 (ECtHR, 22 October 2009); Orchowski v Pologne App no 17885/04 (ECtHR, 22 October 2009). On its impact on mutual recognition, see especially MJELR v Rettinger [2010] Irish Supreme Court IESC 45 www.supremecourt.ie/Judgments. nsf/1b0757edc371032e802572ea0061450e/fbef27b1ba9bc634802577690037d4af?OpenDocument; Commission, ‘Report from the commission to the European Parliament and the Council on the implementation since 2007 of the Council FD of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2011) 175 final. 24 See O De Schutter, ‘L’adhésion de l’Union européenne à la Convention européenne des droits de l’homme: feuille de route de la négociation’ (2010) 83 Revue Trimestrielle des Droits de l’Homme 535ff. 25 Bosphorus Airlines Hava Yolları Turizm ve Ticaret Anonim s irketi v Irlande App no 45036/98 (ECtHR, ‚ 30 June 2005). 26 F Tulkens, O De Schutter, ‘Confiance mutuelle et droits de l’homme. La Convention européenne des droits de l’homme et la transformation de l’intégration européenne’ in Mélanges en hommage à Michel Melchior (Brussels, Anthemis, 2010) 939ff.

The Concept of ‘Judicial Control’: Preliminary Clarifications

951

would be an excellent test. It would be very interesting to see the reaction of the ECtHR if it had to resolve such a case. In spite of the importance of the judicial control performed at the European levels, this report will mainly focus on the judicial control performed at the national level. The notion of national judicial authorities is confusing because of the different contents this notion receives in the different Member States. As it is especially stated in the explanatory reports of the 1957 and 1959 Extradition and MLA Conventions of the Council of Europe, and by the High Court of Justice, Queen’s Bench Division in its judgment dated 2 November 2011 in the Assange case, there is without doubt a considerable diversity within the EU area for justice as to the contents of such notion.27 It is interpreted more or less extensively. It can cover judges who adjudicate only or such judges and investigating judges (juges d’instruction) only or adjudicating judges, investigating judges and prosecuting magistrates.28 And what about the central authorities or Ministers of Justice,29 and even police authorities, which are considered as judicial authorities in some Member States in the context of judicial cooperation? Consequently, a distinction is to be made between: — — —

judicial control performed by an adjudicating judge; judicial control performed by a magistrate who is not an adjudicating judge; and judicial control performed by other authorities which are considered as judicial in the framework of judicial cooperation.30

According to the type of owner, the dimension of the control performed is of course quite different. A control exercised by an adjudicating judge, on the one hand, and a control exercised by a police authority, on the other, are difficult to compare.

4. The Nature of the Control Finally, a distinction according to the nature of the judicial control should be made as well: either the control is performed ex officio—automatic control—or upon request— non-automatic. The non-automatic control can result from a request of the defence, of the public prosecution service or of another interested party.31 At first sight, the mandatory grounds for refusal provided for in the European texts organising judicial cooperation seem to imply an automatic control, or control ex officio. However, such clear distinction needs to be tempered since, even in the case of mandatory grounds for refusal, the control to be performed can be excluded(!)32 or isn’t necessarily purely automatic or ex officio in the sense that it could be subordinated to elements in the possession of

27 High Court of Justice, Queen’s Bench Division, judgment of 2 November 2011, Julian Assange v Swedish Prosecution Authority (2011) EWHC 2849 (Admin), paras 36ff. 28 As in France or Belgium, for instance. 29 In this regard, see especially G Vernimmen, L Surano, A Weyembergh (eds), The Future of Mutual Recognition in Criminal Matters in the EU (Brussels, Edn de l’Université de Bruxelles, 2009). 30 Interview with D Flore. 31 See the remedies which should be provided to any interested party, according to some European texts. 32 See above, our understanding of Mantello (n 17).

952 Judicial Control in Cooperation in Criminal Matters the executing authorities showing a problem33 or revealing a manifest problem.34 In this regard, the elements brought by the defence are essential but the role of the executing authorities could also be more or less ‘proactive’.

B. THE LETTER OF THE EUROPEAN INSTRUMENTS ORGANISING COOPERATION IN CRIMINAL MATTERS

This second part of the study aims at examining if and how the European instruments organising cooperation in criminal matters deal with judicial control, the purpose being to see whether there has been an evolution from classical cooperation to mutual recognition. We will first look at the texts organising classical cooperation (section 1) and afterwards at those implementing the mutual recognition principle (section 2). For each type of instruments, we will examine the provisions, which directly concern judicial control, ie the organisation of remedies (a), the nature of the requesting/issuing and requested/executing authorities (b), the refusal grounds (c), and the ‘adaptation’ or ‘conversion/substitution’ clauses (d).

1. Judicial Control in the European Texts Organising Traditional Judicial Cooperation We will not perform an exhaustive examination of all the European texts organising classical judicial cooperation. The instruments which will particularly be examined are those which have been successful because ratified by all Member States of the EU or most of them and which are thus implemented in practice, namely the 1957 Convention on extradition, its protocols, the 1959 Convention on MLA and its protocols, the 1983 Convention on the transfer of sentenced persons and its protocol and the 1990 Convention on laundering, search, seizure and confiscation of the proceeds from crime. We will however also mention some ‘unsuccessful’ conventions, which were less applied in practice, especially the 1970 European Convention on the international validity of criminal judgments. (a) Organisation of Remedies Most of the conventions organising classical judicial cooperation are not prolix on the issue of judicial control. This is particularly true of the 1957 Convention on extradition, its protocols, and the 1959 Convention on MLA and its protocols, which do not include any provisions directly related to judicial control. They are for instance silent about judicial review on the basic measure or on the decision adopted in the requesting State and about judicial control on the decision to provide or not the requested cooperation. None of them requires that the decision on the requested cooperation should be adopted or controlled by a judicial authority. Of course, if they do not express any duty to realise judicial checks

33 See above Mantello (n 17), Opinion of General Advocate Bot: according to Y Bot, the executing judicial authority is not required to check ex officio the respect for ne bis in idem but, if it has elements in its possession showing a problem in this respect, it should control it. 34 In this regard, see below the control on the basis of the ground for refusal based on protection of human rights.

The Letter of the European Instruments Organising Cooperation

953

and controls, they do not either forbid the requested State/authorities to perform judicial checks and controls if they consider them as necessary. In the absence of specific provision in this respect, the issue of judicial control, the reviews and remedies are governed by the internal law of the requesting State and requested state and, in this regard, the situation in the Member State is marked by important differences. Whereas some Member States, such as the UK and Germany, organised a specific system of remedies against the execution of letters rogatory, other Member States apply the same system as the one provided for against their own national pre-trial decisions, with numerous variations in this regard as well. Other conventions, such as the 1983 Convention on the transfer of sentenced persons, or the 1990 Convention on laundering, search, seizure and confiscation of the proceeds from crime, contain some limited provisions related to judicial control. Both of these conventions contain a similar clause excluding review in the requested State of the decision, which forms the basis of the cooperation request. According to Article 13 of the 1983 Convention, The sentencing State alone shall have the right to decide on any application for review of the judgment.

According to Article 14, para 5, of the 1990 Convention, which belongs to the ‘international cooperation’ part of the Convention and concerns the execution of a confiscation, In the case of Article 13, paragraph 1.a [related to the enforcement of a confiscation order made by a Court of a requesting Party], the requesting Party alone shall have the right to decide on any application for review of the confiscation order.

Besides, according to para 3 of the same Article 14 of the 1990 Convention, [T]he requested Party shall be bound by the findings as to the facts in so far as they are stated in a conviction or judicial decision of the requesting Party or in so far as such conviction or judicial decision is implicitly based on them.

Article 5 of the 1990 Convention, which belongs to the ‘approximation’ part of the Convention, concerns the legal remedies to organise in order to preserve the rights of interested parties: Each Party shall adopt such legislative and other measures as may be necessary to ensure that interested parties affected by measures under Article 2 [concerning confiscation measures] and 3 [concerning investigative and provisional measures] shall have effective legal remedies in order to preserve their rights.

However, neither the 1983 Convention nor the 1990 one contain further provisions related to judicial control, as for instance a provision requiring that the decision on the requested cooperation be adopted or be reviewed by a judicial authority. Being an exception, the 1970 European Convention on the international validity of criminal judgments contains numerous and detailed provisions related to judicial control. This is quite in line with ‘its nature’: its text is quite long and complete, qualified by a lot of commentators as being too theoretical. This might be one of the reasons of its non-success.35 Some of its provisions are similar to some of the abovementioned

35 As of September 2011, 12 Member States only had ratified it. Some had ratified it only recently: for example Belgium ratified it on 30 June 2010 (see Memos 230/2010 and 230bis/2010) (about this late ratification,

954 Judicial Control in Cooperation in Criminal Matters provisions of the 1983 and 1990 Conventions. This is the case of its Article 10(2), stating that: The requesting State alone shall have the right to decide on any application for review of sentence

and of its Article 42, providing that: The requested State shall be bound by the findings as to the facts in so far as they are stated in the decision or in so far as it is impliedly based on them.

Besides the aforementioned clauses, Articles 37-38 are especially worth to mention since they enshrined the principle of enforcement of a sanction in the requested State by a judicial authority and more precisely by a Court (see below). (b) Nature of the Requesting and Requested Authorities Article 1 of the 1957 Convention on extradition provides for the extradition of all persons [A]gainst whom the competent authorities of the requesting Party are proceeding for an offence. [Emphasis added.]

The explanatory report on that convention stated in this respect that ‘The term competent authorities in the English text corresponds to autorités judiciaires in the French text36 and that these expressions cover the judiciary and the office of the Public Prosecutor, but exclude the police authorities’. Some provisions of the other previously mentioned conventions specify that the request for cooperation or the decision at the basis of the request for cooperation must be of a judicial nature. This is the case of the 1959 MLA Convention, Article 3, para 1 of which provides that: The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. [Emphasis added.]

However, according to its Article 24, it is left to the contracting parties to define what authorities they will, for the purpose of the Convention, deem judicial authorities and in this regard they have a wide margin of appreciation: in spite of the fact that according to the explanatory report, this provision aimed at allowing any country to define how it would construe ‘judicial authorities’ for the purposes of the Convention, so as to allow, if considered desirable, for the inclusion of ‘Public Prosecutors’,

it has been understood that these authorities may include authorities other than a judge, investigating judge or prosecutor, as police authorities. The 1990 Convention

see especially S Neveu, ‘La ratification de la Convention européenne sur la valeur internationale des jugements répressifs par la Belgique: un anachronisme?’ (2011-3) Revue de droit pénal et de criminologie 221ff). 36 According to this Art 1, in its French version ‘Les Parties contractantes s’engagent à se livrer réciproquement, selon les règles et sous les conditions déterminées par les articles suivants, les individus qui sont poursuivis pour une infraction ou recherchés aux fins d’exécution d’une peine ou d’une mesure de sûreté par les autorités judiciaires de la Partie requérante’.

The Letter of the European Instruments Organising Cooperation

955

on confiscation specifies also the nature of the decision at the basis of the request for cooperation but is much more precise since its Article 1(d) defines ‘confiscation’ as [A] penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.

As its title shows, the 1970 European Convention on the international validity of criminal judgments relates to European criminal judgments, which are defined by its Article 1(a) as [A]ny final decision delivered by a criminal court of a Contracting State as a result of criminal proceedings. [Emphasis added.]

Most of the above-mentioned ‘classical’ conventions do not require the required authorities to be judicial. However the 1970 European Convention on the international validity of criminal judgments does. Its Articles 37–38 enshrine the principle of enforcement of a sanction in the requested State by a judicial authority and more precisely by a court: A sanction imposed in the requesting State shall not be enforced in the requested State except by a decision of the court of the requested State. [Emphasis added.]

It states however that: Each Contracting State may … empower other authorities to take such decisions if the sanction to be enforced is only a fine or a confiscation and if these decisions are susceptible of appeal to a court.

The following Articles add other requirements such as the hearing of the person,37 the conditions of the enforcement38 and the possibility to launch an appeal against the decision on the enforcement.39 (c) Refusal Grounds Refusal grounds are numerous. It is interesting to take a look at these grounds of refusal and check whether and to what extent they imply a control by the requested State/authority on the basic measure or decision taken in the requesting State. Some grounds for refusal clearly imply a control of the basic decision adopted in the requesting State: it is the case of the grounds for refusal based on human rights (see for instance Article 3(2) of the 1957 Convention) and on proportionality (see for example Article 18(1)(c) of the 1990 Convention). On the contrary, some other grounds for refusal seem at first sight not to imply such control by the requested State. However, reflection shows that such conclusion

37 According to Art 39: ‘1. Before a court takes a decision upon a request for enforcement the sentenced person shall be given the opportunity to state his views. Upon application he shall be heard by the court either by letters rogatory or in person. A hearing in person must be granted following his express request to that effect.’ 38 According to Art 40: ‘1. The court, or in the cases referred to in Art 37, the authority empowered under the same Art, which is dealing with the case shall satisfy itself: that the sanction whose enforcement is requested was imposed in a European criminal judgment; that the requirements of Art 4 are met; that the condition laid down in Art 6.a is not fulfilled or should not preclude enforcement; that enforcement is not precluded by Art 7; that, in case of a judgment rendered in absentia or an ordonnance pénale the requirements of Section 3 of this part are met. 2. Each Contracting State may entrust to the court or the authority empowered under Art 37 the examination of other conditions of enforcement provided for in this Convention.’ 39 According to Art 41: ‘The judicial decisions taken in pursuance of the present section with respect to the requested enforcement and those taken on appeal from decisions by the administrative authority referred to in Art 37 shall be appealable.’

956 Judicial Control in Cooperation in Criminal Matters might be too extreme. A good example in this respect is the ground for refusal based on the fact that the requested party considers that execution of the request is likely to prejudice the sovereignty, security, ordre public or other essential interests of its country (see for instance Article 2(b) of the 1959 MLA Convention; Article 18(1)(b) of the 1990 Convention). The notion of ordre public could cover a control of respect of human rights and consequently could imply in the requested State a control of the basic decision adopted in the requesting State. Other grounds for refusal imply an examination of the facts but do not imply a control by the requested State on the basic decision taken in the requesting State. This is for instance the case of the ground for refusal based on the political nature of the offences (see for instance Article 2(a) of the 1959 MLA Convention; Article 18(1)(d) of the 1990 Convention) or based on the double criminality requirement (see for example Article 2 of the 1957 Extradition Convention). For other grounds for refusal, such as those based on the ne bis in idem principle (see for example Article 9 of the 1957 Extradition Convention, Article 18(1)(e) of the 1990 Convention) or of the territoriality clauses (see for example Article 18(1)(f) of the 1990 Convention), it is not so clear whether they imply or not a control by the requested State on the basic decision in the requesting state. Finally, some refusal grounds can give rise to control but only in the light of the requested Member State’s law. This is for example the case of the potential refusal ground provided for by Article 5(c) of the 1959 MLA Convention, which allows the parties to make the execution of letters rogatory for search or seizure of property dependent on the condition that execution of the letters rogatory is consistent with the law of the requested party. (d) ‘Adaptation’ or ‘Conversion/Substitution’ Clauses It is also interesting to examine the ‘adaptation’ or ‘conversion/substitution’ possibilities provided for by the above-mentioned conventions. Such possibilities are especially provided for by the conventions which concern the execution of sanctions, such as the 1970 European Convention on the international validity of criminal judgments (Articles 44 (substitution), 45 and 50 (adaptation))40 and by the 1983 Convention on the transfer of sentenced persons (see especially Article 9, which leaves the choice between adaptation and conversion). Such ‘adaptation’ to the law of the requested State or ‘conversion/substitution’ in the law of the requested State possibilities imply a control—if not a re-examination of the whole file, some examination of the file at least, in the light of the law of the requested party. Whereas the 1970 Convention provides that adaptation and substitution will in principle be performed by a judge (as the execution itself see Article 37), the 1983 Convention does not require that adaptation or conversion would be decided by a judicial authority or submitted to a judicial control. According to Article 9, the administering State has the choice either to continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or convert the sentence, through a judicial or administrative procedure, into a decision of that state, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.41

40 See also Arts 10 (substitution) and 11 (adaptation) European Convention on the Punishment of Road Traffic Offences [1964] CETS 52; Arts 11 (adaptation) and 19 (substitution) European Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders [1975] CETS no 051. 41 According to Art 6 Belgian law on the transfer of sentenced persons dated 23 May 1990 (Loi du 23 mai 1990 sur le transfèrement interétatique de personnes condamnées, la reprise et le transfert de la surveillance de

The Letter of the European Instruments Organising Cooperation

957

2. Judicial Control in the EU Instruments Organising Mutual Recognition Nine Framework Decisions aiming at implementing the mutual recognition principle have been adopted under the third pillar of the TEU, namely FD 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States,42 FD 2003/577/ JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence,43 FD 2005/214/JAI of 24 February 2005 on the application of the principle of mutual recognition to financial penalties,44 FD 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders,45 FD 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,46 FD 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions,47 FD 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty,48 FD 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,49 FD 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.50 During the negotiations of these instruments, discussions about judicial control have taken place. However, this does not mean that the Framework Decisions on mutual recognition which have been adopted so far in the framework of the third pillar of the personnes condamnées sous condition ou libérées sous condition ainsi que la reprise et le transfert de l’exécution de peines et de mesures privatives de liberté) (as revised by law dated 26 May 2005 and 17 May 2006), the penalty or the measure adopted abroad is directly and immediately executory in Belgium for the part which remains to be executed when the sentenced person is transferred in Belgium. According to Art 8, the transferred person must appear before the King’s Prosecutor (Procureur du Roi) within the 24 hours after arrival in prison. The King’s Prosecutor conducts an identity interrogation and, on the basis of the documents attesting the agreement of the states concerned and of the person, orders the immediate imprisonment. The hearing aims also at informing the transferred person. It is thus the public prosecution service which makes the foreign sentence executory. However, according to Art 10, if the penalty or the measure is not provided for by Belgian law for an offence of the same nature, the King’s Prosecutor must refer the case to the Tribunal de 1ère instance (Tribunal of first instance) and request the adaptation of the penalty or of the measure. Since the King’s Prosecutor is the only one who has the right of initiative in this respect, he must refer the case to the Tribunal in case of doubts (see Circulaire n° COL 8/2010 du Ministère de la Justice et du Collège des Procureurs généraux près les Cours d’appel, 11 mai 2010). In order to assess the need for adaptation and to decide on such adaptation, the facts declared in the foreign judgment (eventually together with the circumstances referred to in the documents referred to in the judgment) (Cass 3 March 2007 (P 07 0003.N)) are requalified in Belgian law in order to identify in abstracto the maximum penalty applicable in Belgian law. The requalification is a question of facts on which the tribunal will have to decide without questioning and examining the question of the criminal liability of the transferred person. The adaptation procedure is limited to the penalty fixation. The Tribunal has to take its decision within the month. Its decision is immediately executory but opened for the usual remedies. 42 43 44 45 46 47 48 49 50

[2002] OJ L190/1. [2005] OJ L196/45. [2005] OJ L76/16. [2008] OJ L328. [2008] OJ L220/32. [2008] OJ L337/102. [2008] OJ L327/27. [2008] OJ L350/72. [2009] OJ L294/20.

958 Judicial Control in Cooperation in Criminal Matters TEU are much more prolix on the subject than the European conventions organising classical judicial cooperation. For instance, during the negotiations of the EAW, much was said about judicial controls. But, as we will see later, the Framework Decision on the EAW doesn’t contain any provisions directly related to judicial control.51 The subsequent Framework Decisions on mutual recognition contain some provisions directly related to judicial control but these provisions remain general, vague and limited. As it will be seen in the further developments, a serious lack of consistency between the various Framework Decisions is also to be noticed in some respect.52 The issue of judicial control and the need to realise a right balance in this regard seem to have gained a growing importance since the entry into force of the Treaty of Lisbon. This is the result of various elements. The first one is the wording of the treaty itself, which speaks about the principle of mutual recognition of judgments and judicial decisions (Article 82(1) TFEU).53 Such wording explains the importance given by some Member States to the judicial nature of issuing authorities and their strong requirements in this regard (see below). Beyond the terms of the treaty, the new role of the European Parliament as colegislator might be a second element, which could increase the importance of the issue of judicial control. The European Parliament might have clear requests in this regard and might reject the generality, vagueness and limitations of the clauses adopted so far.54 Since the entry into force of the Lisbon Treaty, two proposals of directive have been introduced ie the directive on the European Protection Order55 and the directive regarding the European Investigation Order in criminal matters.56 So far, the negotiations of both initiatives have been quite hard. At the time of writing this contribution none of them have resulted yet in a final agreement in the Council.57 The first one on the European Protection Order has been confronted with discussions concerning its legal basis.58 Some difficulties encountered in negotiating the second one, ie the proposal of Directive on the European Investigation Order, are narrowly linked to the issue of judicial control and are thus interesting for the 51

See Interview with D Flore. See for example the differences between the provisions related to the executing authorities or the differences related to some grounds for refusal (as the one based on the protection of human rights). 53 The French version in is line with the English one, namely: ‘[L]e principe de la reconnaissance mutuelle des jugements et des décisions judiciaires’, but the German version seems to go even further because it speaks about mutual recognition of: ‘gerichtlicher Urteiler und Entscheidungen’. 54 Its position on the proposal of a directive regarding the European Investigation Order in criminal matters will be quite interesting in this regard. In October 2010, a rapporteur was designated for the European Parliament: Mr Nuno Melo, but we still have to wait for his report, which was to have been presented in 2012. Such report constitutes a sort of test for the EP. Its position on the EIO will be essential and will show whether it is able to defend a balanced position between the pros mutual recognition and the pros procedural rights. 55 This initiative aims at organising the mutual recognition and execution of protection measures adopted in one Member State against a person causing danger by another Member State where the protected person moves. 56 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters [2010] OJ C165/22. 57 Concerning the proposal of directive on the EPO, an agreement should soon be adopted within the Council. A partial general approach on the 18 first arts of the proposal of directive on the EIO was reached at the Council of 9 and 10 June 2011 (Council, doc 11735/11 [2011] 2010/0817 (COD)). 58 The initial legal basis for this proposal lied in Art 82 TFEU related to mutual recognition in criminal matters, it quickly emerges that this initiative’s nature was far more ambiguous considering that, in numerous Member State, such protection measures are of a civil nature and not of a criminal nature. It thus quickly emerges that the proposal concerns at the least both mutual recognition in civil law and in penal law. This mixed nature revealed itself quite problematic if the idea is to avoid any step backwards compared with the current legal framework because mutual recognition in the civil field is currently far more automatic than in the criminal sector. 52

The Letter of the European Instruments Organising Cooperation

959

topic of this report. This proposal is quite essential for the future of mutual recognition in the pre-trial stage: it aims at implementing the new approach called for by the Stockholm Programme, ie replacing the existing framework for the gathering of evidence—including the Framework Decisions on freezing and on the European Evidence Warrant (EEW), which is too fragmented and complicated, and setting up a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition. As the negotiations lead so far show, it will be particularly difficult to combine, on the one hand, the setting up of a single legal regime for the obtaining of evidence within the EU and, on the other hand, the need to avoid any step backward compared with the current legal framework. As we will see, among the questions debated so far, some are narrowly linked to the issue of judicial control. From a comparison between the texts organising classical cooperation and the instruments implementing the mutual recognition principles it results that the difference from the point of view of judicial control is not as important as we could think it would be. (a) Organisation of Remedies During the negotiations of the Framework Decision on the EAW, the question of the insertion of specific provisions related to remedies (obligation or prohibition to organise remedies) was heavily debated and it is voluntarily that the negotiators opted for the silence of the Framework Decision, leaving the choice to the Member States in this regard. As a consequence, the Framework Decision on the EAW doesn’t contain any provisions directly related to judicial control and, even if the setting of a deadline of 60 days for the final decision on the execution, should have had a limitative impact on the remedies, important variations exist among the Member States in this respect.59 Two Framework Decisions on mutual recognition only, ie the Framework Decision on freezing60 and on the EEW,61 contain clauses requiring the organisation of remedy in 59

See Interview with D Flore. See its Art 11: ‘1. Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies without suspensive effect against a freezing order executed pursuant to Art 5, in order to preserve their legitimate interests; the action shall be brought before a court in the issuing State or in the executing State in accordance with the national law of each. 2. The substantive reasons for issuing the freezing order can be challenged only in an action brought before a court in the issuing State. 3. If the action is brought in the executing State, the judicial authority of the issuing State shall be informed thereof and of the grounds of the action, so that it can submit the arguments that it deems necessary. It shall be informed of the outcome of the action. 4. The issuing and executing States shall take the necessary measures to facilitate the exercise of the right to bring an action mentioned in paragraph 1, in particular by providing adequate information to interested parties. 5. The issuing State shall ensure that any time limits for bringing an action mentioned in paragraph 1 are applied in a way that guarantees the possibility of an effective legal remedy for the interested parties.’ 61 See its Art 18: ‘1. Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against the recognition and execution of an EEW pursuant to Art 11, in order to preserve their legitimate interests. Member States may limit the legal remedies provided for in this paragraph to cases in which the EEW is executed using coercive measures. The action shall be brought before a court in the executing State in accordance with the law of that State. 2. The substantive reasons for issuing the EEW, including whether the conditions established in Art 7 have been met, may be challenged only in an action brought before a court in the issuing State. The issuing State shall ensure the applicability of legal remedies which are available in a comparable domestic case. 3. Member States shall ensure that any time limits for bringing an action mentioned in paragraphs 1 and 2 are applied in a way that guarantees the possibility of an effective legal remedy for interested parties. 4. If the action is brought in the executing State, the judicial authority of the issuing State shall be informed thereof and of the grounds of the action, so that it can submit the arguments that it deems necessary. It shall be informed of the outcome of the action. 5. The issuing and executing authorities shall take the necessary measures to facilitate the exercise of the right to bring actions mentioned in paragraphs 1 60

960 Judicial Control in Cooperation in Criminal Matters order to preserve the rights of interested parties. They contain some common features but, in some respects, their wording differs. For example, whereas Article 11 of the freezing Framework Decision mentions an action which shall be brought before a court in the issuing State or in the executing State in accordance with the national law of each, Article 18 of the EEW Framework Decision only mentions an action which shall be brought before a court in the executing State in accordance with the law of that state. Such clauses are not new: similar clauses already existed in some of the European conventions organising classical cooperation also (see Article 5 of the 1990 Convention). However, the mutual recognition texts contain more precise requirements than the classical conventions. And, according to both Article 11 of the freezing Framework Decision and Article 18 of the EEW Framework Decision, the substantive reasons for issuing a freezing order or a EEW may only be challenged in the issuing State, and not in the executing State. For the rest, five Framework Decisions of mutual recognition contain a clear provision excluding a review in the executing State of the basic decisions adopted in the issuing State. For instance, according to Article 9(2) of the Framework Decision on confiscation orders, ‘Only the issuing State may determine any application for review of the confiscation order.’ The four other Framework Decisions containing a similar provision are the Framework Decision on financial penalties,62 the Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings,63 the Framework Decision on judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union64 and the Framework Decision on judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.65 A sixth Framework Decision, namely the Framework Decision concerning decisions on supervision measures as an alternative to provisional detention contains a clause which doesn’t exclude as clearly as the previous ones a review in the executing State of the basic decisions adopted in the issuing State but which could be interpreted as such.66 As seen previously (see above), such exclusion clauses are not specific to mutual recognition instruments since similar provisions already existed in some conventions organising classical judicial cooperation (see especially Article 14(5) of the 1990 Convention on confiscation and Article 13 of the 1983 Convention on transfer of sentenced persons). But they are much

and 2, in particular by providing interested parties with relevant and adequate information. 6. The executing State may suspend the transfer of objects, documents and data pending the outcome of a legal remedy.’ 62 See its Art 8 para 2: ‘Without prejudice to the Article 7, only the issuing State may determine any application for review of the decision’. 63 See its Art 3: ‘3. The taking into account of previous convictions handed down in other Member States, as provided for in paragraph 1, shall not have the effect of interfering with, revoking or reviewing previous convictions or any decision relating to their execution by the Member State conducting the new proceedings. 4. In accordance with paragraph 3, paragraph 1 shall not apply to the extent that, had the previous conviction been a national conviction of the Member State conducting the new proceedings, the taking into account of the previous conviction would, according to the national law of that Member State, have had the effect of interfering with, revoking or reviewing the previous conviction or any decision relating to its execution.’ 64 See its Art 19 para 2: ‘Only the issuing State may decide on applications for review of the judgment imposing the sentence to be enforced under this FD’. 65 See its Art 19 para 2: ‘Only the issuing State may decide on applications for review of the judgment which forms the basis for the probation measures or alternative sanctions to be supervised under this FD’. 66 See its Art 18: ‘1. Without prejudice to Art 3, the competent authority in the issuing State shall have jurisdiction to take all subsequent decisions relating to a decision on supervision measures. Such subsequent decisions include notably: (a) renewal, review and withdrawal of the decision on supervision measures.’

The Letter of the European Instruments Organising Cooperation

961

more generalised in the Framework Decisions of mutual recognition than in the traditional European conventions. However, it does not mean that in the case of the texts, which do not contain such an exclusion clause (such as the 1957 Convention on extradition and the 1959 Convention on mutual legal assistance), such review did exist. Neither the 1957 Convention nor the 1959 Convention expressly organised such a review. And it seems that in national law such review did not exist or were at the least not generalised. (b) Nature of the Issuing and Executing Authorities All Framework Decisions of mutual recognition contain specifications related to the nature of the issuing authorities. The scope of most Framework Decisions is limited to the recognition and execution of judicial decisions. Three of them are only applicable to judicial decisions or decisions adopted by judicial authorities: this is the case of the Framework Decision on the EAW,67 the Framework Decision on freezing68 and the Framework Decision on the EEW.69 Regarding the EAW, the judgment dated 2 November 2011 of the High Court of Justice, Queen’s Bench Division in the Assange case is quite interesting as to the interpretation of the notion of judicial authorities: it accepted a broader interpretation than the one given in common law and accepted to consider a Prosecutor as being a judicial authority under Article 6 of the EAW Framework Decision,70 but not a ministry of justice.71 However, it underlined that the nature of the issuing authority could have an impact on the intensity of the checks performed by the executing authorities and that more intense scrutiny is required where a warrant is issued by a ‘judicial authority’ who is not a judge: However, it is clear that in the present state of development of the common area for justice, mutual confidence in the common area for justice and the operation of the EAW will not be advanced

67 Art 1 of the Council FD 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States—Statements made by certain Member States on the adoption of the FD on the EAW [2002] OJ L190/1 defines the EAW as a ‘judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’. See also its Art 6 para 1 according to which ‘The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State’. 68 Art 1 FD on EAW 2002/584/JHA on freezing limits its scope to the recognition and execution of ‘a freezing order issued by a judicial authority of another Member State in the framework of criminal proceedings’ and its Art 2 defines the ‘issuing State’ as ‘the Member State in which a judicial authority, as defined in the national law of the issuing State, has made, validated or in any way confirmed a freezing order in the framework of criminal proceedings’. 69 Council FD 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 [2008] OJ L350/72 defines the EEW as a judicial decision issued by a competent authority of a Member State with a view to obtaining objects, documents and data from another Member State for use in proceedings referred to in Art 5’ (Art 1 para 1) and the ‘issuing authority’ as (i) a judge, a court, an investigating magistrate, a public prosecutor (ii) any other judicial authority as defined by the issuing state and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in cross-border cases in accordance with national law’ (Art 2 para c). 70 See para 41: ‘[I]t cannot be said that the term judicial applies only to a judge who adjudicates. The differing European traditions recognise that others, including prosecutors, can be included within that term for various purposes. It is therefore entirely consistent with the principle of mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Art 6 (of the FD). To do otherwise would be to construe the word “judicial” out of context and look at it simply through the eyes of a common law judge, who would not consider a prosecutor as having a judicial position or acting as a judicial authority.’ 71 See paras 46 and 47.

962 Judicial Control in Cooperation in Criminal Matters unless the courts of the executing state scrutinise requests for surrender under the EAW with the intensity required by the circumstances of each case. Failure by courts in the executing state to accord such scrutiny as the circumstances of each case require can risk undermining public confidence in the operation of the common area for justice and in particular the system for the operation of the EAW72 … [M]ore intense scrutiny is required … where a warrant is issued by a ‘judicial authority’ who is not a judge.73 … It would therefore be entirely in conformity with the principles of mutual recognition and the promotion of mutual confidence between the judges and citizens in the several Member States to recognise that circumstances can arise in respect of an EAW issued by a prosecutor as distinct from a judge where it is necessary for a Court to accord more intense scrutiny to such a warrant. Mutual confidence, particularly the confidence of citizens in the operation of the EAW system, is not enhanced by according to such an EAW the deference that would ordinarily be accorded to an EAW issued by a judge who is bound to take into account the interests of both parties to the proceedings.74

Three other Framework Decisions are more specific and apply only to decisions adopted by a Court. It is the case of the Framework Decision on confiscation which limits its scope to recognition and execution of confiscation orders issued by a court competent in criminal matters of another Member State (Article 1(1)) and which defines the ‘issuing State’ as [T]he Member State in which a court has issued a confiscation order within the framework of criminal proceedings. [Article 2]

It is also the case of the Framework Decision on taking account of convictions the scope of which is restricted to convictions defined as [A]ny final decision of a criminal court establishing guilt of a criminal offence. [Article 2]

and of the Framework Decision on judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty which applies to judgments, defined as [A] final decision or order of a court of the issuing State imposing a sentence on a natural person. [Article 1a)]

A minority of Framework Decisions of mutual recognition do not limit their scope to judicial decisions, but restrict it somehow: this is the case of the Framework Decision on financial penalties,75 of the Framework Decision on judgments and probation decisions76

72

Para 17. Para 19. 74 Para 50. 75 It applies to ‘final decisions requiring a financial penalty to be paid by a natural or legal person where the decision was made by: (i) a court of the issuing State in respect of a criminal offence under the law of the issuing State; (ii) an authority of the issuing State other than a court in respect of a criminal offence under the law of the issuing State, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters; (iii) an authority of the issuing State other than a court in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters; (iv) a court having jurisdiction in particular in criminal matters, where the decision was made regarding a decision as referred to in point (iii)’ (Art 1 para a)). 76 It concerns judgments—defined as ‘a final decision or order of a court of the issuing State, establishing that a natural person has committed a criminal offence and imposing: (a) a custodial sentence or measure involving deprivation of liberty, if a conditional release has been granted on the basis of that judgment or by a subsequent probation decision; (b) a suspended sentence; (c) a conditional sentence; (d) an alternative sanction’ (Art 2(1)), but also probation decisions, ie ‘a judgment or a final decision of a competent authority of the issuing State 73

The Letter of the European Instruments Organising Cooperation

963

and of the Framework Decision on decisions on supervision measures as an alternative to provisional detention.77 Consequently to the wording of the Lisbon Treaty, which speaks about the principle of mutual recognition of judgments and judicial decisions (Article 82(1) TFEU), one of the questions heavily debated during the negotiations of the European Investigation Order precisely concerns the nature of the issuing authorities. In the original proposal for a directive, the European Investigation Order itself was defined as a ‘judicial decision’78 and the definition of the issuing authorities included both ‘a judge, a court, an investigating magistrate or a public prosecutor competent in the case concerned’ and ‘any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings with competence to order the gathering of evidence in accordance with national law’.79 Such a solution was in line with the current MLA regime (see above) but from the beginning of the discussions, several delegations indicated that they could not accept an obligation to recognise EIOs issued by authorities other than a judge, a court, an investigating magistrate or a public prosecutor. Others, like the UK, insisted on the contrary on the fact that measures covered by the directive may be decided by other authorities according to their national law and that these authorities should therefore be able to issue a European Investigation Order. The Belgian Presidency tried to reconcile both points of views through extending the notion of issuing authorities to other authorities by means of a validation procedure. As a result, according to the general approach reached in June 2011 on Article 1 of the proposal, the European Investigation Order is defined as ‘a judicial decision issued or validated by a judicial authority’ and, according to Article 5a, para 3, where a European Investigation Order is issued by any other judicial authority than a judge, a court, an investigating magistrate or a public prosecutor, ‘the European Investigation Order shall be validated, after examination of its conformity with the conditions for issuing an European Investigation Order under this Directive, by a judge, court, public prosecutor or investigating magistrate before it is transmitted to the executing authority’. As a consequence, the issuing authorities become ‘more judicial’ than the requesting authorities were in the MLA regime. Regarding the nature of the issuing authorities, the European Parliament’s position could be of essential importance. It’s a safe bet that it will have specific requirements in this regard. As some Member States had already emphasised during the negotiations within the Council, there are major differences between the Member States regarding the authorities competent to issue some investigative measures. Whereas in some Member States, it is a court that is competent for some sensitive measures, in others it will be a public prosecutor. The Member States with higher standards, namely where a given investigative measure resort to the competence of a court or a judge, should recognise and execute a European Investigation Order delivered by a public

taken on the basis of such judgment: (a) granting a conditional release; or (b) imposing probation measures’ (Art 2(5)). 77 It concerns ‘decision on supervision measures’, meaning an ‘enforceable decision taken in the course of criminal proceedings by a competent authority of the issuing State in accordance with its national law and procedures and imposing on a natural person, as an alternative to provisional detention, one or more supervision measures’ (Art 4 a)). 78 Art 1 of the initial proposal for a directive. 79 Art 2 of the initial proposal for a directive.

964 Judicial Control in Cooperation in Criminal Matters prosecutor. Besides, if the issuing authority is the police, a validation procedure should take place but the whole question is then to know what does exactly the validation procedure imply. Regarding these last issues, one can refer to the opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order, according to which: The existing jurisprudence of the ECtHR does not generally require prior judicial authorisation for the use of most intrusive investigatory measures, cross-border investigations are different with respect to the interaction of two possibly incompatible legal systems. As such investigations often give rise to fundamental rights concerns, and therefore it may be necessary to require mandatory validation by a judge in the issuing state rather than a prosecutor or investigating magistrate. Specific procedures should be put in place for such a validation in order to avoid unnecessary delays. It is submitted that this may be necessary given the ‘current lack of comparability of existing standards in criminal procedural law between Member States’.80

Regarding the nature of the authorities competent to take the decision on the requested cooperation, the general idea is that mutual recognition implies a ‘judicialisation’ of the cooperation, ie the suppression or, at least, a reduction of the executive power’s role. The Framework Decision on the EAW is the most representative in this regard. It explicitly requires that the executing authorities be of a judicial nature (Article 6(2) FD on EAW) and this is quite an important change compared to the extradition regime. But of course, it remains to be seen if the Member States have correctly implemented the judicialisation idea. From the evaluation reports on the EAW,81 it appears that most Member States implemented the judicialisation of procedure, but that a few failed to do so. Denmark, for instance, has designated the Minister of Justice, in his capacity as chief of the public prosecution department and of the judicial authority, as issuing and executing authority. Another example is Germany, where the federal Minister of Justice and the ministers of the Länder have been identified as competent judicial authorities. The idea of judicialisation should thus be nuanced in this regard and checked at the internal level. The Belgian example is quite interesting in this respect. Regarding extradition and the EAW, Belgium fully implemented the judicialisation idea, organising a complete system of judicial review on the decision to recognise and execute. Such choice resulted in a clear extension of the judicial control on the EAW procedure in comparison with the classical extradition procedure.82 We will come back to this later on in the second part of the study (see below). Another Framework Decision, the one on freezing orders, also explicitly requires that the executing authorities be of a judicial nature. But most of the other Framework Decisions only speak about ‘competent authorities in the executing State’ without any further requirement related to their nature (see Framework Decisions on financial penalties, on confiscation, on judgments in criminal matters imposing custodial sentences or measures

80 Opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order, 14 February 2011, 12–13. 81 In this regard see for example those realised by the European Commission (see especially Commission, ‘Report from the Commission based on Art 34 of the Council FD of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2005) 63 SEC (2005) 267; Commission, ‘Report from the Commission on the implementation since 2005 of the Council FD of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’ COM (2007) 407 SEC (2007) 979); Council Final report no 8302/4/09 of 28 May 2009 on the fourth round of mutual evaluations—the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States. 82 Interview with D Flore.

The Letter of the European Instruments Organising Cooperation

965

involving deprivation of liberty and on EEW). The Framework Decision on judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions and the Framework Decision on decisions on supervision measures as an alternative to provisional detention also speak about ‘competent authorities in the executing State’ but specify that ‘Member States may designate non-judicial authorities as the competent authorities for taking decisions under this Framework Decision, provided that such authorities have competence for taking decisions of a similar nature under their national law and procedures’ (respectively Articles 3(2) and 6(2)). Besides this specification, the Framework Decision on judgments and probation decisions provides that if some subsequent decisions—ie the revocation of the suspension of the execution of the judgment or the revocation of the decision on conditional release; and the imposition of a custodial sentence or measure involving deprivation of liberty in case of an alternative sanction or conditional sentence—are taken by a competent authority other than a court, the Member States shall ensure that, upon request of the person concerned, such decision may be reviewed by a court or by another independent court-like body (Article 3(3)). And the Framework Decision on supervision measures as an alternative to provisional detention requires that subsequent decisions relating to a decision on supervision measures, which consist in issuing an arrest warrant or any other enforceable judicial decision having the same effect, shall be taken by a competent judicial authority (Article 6 (3)). (c) Refusal Grounds None of the instruments organising mutual recognition in criminal matters adopted so far organise an automatic recognition and execution of decisions adopted in other Member States. Consequently, mutual recognition has not resulted as such in the suppression of an exequatur procedure.83 One could at least consider that the mutual recognition principle has resulted in a reduction or lightening of an exequatur procedure. Some grounds for refusal (mandatory or not) have been maintained. Mutual recognition maintains thus the existence of control in the executing State. However, mutual recognition has resulted in a decrease of grounds for refusal and, consequently a decrease of opportunities allowing an examination of the facts at the basis of the cases and a control of the initial decision at the basis of the request. In this regard, the abolition of the classical ground for refusal based on the political nature of the offence and the reduction of the double criminality requirement are particularly representative. One could also mention the rephrasing of the classical refusal ground of Article 2(b) of the 1959 MLA Convention and in Article 18(1)(d) of the 1990 Convention (see above). As reworded in the Framework Decision on EEW and in the proposal for a directive on the European Investigation Order as agreed by the Council in its general approach in June 2011, it is based on the fact that the execution of the EEW or European Investigation Order would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities (Article 13(1)(g) FD EEW and Article 10(1)(b) of the proposal for a directive on the European Investigation Order). Consequently, its scope of application is narrower than its previous version in the conventions of the Council of Europe. The new

83 Defined as a procedure allowing to declare executory in a state a judgment adopted in another state or an arbritral decision.

966 Judicial Control in Cooperation in Criminal Matters clause no longer mentions ordre public, so that it does not imply a control on the decision to execute (on the basis of human rights for example). It is not so clear whether some of the remaining grounds for refusal imply or not a control by the executing State on the decision to be executed. It is especially the case of the territoriality clause, which can be considered as implying either an evaluation of the legitimacy of the intervention of the issuing State or, at the least, an assessment of the legitimacy of the requested cooperation.84 It is also the case of the grounds for refusal based on the ne bis in idem principle. As the above-mentioned Mantello case shows it, the outlines of this ground for refusal and the extent and limits of the control by the executing authority it implies are not easy to identify. According to the opinion of Advocate General Yves Bot, it implies a control of the decision to execute but the executing judicial authority is not required to check ex officio the respect of ne bis in idem: it is only if he has elements in its possession showing a problem in this respect that it should control it. This opinion was not followed by the ECJ. In its decision dated 16 November 2010, and in spite of the fact that this is a mandatory ground for refusal, the Court excluded, in the circumstances of the case, a double check of the respect of ne bis in idem by the issuing and the executing authorities; it admitted only such a control by the issuing State and required of the executing authority to trust the issuing authority (see above). However, the changes brought by the mutual recognition instruments shouldn’t be overestimated. This is especially true if we think about the two grounds for refusal, which imply a control of the basic decision adopted in the issuing State, namely the grounds for refusal based on human rights and on proportionality. First, as to the refusal ground based on human rights, its application does not necessarily imply a control on the decision to be recognised and executed but it may imply such control. It depends on the kind of human rights violations involved.85 It implies a control on the decision to be recognised and executed if it concerns the manner in which evidence was collected for instance. But it does not imply such control if it deals for instance with discriminatory treatments in prison or state of prisons in the issuing Member State. It is true that one EU instrument on mutual recognition only provides for an explicit ground for refusal based on human rights: the Framework Decision on financial penalties.86 None of the other adopted instruments on mutual recognition explicitly provide for a ground for refusal based on human rights. However all of them mention expressly the duty to respect human rights. The Framework Decision on the EAW and the Framework Decision on freezing mention that they shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 TEU (Article 1(3) of the Framework Decision on EAW and Article 1 of the Framework Decision on freezing of property or evidence) but none of them provide for an explicit ground for refusal based on a eventual violation of human rights. The Framework Decisions on confiscation and on EEW have the same wording but add that any obligations incumbent on judicial authorities in this respect shall remain unaffected (Article 1(2) of the Framework Decision on confiscation and Article 1(3) Framework Decision on EEW). This last wording was also

84

See Interview with D Flore. See interview with G Vernimmen. 86 Art 16(1) provides that ‘Each Member State may, where the Certificate referred to in Art 2 gives rise to an issue that fundamental rights or fundamental legal principles as enshrined in Art 6 TEU may have been infringed, oppose the recognition and the execution of decisions. The procedure referred to in Art 4(3) shall apply’. 85

The Letter of the European Instruments Organising Cooperation

967

the one selected by the Council in its general approach of June 2011 on the proposal for a Directive on the European Investigation Order (see Article 1(3)). But, again it’s a safe bet that the European Parliament will require the inclusion of an explicit ground for refusal based on human rights (see below). Given these provisions and given the EU Member States general obligation to respect fundamental rights, numerous transposing laws do explicitly provide for such ground for refusal (see below). The question of the legality or conformity with the mutual recognition principle of such clauses is of course extremely sensitive, so as the question to know whether the Commission would take the risk of launching an infringement procedure by the Commission against the Member States which have such a ground of refusal in their transposing laws after the transitional period of five years after the entry into force of the Lisbon treaty.87 If it dared to launch such procedure, the decision by the ECJ would in this respect be extremely interesting. There are some striking cases where the competent executing authorities have refused the execution of an EAW on the basis of a human rights clause.88 However, generally speaking, although some executing authorities perform serious checks,89 the use of such clauses remains relatively marginal: the executing authorities of the Member States tend to use the ground for refusal based on human rights with much parcimony. In most cases, the ‘par défaut’ position is that one may trust the other Member States’ authorities in this respect.90 Second, as regards the ground for refusal based on proportionality, none of the Framework Decisions of mutual recognition adopted contain such ground for refusal. However, whereas they do not strictly amount to a ground for refusal based on proportionality, a few provisions are to be mentioned, especially Article 4 of the Framework Decision on financial penalties which provide for a non-binding ground for refusal if the financial penalty is below EUR 70 or equivalent to that amount and Article 7 of the Framework Decision on EEW according to which a EEW may only be issued if obtaining the objects, documents or data sought is necessary and proportionate for the purpose of proceedings (Article 7). The issue of proportionality has come to the attention, especially because the practical implementation of the EAW revealed some problems in this respect, linked to the fact that all judicial authorities do not have the same vision as to the cases where it is appropriate to issue an EAW.91 The silence of the Framework Decision in this respect 87 According to Art 10 of Protocol 10 on transitional measures (annexed to the Lisbon Treaty), the full set of competences of the ECJ—including the infringement procedure—will apply to the ‘old’ instruments five years after the entry into force of the Lisbon Treaty. Some (see for instance Tweede Kamer der Staten-generaal, vergaderjaar 2011-2012, 22 112, nr 1244) see a change of attitude of the Commission concerning such refusal grounds based on violation of human rights, especially Commission, Green Paper: ‘Strengthening mutual trust in the European judicial area—A Green Paper on the application of EU criminal justice legislation in the field of detention’ COM (2011) 327 final. 88 See for instance District Court of Amsterdam (1 juillet 2005, AT 8580), Cour d’Appel de Pau (n° 94/2008 du 7 mars 2008), Court of Appeal of Sof ia (Aff 205/2007 du 8 mars 2007), Italian Corte di cassazione (no17632 du 3 mai 2007), Irish Supreme Court (arrêt Krasnovas du 24 novembre 2006), Chambre de mise en accusation de Bruxelles (8 Dec 2006, Oberlandsgericht Celle 20 mai 2008—1 Ars 21/08), Irish Supreme Court, case MJELR v Rettinger (n 23) www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/fbef27b1ba9bc6348 02577690037d4af?OpenDocument). 89 See below the controls performed by executing authorities in the UK or the Netherlands. 90 See Vernimmen, Surano, Weyembergh (eds) (n 29) esp 557–58. 91 In this regard, see esp Council Final report no 8302/4/09 of 28 May 2009 on the fourth round of mutual evaluations—The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States: ‘The expert teams widely considered that, in principle, the proportionality test was the right approach and that some provisions, guidelines or other measures should be put in place at European

968 Judicial Control in Cooperation in Criminal Matters did not prevent some executing authorities to realise a control of the proportionality of the request when they considered or feared that the EAW they were confronted with had been issued for crimes they considered as petty.92 The question was raised whether it would not be appropriate to revise the Framework Decision on EAW in order to provide for a proportionality requirement at the EU level. For the time being, a revision of the Framework Decision on EAW does not seem to be on the agenda93 but amendments to the ‘European Handbook on how to issue a EAW’ were brought in respect of proportionality. The amended handbook now sets out the factors to be assessed when issuing an EAW and possible alternatives to be considered before issuing an EAW.94 The issue of the proportionality requirement was heavily debated in the framework of the negotiations on the proposal of Directive on European Investigation Order. Discussions on how to formulate such requirements and on the criteria to take into consideration were pretty tough.95 The question of whether it is the issuing authority or the executing authority which should implement such control is quite sensitive as well. Most of the Member States were of the opinion that proportionality should only be checked by the issuing authority, but a minority of Member States (especially the UK and Germany) wished to empower the executing authorities to check proportionality and to refuse the recognition/execution if they consider the European Investigation Order to be disproportionate! If this last solution had been chosen—even for some measures only—it would of course have implied some sort of control on the initial decision. As agreed by the Council in its general approach of June 2011, a European Investigation Order may be issued only when the issuing authority is satisfied that the issuing of the European Investigation Order is necessary and proportionate for the purpose of the proceedings referred to in Article 4 (Article 5a(1)(a)). But the executing authority is also allowed to have recourse to an investigative measure other than that provided for in the European Investigation Order when the investigative measure

level to ensure coherent and proportionate use of the EAW. There seemed to be a wide consensus (although not unanimity) that no proportionality check should be carried out at the level of the executing authorities. The Council instructs its preparatory bodies to continue discussing the issue of the institution of a proportionality requirement for the issuance of any EAW with a view to reaching a coherent solution at European Union level. The issue of proportionality should be addressed as a matter of priority.’ See also the last European Commission’s evaluation report COM (2011) 175. 92 J Vogel, ‘Introduction to the ruling of the Higher Regional Court of Stuttgart of 25 February 2010—The proportionality of a European arrest warrant’ (2010) 2 NJECL 145ff: the Higher Regional Court of Stuttgart carried out a proportionality check upon the national German arrest warrant in execution of a Spanish EAW issued for what appeared at first sight to be a rather minor drug offence (the sale of 0.199 grams of cocaine to an undercover agent in Spain). It also examined the proportionality of the sentence asked for by the Spanish prosecutor (four years). It did so on the basis of Art 49(3) Charter of Fundamental rights of the EU (principle of proportionality in respect of criminal offences and penalties), which is a ground for non-execution of a European arrest warrant if the penalty sought by the issuing State would be intolerably severe. The Higher regional Court finally concluded that the principle of proportionality was not violated. 93 The Stockholm programme seems to provide for a possible revision of the FD on EAW (point 3.1.1.: ‘The European Council invites the Commission to: explore the results of the evaluation of the European Arrest Warrant, and, where appropriate, make proposals to increase efficiency and legal protection for individuals in the process of surrender, by adopting a step-by-step approach to other instruments on mutual recognition’) but the JHA Council conclusions of 3–4 June 2010 about the follow-up of the recommendations made in the final report on the 4th round of mutual evaluations seem to exclude such solution and envisage only amendments to the ‘European Handbook on how to issue a EAW’. 94 Doc 8436/2/10, 28 May 2010. For a critical analysis of the Council’s and Commission’s approach, see K Weis, ‘The EAW: a Victim of its own Success?’ 2 NJECL 124f. 95 In this respect, interview with S de Biolley. Take for example the criteria related to the seriousness of the offences, which is narrowly linked to the national criminal policy.

The Letter of the European Instruments Organising Cooperation

969

selected by the executing authority will have the same result as the measure provided for in the European Investigation Order by less intrusive means (Article 9(1bis)). Last but not least a general refusal ground which was promoted by some Member States in the negotiations of the European Investigation Order and which is provided for in the proposal for a directive as agreed within the Council in its general approach of June 2011 deserves to be mentioned. Recognition or execution of a European Investigation Order may be refused in the executing state where the European Investigation Order has been issued in two types of proceedings96 and the measure would not be authorised under the law of the executing State in a similar domestic case. Such a general ground for refusal would allow the executing Member State to refuse the execution in case the measure would not have been authorised under the law of the executing State. The insertion of such a wide ground for refusal was highly criticised by some Member States because it would not only allow the executing Member State to look at the substantive reasons or issuing an European Investigation Order and to refuse the execution for example on the basis of lack of proportionality but would also give predominance to the law of the executing State, which would clearly contradict the logic of mutual recognition. (d) Adaptation Clauses Besides the examination of the grounds for refusal, it is also necessary to examine the adaptation possibilities. Mutual recognition did not suppress such possibilities; they have been maintained in various Framework Decisions of mutual recognition. Most of them were necessary in order to allow mutual recognition in spite of the existing differences between national laws, especially differences concerning investigative or other pre-trial measures and sanctions. As regards mutual recognition in the pre-trial stage, the case of the Framework Decision concerning decisions on supervision measures as an alternative to provisional detention may especially be mentioned: its Article 13 provides that, if the nature of the supervision measures is incompatible with the law of the executing State, the competent authority in that Member State may adapt them in line with the types of supervision measures which apply, under the law of the executing State, to equivalent offences. The adapted supervision measure shall correspond as far as possible to that imposed in the issuing State and shall not be more severe than the supervision measure, which was originally imposed. Adaptation possibilities are also provided for by the proposal of a Directive on a European Investigation Order as agreed by the Council in its general approach of June 2011 (see Article 9). Framework Decisions related to the execution of sanctions also provide for adaptation possibilities. This is for example the case of the Framework Decision on financial penalties: according to its Article 13, where it is established that the decision is related to acts which were not carried out within the territory of the issuing State, the executing State may decide to reduce the amount of the penalty enforced to the maximum amount provided for acts of the

96 Ie in proceedings brought by administrative authorities in respect of acts which are punishable under the national law of the issuing State by virtue of being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters; and in proceedings brought by judicial authorities in respect of acts which are punishable under the national law of the issuing state by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction, in particular, in criminal matters.

970 Judicial Control in Cooperation in Criminal Matters same kind under the national law of the executing State, when the acts fall within the jurisdiction of that state. Article 8(2)-(4), of the Framework Decision on judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty provides a possibility of adaptation when the sentence is incompatible with the law of the executing State in terms of its duration and in terms of its nature.97 Article 9 of the Framework Decision on judgments and probation decisions provides for adaptation possibilities if the nature or duration of the relevant probation measure or alternative sanction, or the duration of the probation period, are incompatible with the law of the executing State.98 Such possibilities imply a sort of control, if not a re-examination of the whole file, some examination of the file at least, in the light of the law of the executing Member State. C. THE PHILOSOPHY OF TRADITIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS AND OF MUTUAL RECOGNITION

From the previous comparative developments, it emerges that the differences from the point of view of judicial control between the texts of the conventions organising classical judicial cooperation, on the one hand, and the EU instruments of mutual recognition, on the other hand, are not as important as we might have thought a priori. The real and fundamental difference lies in the philosophy lying behind the two types of cooperation. Such philosophy isn’t sanctioned as such in any legislative text, but results from various elements. Among these, reference is to be made to some passages contained in programmatic/political documents, such as the Tampere conclusions99 and the programme of measures to implement the principle of mutual recognition of decisions in criminal matters.100 From these texts it emerges that mutual recognition is designed to strengthen cooperation between Member States but also to enhance the judicial protection of individual rights, that its implementation presupposes that Member States have trust in each others criminal justice systems and that such trust is grounded in particular on their shared commitment to the principles of freedom, democracy and respect for human rights, fundamental freedoms and the rule of law. Among the elements representative of the philosophy of mutual recognition, some definitions of mutual recognition are also particularly clear, as the definition provided for 97 ‘In the first case, the competent authority of the executing State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law; the adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing State. In the second case, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment. The adapted sentence shall not aggravate the sentence passed in the issuing State in terms of its nature or duration.’ 98 ‘In such cases, the competent authority of that State may adapt them in line with the nature and duration of the probation measures and alternative sanctions, or duration of the probation period, which apply, under the law of the executing State, to equivalent offences. The adapted probation measure, alternative sanction or duration of the probation period shall correspond as far as possible to that imposed in the issuing State. 2. Where the probation measure, the alternative sanction or the probation period has been adapted because its duration exceeds the maximum duration provided for under the law of the executing State, the duration of the adapted probation measure, alternative sanction or probation period shall not be below the maximum duration provided for equivalent offences under the law of the executing State. The adapted probation measure, alternative sanction or probation period shall not be more severe or longer than the probation measure, alternative sanction or probation period which was originally imposed.’ 99 Council-Tampere, Presidency Conclusions (1999) October, SN 200/99 § 33ff. 100 [2001] OJ C12/10.

The Philosophy of Traditional Judicial Cooperation 971 by the European Commission in its Communication of 26 July 2000 on mutual recognition of final decisions in criminal matters: Mutual recognition is a principle that is widely understood as being based on the thought that while another state may not deal with a certain matter in the same or even a similar way as one’s own state, the results will be such that they are accepted as equivalent to decisions by one’s own state. Mutual trust is an important element, not only trust in the adequacy of one’s partners rules, but also trust that these rules are correctly applied. Based on this idea of equivalence and the trust it is based on, the results the other state has reached are allowed to take effect in one’s own sphere of legal influence. On this basis, a decision taken by an authority in one state could be accepted as such in another state, even though a comparable authority may not even exist in that state, or could not take such decisions, or would have taken an entirely different decision in a comparable case. Recognising a foreign decision in criminal matters could be understood as giving it effect outside of the state in which it has been rendered, be it by according it the legal effects foreseen for it by the foreign criminal law, or be it by taking it into account in order to make it have the effects foreseen by the criminal law of the recognising state.101

Passages from the preamble of some Framework Decisions on mutual recognition should also be mentioned. From these, it is clear that mutual recognition is based on a (high) level of confidence between Member States, that it is intended to improve, facilitate, simplify, accelerate judicial cooperation and that it shall not have the effect of modifying the obligation to respect fundamental rights and the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. Compared to those contained in the traditional conventions of judicial cooperation, some formulas or wordings contained in the mutual recognition legislative texts are representative of the difference of philosophy between both types of mechanisms. Most of the conventions organising classical cooperation contain formulas, which express the philosophy of the cooperation they organise and show its possible limits. In this regard, one may refer to the following provisions: The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party. [Article 1(1) of the 1959 Convention; emphasis added.]

or The Parties shall co-operate with each other to the widest extent possible for the purposes of investigations and proceedings aiming at the confiscation of instrumentalities and proceeds. [Article 7(1) of the 1990 Convention; emphasis added.]

or The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention. [Article 2(1) of the 1983 Convention; emphasis added.]

Some of the Framework Decisions of mutual recognition adopted so far use a quite different wording, representative of the philosophy of mutual recognition, namely: The competent judicial authorities of the executing State shall recognise … without any further formality being required and shall forthwith take the necessary measures for its immediate execution in

101 Commission, ‘Mutual Recognition of Final Decisions in Criminal Matters’ (Communication) COM (2000) 495 final.

972 Judicial Control in Cooperation in Criminal Matters the same way as for a freezing order made by an authority of the executing State, unless that authority decides to invoke one of the grounds for non-recognition or non-execution … [Article 5(1) of the Framework Decision on freezing property or evidence; emphasis added.]

or ‘The competent authorities in the executing State shall recognise a decision] without any further formality being required and shall forthwith take all the necessary measures for its execution, unless the competent authority decides to invoke one of the grounds for non-recognition or non-execution … [Article 3 of the Framework Decision on financial sanctions; emphasis added.]

or The executing authority shall recognise an EEW … without any further formality being required and shall forthwith take the necessary measures for its execution in the same way as an authority of the executing State would obtain the objects, documents or data, unless that authority decides to invoke one of the grounds for non-recognition or non-execution … or one of the grounds for postponement … [Article 11(1) Framework Decision on EEW; emphasis added.]

According to the ideas lying behind such formulas, mutual recognition implies a real effort towards as much automaticity as possible, simplification and acceleration of judicial cooperation. Accordingly, most controls should be performed in the issuing State and not in the executing State. Although not stated as such, this philosophy clearly underlies some of the aforementioned general features of the mutual recognition texts, such as the absence of an explicit ground for refusal based on the protection of human rights or the systematisation in the mutual recognition texts of the clauses excluding review of the decision which forms the basis of the cooperation request in the requested State. Consequently more importance is conferred to the controls performed in the issuing State. Since these controls are different according to the considered issuing states, the question has been raised on how to identify/ assess the equivalence of controls realised in the issuing Member States. Such assessment is quite difficult to perform. Such difficulty exists particularly for mutual recognition at the pre-trial stage and results especially from the variety of existing investigation measures. The worries of simplification, acceleration and of performing most controls in the issuing State and not in the executing State are perfectly justifiable but are not the only ones to be taken into consideration. Protection of human rights and respect for individual guarantees must be as well. The challenge is to reconcile both concerns and to find a right balance between them, ie avoiding as much as possible double checks and controls, but avoiding at the same time blind confidence and ‘de-responsabilisation’ of the competent executing authorities. In the difficult quest for such ‘equilibrium’, the case law of the ECJ is of course quite essential. In its decisions on the ne bis in idem principle,102 the Court has insisted on the importance of mutual confidence and this has allowed it to give a broad interpretation of the ne bis in idem principle as enshrined in Article 54 of the Convention implementing the Schengen Agreement (CISA).103 Because it concerned the ne bis in idem principle,

102 See Joined Cases C-187/01 and C-385/01 Hüsein Gözütok and Klaus Brügge [2003] ECR I-01345; Case C-469/03 Miraglia [2005] ECR I-02009; Case C-436/04 Van Esbroeck [2006] ECR I-02333; Case C-150/05 Van Straaten [2006] ECR I-09327; Case C-467/04 Gasparini [2006] ECR I-09199; Case C-288/05 Kretzinger [2007] ECR I-06441; Case C-367/05 Kraaijenbrink [2007] ECR I-06619; Case C-297/07 Klaus Bourquain [2008] ECR I-09425; Case C-491/07 Vladimir Turansky [2008] ECR I-11039. 103 [2000] OJ L239/19.

The Philosophy of Traditional Judicial Cooperation 973 this was to the advantage of the suspected or accused persons. So, in a way, both concerns (improvement of cooperation and protection of human rights) matched each other. But when such mutual confidence is to be extended to other aspects of mutual recognition, it could become problematic104—and detrimental to the ne bis in idem principle—as is shown by its decision of 16 November 2010 in the Mantello case, where the question at stake again concerned the interpretation of the ne bis in idem principle, but this time as a ground for refusal of an EAW. In spite of the mandatory nature of this ground for refusal, the Court excluded, in the circumstances of the case, a double check by the issuing and the executing authorities; it admitted only such a control by the issuing State and required the executing authority to trust the issuing authority. The exact impact of this decision is yet uncertain and it remains to be seen whether the Court will continue in this direction. But, one can wonder whether, in its case law so far, the ECJ has not placed too much emphasis on the first concern (simplification and acceleration of cooperation) and less on the second (protection of human rights and respect of individual guarantees). The case law of the ECtHR is also quite essential to give benchmarks in order to find the above-mentioned correct equilibrium. For the time being, the cases submitted to ECtHR related to judicial cooperation between the Member State of the EU and especially to mutual recognition are limited but they tend to multiply. Its decision of non-admissibility in the Stapleton case dated 4 May 2010 is to be mentioned. Here, an EAW had been issued in 2005 by the UK authorities for acts committed by the applicant between 1978 and 1982. Overturning a decision in the High Court, the Irish Supreme Court decided to surrender him to the UK. The applicant contested this decision, since his trial in the latter jurisdiction would violate Article 6 of the Convention and, notably, the right to a fair trial within a reasonable time. Whatever the content of the EAW Framework Decision, he submitted that Contracting States were not entitled to depart from their obligations derived from the Convention and the 2003 Act mandated that a person shall not be surrendered if to do so would be incompatible with the Convention (or its Protocols). He maintained that any human rights issues concerning his surrender under the Framework Decision should be examined on the first occasion when they arise, namely, by the executing State. He therefore argued that the Irish courts should have reviewed fully, in the light of the delay in pursuing the case, compliance with Article 6 prior to his surrender to the UK (as the High Court did) and, further, that to do otherwise (as the Supreme Court did) breached his rights under Article 6 of the Convention. The Court did not follow his reasoning. Referring to its decision in the Soering v United Kingdom case, it recalled that the right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society so that the Court does not exclude that an issue might, exceptionally, be raised under Article 6 by an extradition decision in circumstances where the person has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the Court did not consider that the facts of the case disclosed substantial grounds for believing that there would be a real risk that the applicant would be exposed to such a ‘flagrant denial’ of Article 6 rights in the UK. The Court noted, in this regard, that the UK is a Contracting Party and that, as such, it has undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those

104 A Weyembergh, ‘Le principe ne bis in idem: pierre d’achoppement de l’espace pénal européen?’ (2004—3/4) 40 Cahiers de droit européen 337ff.

974 Judicial Control in Cooperation in Criminal Matters guaranteed by Article 6. It has incorporated the Convention’s provisions into domestic law by virtue of the Human Rights Act, 1998.105 The Court also rejected the applicant’s suggestion that the executing or surrendering State should go beyond the examination of a ‘flagrant denial’ and determine whether there had been established a real risk of unfairness in the criminal proceedings in the issuing State (the UK, in this case).106 It did so for various reasons, among which were: — such an approach would run counter to the principles established in Soering;107 — the Court agreed with the finding of the Supreme Court that on the facts of the case it would be more appropriate for the courts within the UK to hear and determine the applicant’s complaints in relation to the alleged unfairness caused by delay.108 It also reconciled this with some other decisions related to the so-called ‘Dublin mechanism’, stating that: [I]t may indeed be that an expelling State’s responsibilities as regards extradition/expulsion to a Contracting State have been heightened to some extent beyond those identified in the abovecited Soering judgment (TI v the United Kingdom (dec), no 43844/98, Reports 2000-III as regards the Dublin Convention and KRS v the United Kingdom, (dec), no 32733/08, 2 December 2008, as regards the Dublin Regulation). However, those cases concerned non-derogable rights under Articles 2 and 3 of the Convention. In addition, those cases concerned expulsion to another Contracting State when there were reasons to believe that the individual might be sent onwards to a third non-Contracting State (where he would be exposed to a relevant risk) without a proper examination of his claim by the intermediary (Contracting) State and, in particular, without having any proper opportunity to apply to the Court and request interim measures. This is not the position in the present case: the applicant’s final destination on surrender would be a Contracting Party, namely the UK.109

On this basis, the Court rejected the applicant’s complaints under Article 6 of the Convention as manifestly ill-founded.110 Nowhere in its decision did the Strasbourg Court explicitly mention the mutual recognition principle. However, having regard to its reasoning and conclusion, it seems that, except in circumstances where the person has suffered or risks suffering a flagrant denial of a fair trial in the requesting country, the Court ‘promotes’ the mutual recognition underlying philosophy according to which most controls should be performed in the issuing State and not in the executing State. But, as for the ECJ, it remains to be seen whether the Court will continue in this direction or not.

D. THE JUDICIAL CONTROL IN NATIONAL LAWS AND IN NATIONAL PRACTICE

Considering the generality, vagueness and lack of clarity regarding judicial control in the European texts concerning both classical cooperation and mutual recognition and since the difference from the point of view of judicial control between both kinds of cooperation results less from the letter of the texts concerned than from their philosophy or spirit, 105 106 107 108 109 110

Para 26. Para 27. Para 28. Para 29. Para 30. Para 32.

The Judicial Control in National Laws and in National Practice 975 it is necessary to examine how national laws which implemented these conventions and transposed these EU mutual recognition texts deal with judicial control (section 1) and how national judicial competent authorities behave and especially interpret the abovementioned change of philosophy (section 2).

1. The Judicial Control in National Laws Considering the room for manoeuvre left to Member States by the European texts themselves and the freedom the Member States choose to exercise vis-à-vis their European commitments, national laws are marked by important differences concerning the organisation of judicial cooperation, including the issues related to judicial control. Such ‘variable géométrie’ affects, for example the transposition of the Framework Decision on EAW: there is no single EAW regime, but as many regimes as there are existing transposing laws, each of them presenting its own specificities. Many differences exist regarding the existence or absence of remedies, the nature of issuing and executing authorities, the refusal grounds, etc. For example the aforementioned absence in the Framework Decision of explicit refusal grounds based on human rights has been interpreted quite differently by the national legislators transposing the Framework Decision on EAW. Some transposing laws, such as those of Spain or Luxembourg, do not contain any explicit ground for refusal in the field. Others, such as Article 4.5° of the Belgian law of 19 December 2003, expressly provide for a binding ground for refusal in case of human rights infringement111 or, as is the case in French law, contain only the humanitarian or non-discrimination clause.112 Other national laws, such as the Greek one for example,113 contain both a ground for refusal based on the non-discrimination clause and a more general provision according to which there will be no surrender if there are serious reasons to think that it would affect the individual’s human rights. Finally, some implementing laws, such as the UK114 or Italian115 ones, have multiplied or extended the grounds for refusal linked to human rights. The limits of this report make impossible an exhaustive comparison in the 27 Member States between judicial control in classical cooperation, on the one hand, and judicial control in mutual recognition, on the other hand. Such a comparison will only be performed in Belgian law. It will of course only be possible for the instruments, which have already been implemented or transposed in Belgian law. Considering that, at the time of writing this contribution, Belgium did only transpose two Framework Decisions of mutual recognition, namely the Framework Decision on EAW and the Framework Decision on freezing, we will only compare the Belgian classical system of extradition with the new regime of

111 See Art 4 § 5 of the Belgian law and the precisions provided for by the ministerial circular related to the EAW of 8 August 2005, 11 § 3.2.1.5. 112 See Art 695-22 5° CPP. 113 See Arts 1 § 2 and 11(e) Greek law 3251/2004. 114 See especially JR Spencer, ‘The European arrest warrant’ (2003–04) 7 Cambridge Yearbook of Legal Studies 201ff; N Padfield, ‘The implementation of the EAW in England and Wales’ (2007) 3 European Constitutional Law Review 253. 115 See Commission Staff Working Document: Annex to the Report from the Commission based on Art 34 of the Council FD of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (revised version) COM (2006) and 8 SEC (2006) 79.

976 Judicial Control in Cooperation in Criminal Matters EAW (a) and the Belgian system on MLA related to seizure with the system resulting from the transposition of the Framework Decision on freezing (b). (a) Extradition/Surrender Regimes in Belgian Law In Belgium, international extradition is mainly organised by the law on extradition of 15 March 1874.116 This law gives the final power of decision to the Government—ie the Minister of Justice—but provides for various interventions of the investigating judge (juge d’instruction) and investigating jurisdictions (Chambre du Conseil et Chambre des mises en accusation).117 The procedure may cover different stages: —

The first step is the provisional arrest (détention provisoire) of the person whose extradition is requested. Such arrest is allowed by Article 5. It is requested by the prosecution service and subordinated to an arrest warrant issued by the juge d’instruction of the place of residence of the foreigner in Belgium or of the place where he could be found. Such arrest warrant is based on an official notice of the foreign authorities requesting the extradition. The provisional arrest is only possible in case of urgency. Except the urgency condition, the juge d’instruction may not refuse the provisional arrest on the basis of opportunity reasons. The Minister of Justice has a right of inspection on the urgency: he must be informed by the prosecution services of all requests of provisional arrest with a motivated advice on the urgency. The juge d’instruction is not obliged to hear the person. The prosecution service may appeal against a decision of the juge d’instruction not to arrest the person before the Chambre des mises en accusation. But the provisional arrest is not opened for remedy. The person may however request his/her provisional release to the Chambre du Conseil (with appeal before the Chambre des mises en accusation and pourvoi en cassation). — The second step is the exequatur of the foreign arrest warrant. Article 3 provides that the foreign arrest warrant should be made executory by the Chambre du Conseil du Tribunal de 1ère Instance of the place of residence of the foreigner in Belgium or of the place where he could be found. The Chambre du Conseil must check if the formal and substantive conditions for extradition are met118 but, if the conditions are met, it must make it executory and may not substitute itself to the foreign competent authority or to the Belgian Minister in assessing the opportunity of extradition. The extent and limits of the controls to be realised have been clarified by the case law. The Chambre du Conseil may not evaluate the guilt of the person.119 The appearance

116 In this regard, see especially HD Bosly, D Vandermeersch, Droit de la Procédure Pénale, 4th edn (Brussels, La Charte, 2005) 1017ff. 117 This was made very clear by the Cour de cassation in a decision of 29 September 1982, where it stated that ‘L’étranger écroué en exécution d’un acte mentionné à l’article 3 est ainsi mis à la disposition du pouvoir exécutif, seul maître à décider, après avoir pris l’avis de la Chambre des mises en accusation, si l’étranger doit ou ne doit pas être livré à la justice du pays qui le réclame’ (Pas 1983, 145). 118 For more details on this, see G Demanet, ‘Du rôle de la Chambre du Conseil et de la Chambre des mises en accusation en cas d’extradition demandée à la Belgique’ (1988) 68 RDPC 241. 119 See Cass 16 mars 1971, Pas I, 658; Cass 22 avril 1974, Pas I, 853 etc The Cour de cassation also declared for example that ‘Pour rendre exécutoire un mandat d’arrêt décerné par une autorité étrangère aux fins d’extradition, la juridiction d’instruction doit vérifier si le fait pour lequel le mandat d’arrêt a été décerné et non la qualification donnée par l’autorité étrangère, constitue une infraction suivant les lois belges et est prévu par le traité d’extradition; elle recherche aussi si la prescription ne paraît pas acquise d’après la loi nationale’ (Cass 22 June 1994, Pas, 635).

The Judicial Control in National Laws and in National Practice 977 of the concerned person is not provided for by the law;120 the procedure is thus not contradictory. But the exequatur is open for remedy (appeal before the Chambre des mises en accusation and pourvoi en cassation). After the exequatur and notification, the person is placed sous écrou extraditionnel and à la disposition du pouvoir exécutif. — According to Article 3 of the law of 1874, it is clearly for the government to decide to extradite or not. But a consultative role is conferred to the judiciary: the government shall take the advice of the Chambre des mises en accusation of the Court of Appeal in the territorial area of which the person was arrested. This advice will not intervene if, at the hearing of the person by a magistrate of the prosecution service after the placement sous écrou, the person renounced to the extradition formalities. The procedure before the Chambre des mises en accusation is contradictory: both the concerned person—who may be accompanied by a lawyer—and the public prosecution service are heard. The Chambre des mises en accusation must check if the conditions for extradition are met. The checks are thus the same as those performed earlier by the Chambre du Conseil for the exequatur of the foreign arrest warrant. It may not examine the guilt of the person. The advice given is only consultative and is not a decision subject to a pourvoi en cassation.121 The final decision is taken by the government, which may be lead by opportunity reasons. Even if the advice of the Chambre des mises en accusation is negative, it does not bind the government. The government decision is an administrative decision, meaning that it must be motivated and that it is opened for remedy before the Council of State. The Framework Decision on EAW was transposed by a law distinct from the extradition law: it is dated 19 December 2003.122 It was completed by a departmental circular concerning the EAW, dated 8 August 2005.123 Besides the contraction of the procedure—ie there is one single procedure of execution, which concerns both the arrest and the surrender—a major difference between the regimes of extradition and of EAW in Belgian law is the suppression of the government’s decisional role: apart from the competence of the Belgian Ministry of Justice, ie the Service Public Fédéral Justice (SPF Justice), to receive requests for transit and the documents required for it (Article 40 of the Belgian law implementing the EAW), the SPF Justice only plays a supportive role: it assists the competent judicial authorities in the execution of the law but only if they request it (Article 43 § 1 of the Belgian law implementing the EAW). Both the decisions to issue an EAW and the decision to execute it belong to the judiciary. The competent judicial authority to issue a EAW for the purpose of criminal prosecution is the investigating judge (Article 32 § 1 of the Belgian law implementing the EAW) and the judicial authority competent for the issuing of a EAW for the purpose of execution of a

120

Cass 16 May 1946, Pas, 371. In this respect, see Cass 8 March 1983, Pas, 747. 122 Published in MB, 22 Dec 2003. For comments, see especially P Monville, ‘Le mandat d’arrêt européen: remise en cause du mécanisme de la simple remise’ (2003) 11 JT-dr eur 168ff; B Dejemeppe, ‘La loi du 19 décembre 2003 relative au mandat d’arrêt européen’ (2004) 123 JT 112ff; G Stessens, ‘Het Europees aanhoudingsbevel: De wet van 19 december 2003’ (2004-2005/15) 68 Rechtskundig Weekblad 561; D Van Daele, ‘België en het Europees aanhoudingsbevel: een commentaar bij de wet van 19 December 2003’ (2005) 6 Tijdschrift voor strafrecht 151. 123 MB 31 August 2005. For comments, see especially GF Raneri, ‘‘L’émission et l’exécution, dans les relations entre la Belgique et les autres Etats membres de l’UE des décisions de saisie de biens ou d’éléments de preuve. Présentation de la loi du 5 août 2006’ (2007) 52 Revue de droit de l’Université de Liège 49ff. 121

978 Judicial Control in Cooperation in Criminal Matters sentence is the Procureur du Roi (Article 32 § 2 of the Belgian law implementing the EAW). Regarding execution of a foreign EAW, the following steps may be distinguished: —

the procedure begins with the arrest of the person which intervenes on the basis of a SIS alert or on the basis of the EAW. — Within the 24 hours following deprivation of liberty, the person must be heard by the investigating judge, who informs him/her about the contents of the EAW, the possibility to content to his/her surrender, his/her right to choose a lawyer and an interpreter and hears him/her exclusively about his/her detention and act his/her observations in this relation (Article 11 § 2 of the Belgian law implementing the EAW). The investigating judge does not hear the person on the facts. He adopts a decision concerning the existence or non-existence of a binding ground for refusal (a cause that does not imply any subjective appreciation of further control) and an order concerning the person’s deprivation of liberty. If, at the hearing of the person, the investigating judge notices the existence of a binding ground for refusal, he takes immediately a reasoned order of non-execution (Article 14 para 1). The Prosecution service may appeal this decision of non-execution before the Chambre des mises en accusation of the Cour d’appel within a period of 24 hours after the day of the decision. The Chambre des mises en accusation must issue its decision within the 15 days of the appeal, after having heard the prosecutor and the person concerned assisted or represented by his/ her legal counsel. The dossier is made available to the person concerned and to his/ her counsel during the last working day before the appearance. This decision can be subject to an appeal in cassation (Article 14 of the Belgian law implementing the EAW). At the end of this hearing, the investigating judge shall order either the placing or maintenance in detention of the person or, spontaneously, on the request of the prosecution service (Article 11 § 3 of the Belgian law implementing the EAW) or of the concerned person, the person’s release until the time of the final decision on the execution of the EAW. This order of the investigative magistrate is not subject to appeal (Article 11 § 7 of the Belgian law implementing the EAW). It remains effective until the decision on execution of the European arrest warrant is final (Article 20 § 1 of the Belgian law implementing the EAW). — If, at the first hearing, the investigating judge did not conclude to the existence of a clear ground for refusal, within 15 days of the arrest, the Chambre du Conseil will take a reasoned decision about the execution of the EAW, on a report of the investigating judge and after having heard the Procureur du Roi and the person concerned assisted or represented by his/her legal counsel. The dossier is made available to the person concerned and to his/her counsel during the last working day before the appearance. The Chambre du Conseil checks if the threshold provided for by Article 2(1) of the Framework Decision is met, if a mandatory or non-mandatory ground for refusal is to be applied, if the fact described in the EAW corresponds to one of the facts for which double criminality has been suppressed, if guarantees are to be requested to the issuing authority. The Chambre du Conseil may not check the legality and regularity of the warrant but only its execution. The concerned person and the prosecution service may appeal against the decision of the Chambre du Conseil before the Chambre des mises en accusation within the 24 hours of the decision for the prosecution service, and within the 24 hours from the day the decision has been served to him/her for the concerned person. The dossier is made available to the person concerned and to his/her

The Judicial Control in National Laws and in National Practice 979 counsel during the last working day before the appearance. Within 15 days of the appeal, the Chambre des mises en accusation rules on the appeal after having heard the prosecutor and the person concerned assisted or represented by his/her legal counsel. The decision can be appealed in cassation by the concerned person and the prosecution service within a period of 24 hours of the decision for the prosecution service, and within the 24 hours from the day the decision has been served to him/her for the concerned person. The Cour de cassation takes its decision within 15 days after the date of appeal in cassation. The effect of judicialisation resulting from the EAW regime is clear since the decisional power of the government has been replaced by the decisional power of judicial authorities and because a complete set of judicial remedies has been established both regarding the decision of the investigating judge on the existence or non-existence of a binding ground for refusal and regarding the decision of the Chambre du Conseil on the execution. A first impression is thus that the evolution from extradition to EAW gives more power to the judicial authorities. Such evolution is not as important or noticeable in all the Member States. The comparison with the Netherlands for instance is quite interesting.124 If we compare the legislative evolution from extradition (Uitleveringswet) to EAW (Overleveringswet), one gets also the impression that the evolution from extradition to EAW gives more power to the judicial authorities but that such increase of powers to the judicial authorities and the effect of judicialisation are more limited in the Netherlands than in Belgium. This is due to two main elements: first, the decisional power of the Dutch Minister of Justice in extradition law is more limited than in Belgian law since the Minister is bound by the judiciary’s negative position and, second, there is not a complete set of remedy against the decision adopted by the executing authority, the District Court of Amsterdam, in the EAW law. The evolution in Belgium consisting in giving more power to the judicial authorities should anyway be tempered because another difference between the regimes of extradition and of EAW in Belgian law consists in the reduction of grounds for refusal. However such reduction is not as important as we could a priori think. Some grounds for refusal presented in the Framework Decision as being non-mandatory have been made mandatory in Belgian law,125 and some grounds for refusal not explicitly provided for in the Framework Decision have been maintained in Belgian law. According to Article 4, 5° of the Belgian law on the EAW, the execution of a EAW is refused if there are serious reasons to believe that the execution of the EAW would have the effect of jeopardising the fundamental rights of the person concerned, as they are enshrined in Article 6 TEU. This mandatory ground for refusal covers the so-called humanitarian or non-discrimination clause.126 However, as seen previously, the philosophy of mutual recognition implies to ‘lighten’ the contents of the checks, which is clearly implemented

124 See W Van Ballegooij, ‘The Netherlands and mutual recognition: between proportionality and the rule of law’ in G Vernimmen, L Surano and A Weyembergh (eds), The Future of Mutual Recognition in Criminal Matters in the EU (Brussels, Edn de l’Université de Bruxelles, 2009) 401ff. 125 According to Art 4 4° of Belgian Law on the EAW, the execution of a EAW is refused where the criminal prosecution or the conviction of the person is statute-barred under Belgian law and if the offences fall within the jurisdiction of Belgian courts. The ground for refusal based on the double criminality requirement is also made mandatory for the offences not listed 126 See departmental circular § 3.2.1.5.

980 Judicial Control in Cooperation in Criminal Matters in Belgian law, especially via the departmental circular, which has brought some precisions about the use of some grounds of refusal and particularly the ground for refusal based on human rights. According to this circular, the Belgian executing judicial authority must not assess the political situation in the other Member States: the control will be strictly limited to the concrete circumstances of the case. The Belgian executing judicial authority must not systematically examine the level of protection of human rights in the issuing State. Such control would be contrary to the principle of mutual recognition based on mutual trust. According to the departmental circular, there is a presumption of respect of human rights in favour of the issuing Member States. This refusal ground will only be used when the concerned person invokes serious and established (ie based on concrete facts) reasons to believe that his/her surrender would endanger his/her human rights. If the interested person does not spontaneously invoke such motives, the refusal ground will only be used by the Belgian executing authority, when its information indicates a clear danger for this individual’s fundamental rights. It is thus essential to see in practice which checks are adopted by the executing authorities, how deep they are, etc (see below). (b) Seizure/Freezing: from MLA to Mutual Recognition in Belgian Law In Belgian law,127 MLA is mainly organised by Article 873, para 2 of the Code judiciaire, and by the law of 9 December 2004 on international mutual legal assistance;128 MLA related to seizure is especially governed by Article 11 of the law of 1874 on extradition which concerns search and seizure, and the law of 20 May 1997 on international cooperation concerning the execution of seizure and confiscation.129 According to Article 873, al 2 of the Code judiciaire combined with Article 5, al 1 of the law of 9 December 2004 on international mutual legal assistance, the execution of international rogatory commissions is subordinated to authorisation by the Minister of Justice,130 except if the request comes from a Member State of the EU. According to Article 11 of the law of 1874 on extradition, rogatory commissions tending to realise search and seizure must go through an exequatur by the Chambre du Conseil du Tribunal de 1ère Instance of the place where search and seizure must be realised. According to Article 8 of the law of 20 May 1997 which governs international cooperation concerning the execution of seizure and confiscation, when a request tending to execute a provisional measure or a seizure is addressed to Belgium, the Chambre du Conseil du Tribunal de 1ère Instance of the place where the goods are located makes the provisional measure or seizure executory, after having heard the public prosecution service and the condemned person or his/her counsel, after having checked whether the conditions of the execution are fulfilled and whether the grounds of refusal must not be applied. The role of the Chambre du Conseil is in fact limited: it checks if the necessary conditions are fulfilled and if the grounds for refusal

127

See Bosly, Vandermeersch (n 116) 1119ff. Loi du 9 décembre 2004 sur l’entraide judiciaire internationale en matière pénale et modifiant l’Art 90ter du code d’instruction criminelle. 129 Loi du 20 mai 1997 sur la coopération internationale en ce qui concerne l’exécution des saisies et des confiscations. 130 About this authorisation, see Bosly, Vandermeersch (n 116) 1143ff. 128

The Judicial Control in National Laws and in National Practice 981 provided for by Article 3 of the law must be applied. There is no right to appeal against the decision of the Chambre du Conseil. The Cour de cassation ruled that: [A]ucune disposition conventionnelle ou légale n’accorde aux personnes affectées par une mesure provisoire ou par une saisie, en application de la loi du 20 mai 1997, un recours immédiat, et notamment un recours en appel contre l’ordonnance d’exequatur d’une demande d’entraide tendant à une telle mesure provisoire ou saisie.131

The concerned person has no right of appeal and no right to launch a référé pénal as organised by Article 28 sexies and 61 quater since execution of rogatory commissions obey particular rules and are not subordinated to those provisions. According to Article 11, after the seizure, the Chambre des mises must also decide on the (partial or complete) transmission of the seized documents and objects to the requesting State. In doing this, it checks the regularity of the procedure and the link between the documents and objects and the facts described in the request. It does not check the elements of guilt as described in the rogatory commission. It orders the restitution of the objects and documents, which are not linked to the concerned facts and must decide on the claims of third interested parties. It may refuse the transmission if such transmission hurts the rights of third parties. The Framework Decision on freezing was transposed by the Belgian law of 5 August 2006.132 It introduced some changes in comparison with the MLA system but these changes are not as spectacular as between the extradition and EAW regimes. This is mainly due to the fact that judicialisation was already achieved among the Member States of the EU (see MLA law of 2004). According to Article 12, after the reception of a decision of seizure from a Member State of the EU, the prosecutor goes to the investigating judge of the place where the goods are located or where most of them are located. This results in a simplification since it allows the limitations to one execution procedure only and not multiple ones as in the classical systems where the exequatur had to be realised by the different territorially competent Chambres du Conseil if goods to be seized were located in different places. The investigating judge decides on the execution and checks if the conditions listed by Articles 2 and 3 are met, if the grounds for refusals must be applied, if the fact described in the EAW corresponds to one of the facts for which double criminality has been suppressed, if the seizure should be postponed. According to Article 12, para 4, there is no appeal against the decision of the investigating judge but all prejudiced persons have the right to launch a référé pénal as organised by Article 61quater CIC, which is excluded under the MLA system. As regards the remedy, there is thus a change but it is limited. In other Member States, changes brought by mutual recognition in this field are limited as well. This is for example the case in Dutch law, where the passage from MLA related to seizure to mutual recognition and freezing (Wetboek van Strafvordering) did not bring about any important changes.

131

Cass 15 May 2001. Loi du 5 août 2006 relative à l’application du principe de reconnaissance mutuelle des décisions judiciaires en matière pénale entre les Etats membres de l’UE, MB 7 September 2006. 132

982 Judicial Control in Cooperation in Criminal Matters 2. National Practice It is essential to examine the practice to see how the transposing laws are implemented and how the new philosophy of mutual recognition is interpreted. Such examination will be restricted to the practice related to the EAW. Generally speaking, the Framework Decision on freezing is rarely applied,133 one of the reasons being that the advantages of the new procedure are quite limited in comparison with the classical one.134 Even for the practice related to the EAW, the developments will remain limited. From the numerous assessments that have been carried out, the EAW is ‘the’ success story of EU criminal law. In this respect, the successive Commission evaluation reports are particularly clear.135 From its 2011 report and the available statistics compiled for the years between 2005 and 2009, it emerges that 54,689 EAWs were issued and 11,630 EAWs executed. Compared to the previous extradition procedures, the increased speed in which cases are dealt with is impressive: the average length of a procedure, which was of a oneyear for the extradition of requested persons, has been reduced for those who consented to their surrender to 14 to 17 days and for those who did not consent to 48 days. The final report on the fourth round of mutual evaluations devoted to the practical application of the EAW and corresponding surrender procedures between Member States also underlines the practitioners’ positive view of the EAW and its application.136 Nevertheless such consensual analysis does not mean that the situation is ideal. On the contrary, there continue to be problems and difficulties,137 which shouldn’t be neglected. There is considerable room for improvement. In its last evaluation report dated 11 April 2011, the European Commission itself recognised that ‘the past seven years have also shown that, despite its operational success, the EAW system is far from perfect. Member States, European and national parliamentarians, groups from civil society and individual citizens have all expressed some concerns in relation to the operation of the EAW and in particular its effect on fundamental rights’.138 Judicial authorities’ attitudes differ, sometimes considerably. These variations logically reflect those existing among the transposing laws but they go far beyond them and result from the fact that the competent national authorities do not have the same sensitivities. Such differences are to be noticed between judicial authorities originating from different

133 In this respect, see most of the national reports in Vernimmen, Surano, Weyembergh (n 29). See also Interviews with S Guenter, and T Lamiroy. 134 Ibid. 135 The first report is COM (2005) 63 SEC (2005) 267. It was completed by COM (2006) 8 SEC (2006) 79. Another report concerning the implementation from 2005 until June 2007 was issued in July 2007 (COM (2007) 407 SEC (2007) 979). The last one is COM (2011) 175 final. 136 See Council Final report no 8302/4/09 of 28 May 2009 on the fourth round of mutual evaluations—The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States. 137 Such problems and difficulties have sometimes been brought to light quite vigorously: see for example the declaration made by Thomas Hammarberg, Council of Europe Commissioner for Human rights, who underlined especially that ‘Human rights organisations have expressed concerns about the impossibility in some countries for an innocent person to appeal against a decision to be surrendered’ (T Hammarberg, ‘Overuse of the European Arrest Warrant—a threat to human rights’ (The Council of Europe Commissioner’s Human Rights Comments, 15 March 2011) http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=124. See also the numerous declarations made by Fair Trials Abroad www.fairtrials.net/. See also C Heard, D Mansell, ‘The EAW: the role of Judges when human rights are at risk’ (2011) 2 NJECL 133ff. 138 COM (2011) 175 final.

The Judicial Control in National Laws and in National Practice 983 Member States, but also among judicial authorities emanating from within the same Member State. All judicial authorities do not apply the same level of mutual confidence. They exercise more or less deep control on the warrant to execute and use more or less extensively the existing refusal grounds. They vary in how strict they are regarding the realisation of formal requirements and especially regarding the precision and clarity of information mentioned in the warrant. Within a single Member State and sometimes in spite of the existing circulars fixing guidelines, different judicial practices have been noticed. As emerges from the national peer evaluation reports, in France139 and Luxembourg,140 the competent authorities have different visions concerning the level of control to carry out. Whereas some of them trust the information provided by the issuing authorities, others tend to carry out a deeper substantive check. Between authorities originating from different Member States, some diverging general trends appear as well. The Irish and UK authorities for example seem to have a tendency to be rather strict, regularly or even systematically requiring additional information to that mentioned in Article 8(1) of the EAW Framework Decision and proceeding to a deep control.141 Even if it seems to be to a somehow lesser extent, the Dutch authority for instance seems also to perform deep controls.142 Generally speaking, the approach of the Belgian executing authorities seems to be different. There are of course some exceptions, as for instance the practice of some Belgian executing authorities, which continue to examine the facts and check the elements of guilt,143 or some decisions, such as the Belgian decision dated 8 December 2006 from the Chambre des mises en accusation of Brussels, refusing to execute an EAW issued by an Austrian competent judicial authority on the basis of the refusal ground related to human rights.144 From a general assessment of the Belgian practice and of the Cour de cassation case law it appears that, generally speaking, the controls performed are ‘light’ and that the executing Belgian authorities tend to respect the philosophy of mutual recognition and show a high level of mutual recognition towards their EU foreign counterparts.145 The legitimacy of the high level of mutual trust of some Belgian decisions may even be questioned. In this regard, one may refer to the so-called Praczijk case. An Italian judicial authority issued an EAW against a person called Praczijk. On that basis, a Belgian national called Praczijk was arrested by the Belgian authorities and detained. In spite of doubts about his identity, he was surrendered to the 139 Council, Evaluation Report on the fourth round of mutual evaluations ‘practical application of the European Arrest Warrant and corresponding surrender procedures between member states’ no 9972/1/07 of 29 June 2007 REV 1, 22. 140 Council, Evaluation Report on the fourth round of mutual evaluations ‘practical application of the European Arrest Warrant and corresponding surrender procedures between member states’ no 10086/07 of 29 June 2007 17. 141 The deep control performed in the Assange case (n 27), before concluding to the execution of the Swedish EAW, is for example symptomatic in this regard. 142 See for example BP5390, Rechtbank Amsterdam, 22 February 2011, whereby, considering that there was a real risk of violation of Art 3 ECHR, the executing authority decided to require more information from the Swedish issuing authority about the length and the nature of preventive detention which the person would have to undergo after his surrender. See also BO1448, Rechtbank Amsterdam, 22 October 2010 where the executing authority checked quite seriously the detention conditions in the issuing Member State before concluding the execution of the EAW. 143 See interviews with S Guenter and with T Lamiroy. 144 In this regard, see A Weyembergh, V Santamaria, ‘La reconnaissance mutuelle en matière pénale en Belgique’ in G Vernimmen, L Surano, A Weyembergh (eds), The Future of Mutual Recognition in Criminal Matters in the EU (Brussels, Edn de l’Université de Bruxelles, 2009) 76. 145 Ibid 47ff. See also interviews with S Guenter and with T Lamiroy.

984 Judicial Control in Cooperation in Criminal Matters Italian authorities, who quite soon realised that he was not the wanted person and released him.146 Questioned by a Member of Parliament on the compensation to be paid to Praczijk, the Belgian Minister of Justice L Onkelynx declared that the Belgian authorities did not have to pay any compensation, since they had not committed any error but had simply satisfied their duty of mutual trust!147 If one may wonder whether the Irish and UK attitude complies with the mutual recognition principle, the same question may be raised vis-à-vis the ‘blind trust’ of Belgian authorities in the above-mentioned case. Its consequences for the individual’s rights and guarantees concerned are at least quite worrying. A better balance between the concerns at stake (namely simplification/acceleration of cooperation and protection of human rights and individuals’ guarantees) should be sought. The national executing authorities should be given a sense of responsibility in this quest and such balance should be at the heart of the common European judicial culture to be forged. To achieve this aim, judicial training is of course essential.148 The level of accuracy or precision of the EU legislative instruments regarding the control to be performed should also be raised. This is the reason why we particularly strongly support the insertion in the mutual recognition instruments to be adopted of an explicit refusal ground based on fundamental rights but complemented by explicit criteria outlining the degree of control to be performed. In this regard, reference is made to the above-mentioned opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order, according to which A fundamental rights-based refusal ground could act as an adequate tool to prevent fundamental rights violations occurring during cross-border investigations. At the same time, the executing state would be required to be familiar with the criminal law rules and procedures of the issuing state, as well as the details of the case at hand. Therefore, a fully-fledged fundamental rights assessment in every case would not only counteract the idea of mutual recognition, but due to complex and long procedures it might also undermine some of the fundamental rights standards set out in section 2.2. For this reason, any establishment of a fundamental rights-based refusal ground in the directive should ideally be complemented by explicit parameters. Such parameters could limit the refusal ground to circumstances where an EU Member State has a well-founded fear that the execution of an EIO would lead to a violation of fundamental rights of the individual concerned. In this way, a fundamental rights-based refusal ground could serve as a ‘safety-valve’, facilitating EU Member States’ compliance with fundamental rights obligations flowing from EU primary law without Member States having to deviate from EU secondary law. (…)149

146 See decision of 19 May 2006 of the Chambre du Conseil de Tongres (not published) and the decision by the Chambre des mises en accusation d’Anvers of 2 June 2006, T Strafr 2006, 346ff (Note P De Hert, J Millen, ‘Ontvankelijkheidstoetsing en onschuldverweer bij het Europees aanhoudigsbevel’ 347–48). 147 See question by A Roppe on the ‘incarcération abusive de Pascal Praczijk’ (no 12334), Chambre des Représentants de Belgique, CRIV 51 COM 1041. 148 In this regard, see especially Council Resolution of 23 October 2008 of the Representatives of the Governments of the Member States meeting within the Council on the training of judges, prosecutors and judicial staff in the European Union [2008] OJ C299/1; Council Final report no 8302/4/09 of 28 May 2009 on the fourth round of mutual evaluations—The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States; Commission, ‘Building trust in EU-wide justice: a new dimension to European judicial training’ (Communication) COM (2011) 551 final. 149 Opinion of the European Union Agency for Fundamental Rights on the draft Directive regarding the European Investigation Order, 14 February 2011, 11.

Conclusion 985 E. CONCLUSION

The topic of the present contribution is quite intricate. This complexity is due to several reasons among which the confusion around the concept of judicial control, the need to find a right balance between diverging considerations, the links with numerous aspects, such as the nature of issuing authorities and of executing authorities, the grounds for refusal, etc. As previously underlined, this paper’s ambition was not to exhaust the subject, but to give some food for thought. The idea that the passage from classical cooperation towards mutual recognition has lead to an evolution regarding judicial control and especially to a decline of the latter is not verified or confirmed as clearly as some would expect. The differences from the point of view of judicial control between the texts organising classical cooperation and those organising mutual recognition is not as important as we could think a priori, especially because of their vagueness on these points. The real and fundamental difference lies in the philosophy lying behind the two types of cooperation, according to which most controls should be performed in the issuing State and not in the executing state. But such philosophy is not sanctioned as such in any legislative text. Whether mutual recognition really leads to a change regarding judicial control depends on how the national legislators implemented the classical conventions of judicial cooperation and transposed the new EU instruments and on how the national competent authorities implement in practice the cooperation mechanisms and especially the mutual recognition principle. In both respects, important differences between Member States and in practices are to be noticed. So, at least for the time being, there is no common model regarding judicial control even under the mutual recognition regime. Of course both European courts (the ECJ and the ECtHR) could play an essential role in shaping a model. They have begun to do so with the Mantello case and the Stapleton case, through which both courts seem to advocate the above-mentioned idea that most controls should be performed in the issuing state and not in the executing state. But one should wait and see whether such an approach will be confirmed in the future. The EU has anyway a long way ahead in order to forge a genuine European judicial culture, which is to be based on a right balance between two essential elements, namely the need to simplify and accelerate the cooperation on the one hand and the need to safeguard the human rights and individuals’ guarantees on the other hand. In this regard, raising judicial authorities’ awareness and sense of responsibility is fundamental, as well as enhancing judicial training and raising the level of precision of the EU instruments, especially regarding the level and extent of judicial control.

27 Judicial Control in Pre-Trial Criminal Procedure Conducted by the European Public Prosecutor’s Office ZLATA ÐURÐEVIC´

A. INTRODUCTION

T

HE EUROPEAN PUBLIC Prosecutor’s Office (EPPO), according to Article 86 of the Lisbon Treaty, shall be a supranational body responsible for investigating, prosecuting and bringing to judgment the perpetrators of offences against the Union’s financial interests. The Lisbon Treaty also determines that the EPPO shall exercise the functions of prosecutor in the competent courts of Member States (Article 86(2)). It is indisputable that the expression ‘exercise the functions of prosecutor in the competent courts’ refers to the phase of adjudication in criminal proceedings involving accusation and trial. The EPPO is to prefer an indictment before the national court and act as a prosecutor in trial. The national criminal procedural law is relevant for the prosecutorial powers and actions of the EPPO from the moment of indictment. As concerns the pre-trial criminal procedure governing the EPPO’s powers and actions, it shall be regulated by EU law, specifically by the Council’s regulations adopted in accordance with a special legislative procedure.1 The Lisbon Treaty in Article 86(3) envisages that the regulations shall determine—besides general, functional and procedural rules on the EPPO—‘the rules applicable to the judicial review of procedural measures taken by the EPPO in the performance of its functions’. Thereby, the principle of judicial control of the EPPO has been expressly laid down in the EU primary law. As concerns the scope and form of judicial control over the EPPO, the Lisbon Treaty is silent, thus leaving many questions undecided. The judicial character of the criminal proceedings from the moment of accusation is common European standard. The indictment has to be reviewed by the court (jurors or professional judges), and the trial takes place in the court. On the other hand, the pre-trial criminal procedure in Europe is highly various from the point of its judicialisation, defined as involvement of the courts. On the one hand are criminal procedures with the judicial investigation run by the investigative judge;2 on the other hand are criminal procedures 1 Under a special legislative procedure the regulations shall be adopted by the Council alone acting unanimously (Art 333 Consolidated version of the Treaty on the Functioning of the European Union [2008] OJ C-115/47). 2 On judicial investigation, see national reports of Belgium, France, Greece, Slovenia, Spain in R Vogler et al (eds), Criminal Procedure in Europe (Berlin, Duncker & Humblot, 2008); B Pesquié, ‘The Belgian system’ in

Introduction 987 with prosecutorial investigation without judicial control.3 In between are systems with different levels of judicial powers over prosecutorial investigation. Such diversity raises the question of the scope and type of the judicial involvement in the pre-trial procedure run by the EPPO. The issue is particularly important, as the Lisbon Treaty envisages prosecutorial and not judicial investigation. The principle of judicial control is one of the essential human rights standards in Europe enshrined in the European Convention on Human Rights (Article 6) and the Charter of Fundamental Rights of the European Union (Article 47). It is a constituent part of democracy and the rule of law. Any restriction of individual rights by state authorities should be reviewable by the court. Criminal investigation implies undertaking of acts which impinge upon human rights of individuals, and therefore requires judicial protection of human rights, or judicial control of authorities’ decisions. In criminal proceedings where investigation is conducted by the investigative judge, this question is not so prominent because it is the court that decides about coercive or evidential investigative acts, as well as about the initiation, conduct and termination of the investigation. However, where the investigatory function is conducted by a prosecutor and not a judge, the implicit judicial protection of the rights of individuals is absent and the role of the courts in the prosecutorial pre-trial criminal procedure has special dimension and importance. The significance of the principle of the judicial control for the EPPO has been recognised since its conception. In the Corpus Juris the principle of judicial control or judicial guarantee was proclaimed as one of the six guiding principles, and the first relating to the procedure.4 It is well-known that the domain of the prosecutor has radically expanded in recent decades, mainly due to a transition from judicial to prosecutorial investigation throughout Europe. There is a clear tendency towards abolishing or reducing powers of the investigative judge5 in the European pre-trial proceedings and introducing the so-called judge of freedoms ensuring judicial protection of basic human rights. EU policy, especially towards candidate countries in the last decade, has prompted the introduction of prosecutorial investigation.6 On the other hand, the issue of judicial control as well as of defence rights was not in the focus of the EU until recently. As the Lisbon Treaty has established prosecutorial pre-trial criminal proceedings in which the EPPO is going to run investigation and prosecution, one of the crucial decisions shall be to set the borderline between prosecutorial and judicial powers in this stage of

M Delmas-Marty and JR Spencer (eds), European Criminal Procedures (Cambridge, Cambridge University Press, 2002) 81ff; V Dervieux, ‘The French system’ in Delmas-Marty and Spencer (ibid) 218ff. 3

Germany. See here section C3(a). M Delmas-Marty, JAE Vervaele The Implementation of the Corpus Juris in the Member states, vol 1 (Antwerp, Intersentia, 2000) 187. 5 Judicial investigation was abolished in Germany in 1974, in Italy in 1989, in Austria in 2008, in Croatia in 2011. In some countries the role of the investigative judge has been greatly reduced: in the Netherlands and Luxemburg the investigative judge may carry out judicial investigation only at the request of the prosecutor and in Lithuania, Austria and Portugal the judge has to carry out certain investigative actions, like questioning of suspect or witness. See respective national reports in this book. 6 See Reform of Pre-Trial Criminal Proceedings in Croatia: Analysis, Comparison, Recommendations and Plan of Action (2007-2012), CARDS 2003 Twinning Light Project HR03-IB-JH-04-TL, November 2006. The result of the project was that the concept of judicial investigations should be abolished altogether, including all investigative functions of the court and the investigating judge should be replaced by a judge of investigation (2, 170). The introduction of prosecutorial investigation in Croatia was the benchmark for closing ch 23 on Judiciary and Human Rights in accession negotiations. 4

988 Judicial Control in Pre-Trial Criminal Procedure proceedings. The issue is to which extent the court has power to control the prosecutorial acts and decisions and in which cases the individuals have right to judicial protection. The institutional issues about the judicial control of the EPPO shall not be discussed here.

1. Types of Judicial Control in Pre-Trial Criminal Procedure There are various classifications of the judicial protection involved in criminal procedure, based on differences such as whether the court is ordering or reviewing measure, whether judicial control is obligatory or optional, and to which functions of the prosecutor the judicial control refers. (a) Judicial Order/Authorisation and Judicial Review One dichotomy is judicial order and judicial review. The first ensures that basic human rights can be deprived and limited only upon a court order or authorisation. The measure may be requested or proposed by the prosecutor, but the order or authorisation has to be given by the court. The decisive feature is that the measure cannot be executed without judicial decision. On the other hand, the judicial review ensures the subsequent control of the legality of decisions made by administrative agencies and other bodies vested with public authority. The right to judicial review in criminal proceedings requires the right to legal remedy before the court against the measures and decisions of prosecutor, police authorities and other administrative authorities. Both types of judicial protection or control are enshrined as human rights in European constitutions and international human rights documents. (b) Mandatory and Optional Judicial Control The distinguishing feature of the second classification is whether judicial control is mandatory or optional. It is usually mandatory for the measures that are in judicial jurisdiction, but the urgency of the situation, mainly at the initial stages of the criminal proceedings, requires that the decision is made by the prosecutor or police and in short time approved by the court. This is so-called ex post factum judicial authorisation or review. Arrest is the most common example of a police measure which has to be subsequently approved by the court in order to continue.7 The judicial control over the prosecutorial measures is optional when it depends on the will of the affected party. The suspect using the legal remedy at his/ her disposal activates the judicial control of the prosecutor’s decision. (c) Judicial Control over Investigative and Prosecutorial Functions The third classification refers to the different functions of the prosecutor in the pre-trial procedure: prosecutorial and investigative. The prosecutorial function is the duty of the prosecutor to prosecute, ie to charge the suspect with criminal offence and to act as a

7

Other examples see here section B1(b).

Introduction 989 prosecutor before the court. The investigative function is the duty of the prosecutor to order and carry out investigative acts in order to collect evidence for the indictment and judgment. These functions can in the pre-trial procedure be separated between prosecutor and investigative judge. However, in most of the criminal justice systems in Europe today, the prosecutor combines prosecutorial and investigative functions. Each of them can be subject to judicial control, the scope and content of which is very different. The EPPO shall have both prosecutorial and investigative functions, and the content and form of their judicial control is an open question. Before analysing the need and form of judicial control of particular prosecutorial and investigative acts, it is necessary to clear up some points of terminology.

2. Ambiguous Meaning of ‘Judicial’ The word ‘judicial’ is not so simple to define legally, having different meanings depending on the context in which it is used. From the etymological point of view, ‘judicial’ has Latin roots and originates from iudicialis (pertaining to courts of law), iudicium (judgment, trial), iudex (judge), iudicatio (judgment). However, today one can identify two main senses of the word, one which has kept the original meaning related to the court, and the other which has broadened the term’s content to encompass not only the courts but also other authorities involved in the administration of justice. The first, narrower meaning can be found in the common law Anglo-American jurisdictions and in human rights law. In common law the term ‘judicial’ applies only to a judge who adjudicates. A common law judge ‘would not consider a prosecutor as having a judicial position or acting as a judicial authority’.8 In the US legal system, the prosecutor is not considered a judicial authority and does not belong to the judiciary. The European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) have adopted this meaning of the term ‘judicial’ from the common law of the Anglo-American jurisdictions. The ‘judicial authority’9 or ‘officer authorised by law to exercise judicial power’ mentioned in Article 5(3) of the ECHR is interpreted by the ECtHR as a court. Also, for the ECtHR the adjective ‘judicial’ in expressions like ‘judicial authority’, ‘judicial power’, ‘judicial guarantee’, ‘judicial control’ and ‘judicial review’ pertains only to judges and the courts. The court or judicial authority, as one of the fundamental guarantees afforded to the individual, is interpreted by the ECtHR ‘autonomously’10 as a body which is independent of the executive and impartial from the parties and able to conduct procedure with judicial character.11 Although, the ECtHR has recognised the existence of the wider meaning of the word ‘judicial’ that encompasses the public prosecutors who in many European states can exercise ‘judicial power’,12 this meaning is not valid for the interpretation of the Convention. The ECtHR has in various cases expressly said that the prosecutor cannot be considered to exercise judicial power,13 does not have judicial status14 and has to be seen 8 9 10 11 12 13 14

English High Court in Assange v Swedish Prosecution Authority [2011] EWHC 2849, para 41. Contrary to the administrative authority. De Wilde, Ooms and Versyp v Belgia (1971) Series A no 012. Van der Leer v The Netherlands (1990) Series A no 170, para 27. De Wilde, Ooms and Versyp v Belgia (n 9), para 76; Van der Leer (n 10), para 78. Schiesser v Swiss (1979) Series A no 034, para 28. Nikolova v Bulgaria App no 31195/96 (ECtHR, 25 March 1999), paras 49–50. Niedbala v Poland App no 27915/95 (ECtHR, 4 July 2000), para 53.

990 Judicial Control in Pre-Trial Criminal Procedure as a party to the criminal proceedings.15 Confusion regarding Article 5(3) of the ECHR has been avoided in the German version of the Convention, where judicial power has been translated as ‘richterlicher Aufgaben’ and not ‘Justiziellen Aufgaben’.16 The second meaning of the word ‘judicial’ refers to the criminal justice system as a whole and include all authorities working in it, such as judicial authorities, prosecuting authorities, police, Ministry of Justice, administrative authorities and so on. This meaning is used in law on international legal assistance, EU law and national law implementing them. Thus, while the European Convention on Extradition of 1957 talks only about the ‘competent authority’, the European Convention on Mutual Assistance in Criminal Matters of 1959 uses the term ‘judicial authorities’ (Article 15). The EU instruments on judicial cooperation in criminal matters refer to the ‘competent judicial authority’, without defining it, leaving it to the national law of Member states. The issuing and executing competent judicial authorities in Member States include not only courts but all other law enforcement authorities, including prosecution office, administrative authorities, Ministry and police.17 Also, mutual recognition applies not only to judgments but also to other judicial decisions taken by judicial authority other than the court.18 Therefore, the expressions ‘judicial authority’, ‘judicial power’, ‘judicial guarantee’, ‘judicial control’, ‘judicial review’ have different meanings than in human rights law that can even be contrary to the requirements of the ECHR. Such wide interpretation of judicial authority was not the intention of the European legislators, as was the case with the Commission’s proposal of the Framework Decision on the European arrest warrant excluding the Ministry of Justice as the executing judicial authority19 and referring to the mutual recognition of court judgments.20 This linguistic misunderstanding can lead to problems in the implementation of EU law and potentially to the violation of the ECHR. The issue has caught public attention and became widely known in 2011 in the case Assange v Swedish Prosecution Authority before the English courts, where the lawyers for the founder of WikiLeaks argued that the European arrest warrant was invalid because it was issued by the public prosecutors, who are not ‘judicial authorities’.21 It is unfortunate that the EU, in its legal documents, is using English legal terms inconsistently with their meaning in the legal system of the English-speaking countries like the United Kingdom and United States.

15 Ibid, paras 53–54; Assenov and Others v Bulgaria App no 24760/94 (20 October 1998), paras 149–50; Shishkov v Bulgaria App no 38822/97 (ECtHR, 9 January 2003), paras 52–54; Danov v Bulgaria App no 56796/00 (ECtHR, 26 October 2006), para 75. 16 Art 5(3): ‘Jede Person, die nach Absatz 1 Buchstabe c von Festnahme oder Freiheitsentziehung betroffen ist, muss unverzüglich einem Richter oder einer anderen gesetzlich zur Wahrnehmung richterlicher Aufgaben ermächtigten Person vorgeführt werden.’ 17 Eg see Implementation of the Council Framework Decision 2005/214/JHA of 24 February 2005 of the application of the principle of mutual recognition to financial penalties—Information provided to the General Secretariat, Brussels, 21 January 2011, 16924/2/10. 18 See A Souminem, The Principle of Mutual Recognition in Cooperation in Criminal Matters (Cambridge, Intersentia, 2011) 23–24. 19 In Denmark and Germany the Ministry/Federal Minister of Justice is the executing authorities for EAW. See R Blekxtoon, Handbook on the European Arrest Warrant (The Hague, T M C Asser Press, 2005) 243. 20 Souminem (n 18) 24. 21 However, there were previous cases before the English, Scottish and Irish courts using the same argument (Enander v Governor of Brixton Prison [2005] EWHC 3036 (Admin), [2006] 1 CMLR 37; Goatley v HM Advocate [2006] HCJAC 55; Minister for Justice v Altaravicius (No 2) [2007] 2 IR 265). In all cases including Assange’s case the courts rejected these arguments.

Judicial Control of Investigative Measures 991 Despite, this confusion over the word ‘judicial’, the terms ‘judicial control’ and ‘judicial review’ are prevalently used as control and review exercised by the courts. The same is valid for this paper, where the word ‘judicial’ refers only to courts as defined by the ECtHR.

B. JUDICIAL CONTROL OF INVESTIGATIVE MEASURES

There are two major elements inherent to most investigative measures which activate the protective mechanisms of judicial control in criminal proceedings. One is the use of coercion and the other is using their results as evidence at the trial. The use of coercion implies the danger of illegal or unjustified interference with fundamental human rights, and the use of illegal evidence implies danger to a fair trial. These two elements are strongly connected, as in a majority of the Member States the illegal use of coercion in carrying out investigative measures will lead to the exclusion of evidence collected by it. However, the coercive and evidence-gathering investigative measures do not coincide, but overlap. There are investigative measures that are not coercive but whose result is evidence (eg questioning of witnesses). On the other hand there are coercive measures whose aim is not evidencegathering, but securing the presence of the defendant during criminal proceedings (eg bail, detention).22 Both types of judicial control of investigative measures have been recognised as human rights and proclaimed by the ECtHR as important guarantees against the abuse of state power and for securing the fairness of criminal proceedings.

1. The Judicial Control of Coercive Investigative Measures Most investigative measures involve an element of compulsion, and therefore have to be prescribed by law and subject to judicial control. The duty to prescribe all measures restricting individual rights by law requires that the procedural rules on the EPPO have to contain the exhaustive list of investigative measures and precise procedure to carry out each of them. In order to have an effective EPPO, this list has to include the entire range of investigative measures available in the national system to combat financial acts.23 The problems of the categorisation of investigative measures according to judicial involvement have been recognised and discussed in the existing EU/EC documents on the EPPO such as the Green Paper on the establishment of a European Prosecutor24 and the Corpus Juris study.25 The investigative measures from the point of judicial control can be classified in three main categories as follows: (a) measures exclusively at the prosecutor’s discretion, (b) measures subject to review by the courts, and (c) measures ordered by the court. The discretion of the prosecutor and the involvement of coercive power are inversely proportional—the discretion of the prosecutor diminishes with the intensity of coercive power. Due to

22 In some national systems, the first category is called the investigative acts or actions and the second the investigative measures. 23 Commission, ‘Green paper on criminal law protection of the Community and the establishment of a European Prosecutor’ COM (2001) 715 final, 49. 24 Green Paper (n 23), see point 6.2.3.1. a), b) and c). 25 Delmas-Marty, Vervaele (n 4).

992 Judicial Control in Pre-Trial Criminal Procedure interference of investigative measures with fundamental rights, the ECtHR has in many cases set the standard of judicial control. That will help the European legislator in modelling investigative measures for the EPPO. However, it will not be an easy task to group investigative measures into these three categories, as constitutions or procedural laws of the Member States often sets higher standards of judicial control than is required by the ECHR. Also, the measures which are very different from the point of timing and extent of judicial control in national systems are particularly sensitive. In these cases respect of minimum human rights protection laid down by the ECHR is not satisfactory for the procedural rules for the EPPO. They have to introduce high national standards at the European level in order to uphold the protection of human rights in national criminal procedure, which is a frequent reproach to the European policies in the criminal law sphere. (a) Measures at the EPPO’s Discretion The prosecutor can order only measures that involve no coercive powers such as asking for personal data, collecting information (eg documents, computerised data), questioning of accused or witness. These measures impinge on certain human rights, eg collecting private data can interfere with the right to respect for private life, but the low level of intrusiveness or lower degree of limitation of certain rights justifies their use at the prosecutor’s discretion and does not require judicial remedy during the investigation. However, if they serve for evidence-gathering, the procedural rules on their performance need to include other forms of control, such as procedural guarantees, defence rights, filming, presence or participation of defence lawyer, and so on. Whether the EPPO has respected all the prescribed protective procedural rules will be subject to judicial control relating to admissibility of evidence.26 The Green Paper cast doubt on whether visits to firms belongs in this category, as a warrant is not required by the law of all the Member States.27 Although, the Green Paper talks about visits to firms, and not about search or seizure, it is doubtful whether it is justified to envisage separate power of the EPPO to visit firms without any judicial control. Such a solution would be unconvincing on the one hand with regard to aim of such a measure, which is mostly search and seizure, and on the other hand with regard to the high protection of privacy of legal persons given not only by the ECtHR but by the national criminal procedural law that in many countries requires a judicial order in order to visit and search firms. (b) Measures Ordered by the EPPO and Subject to Judicial Review In this category are investigative measures that involve coercive powers that can be executed without prior judicial authorisation. The ex post judicial control can be either optional at the request of the affected person, or obligatory when the prosecutor has to submit ex officio his/her order to the court for authorisation. The latter is usually applied for the measures which regularly require prior judicial authorisation, but exceptionally in emergency situations can be carried out without it if they are in short time submitted to judicial

26 27

See here section B2(b). Green Paper (n 23) 51.

Judicial Control of Investigative Measures 993 approval. The powers of the EPPO from this category should be subject to judicial remedy and it is possible that in emergency situations the EPPO can order certain judicial measures for short periods of time. The investigative measures in this category are summons, compulsory appearance, arrest, identification measures such as taking photographs, fingerprints and biometric samples, than identification, inspection and sealing of means of transportation, seizure of documents and objects, tracking and tracing, controlled or supervised deliveries. The comparison with the list of measures placed in this category in the Green Paper and the Corpus Juris study reveals that this is the most challenging category. The Green Paper has permitted that the measures such as house searches, freezing of assets and interception of communications, covert investigations could be ordered by the EPPO with subsequent judicial authorisation if it is so provided by the national law of the forum (judge of freedom).28 The Corpus Juris is more human rights oriented than the Commission’s Green Paper and permits searches and telephone tapping only in urgent cases (Article 20(3.d)) with an a posteriori check by the judge of freedoms within 24 hours (Article 25bis(2)).29 However, both solutions may run counter to the constitutional and criminal procedural law of the Member States that require mandatory prior judicial authorisation. The European regulation on the EPPO should respect high national standards and these measures should be ordered only upon judicial order and therefore moved to the following category. On the other side, the measures such as arrest and compulsory appearance that are in the Green Paper and the Corpus Juris classified as exclusively judicial measures should be placed in this category. Namely, the Corpus Juris prescribes that the judge of freedoms, having examined the request of the EPPO and all evidence and information provided by the prosecutor, issues a European arrest warrant. However, in national legal systems the competent authority for the arrest or compulsory appearance in the majority of cases is police or prosecutor. The same is true for the European arrest warrant, as many Member States have designated public prosecutors as issuing judicial authorities. Arrest shall be executed on the order of the court only if there is a court warrant for pre-trial detention or compulsory appearance in case when suspect/accused fails to answer a court summon. The emergency nature and short duration of the arrest justify the competence of the EPPO to issue an arrest warrant without the decision of the judge. This solution is in accordance with Article 5 ECHR, as it does not guarantee that the arrest has to be executed on the ground of a court decision but that the arrested person has to be brought promptly before a judge. (c) Measures Ordered by the Court Investigative measures which represent serious interference with fundamental human rights can be ordered only by the court. The list of these measures is certainly longer in national criminal procedures and even according to the case law of the ECtHR than in the Green Paper. It proposes that only measures restricting or depriving of personal liberty such as arrest warrant, probation order or custody order should be at the request of the EPPO ordered by the judge.30 For all other measures, the national law of the issuing 28 29 30

See Green Paper (n 23) 51. Delmas-Marty, Vervaele (n 4) 199, 202, 212. Green Paper (n 23) 52.

994 Judicial Control in Pre-Trial Criminal Procedure Member State is relevant, meaning that if that law does not require judicial order but only judicial review, this has to be recognised in all Member States.31 The Green Paper has given priority to the principle of mutual recognition over the principle of judicial protection of fundamental human rights. It has respected only the minimum standards set by Article 5(3) of the ECHR, that only a judge can order detention. The EPPO should be more in line with the Corpus Juris, which requires that throughout the investigation the prior approval of the judge of freedoms is needed for any measure which has the effect of restricting or depriving a person of the rights and fundamental freedoms laid down in the ECHR (Article 25bis(2)). Therefore, the measures ordered by the court must include searches, sealing of premises and objects, physical examination and taking blood samples and DNA samples, freezing of assets, interception of communications, covert investigations, psychiatric examination. For some of these measures, in urgent situations, after-the-event judicial authorisation can exceptionally be permitted. However, this should not be the case for house searches, physical examination, taking DNA samples, psychiatric examination. One measure under discussion is searches of business premises, which are not subject to a court order in all Member States. However, legal persons are directly protected by Article 8 of the ECHR, which guarantees the right to respect for private life.32 The ECtHR has stated that a judicial warrant is an important safeguard against abuse of search and seizure.33 The Member States are giving high protection of privacy of legal persons from searches requiring by their national criminal procedural law the prior court order for the search of legal persons. The freezing of assets and sealing interferes quite severely with the right to property. Measures such as taking DNA samples, ordering psychiatric examination and covert visual and audio recording are among the most invasive measures in criminal procedure. For such measures as well as for all covert measures against which it is impossible to ensure effective remedy, the court order reduces danger of misuse and ensures effective mechanism of control.

2. Judicial Control of Evidence Gathering in the Pre-Trial Procedure The investigation is certainly the most intensive evidence-gathering stage of the contemporary criminal procedure. The investigative measures produce the evidence that is admitted by the trial court. As the initial stage of the proceedings can be crucial for evidence-gathering and discovering new facts, the procedural guarantees and defence rights inherent to a fair trial are applicable also to pre-trial proceedings.34 The important task of the court in criminal proceedings is to check the legality of the investigation measures that are mostly taken by police and prosecutor. The breach of fundamental rights in performance of

31

Ibid 51. In Niemitz v Germany (1992) Series A no 251 B, the ECtHR extended the notion of private life to business and professional activities and the term home to office; in Crémieux v France (1993) Series A no 256 B and Miailhe v France (1993) Series A 256 C, it established that a search of business premises violated Art 8, and in Société Colas est and others v France App no 37971/97 (ECtHR, 16 April 2002), following the case law of the European Court of Justice in case Hoechst v Commission in 1989, the ECtHR established the legal standing or the procedural capacity of legal persons regarding Art 8. 33 Crémieux v France (n 32), para 40; Miailhe v France (n 32), para 38. 34 Can v Austria (1984) Series A no 096, para 55; Natunen v Finland App no 21022/04 (ECtHR, 31 March 2009), para 48. 32

Judicial Control of Investigative Measures 995 investigative measures can lead to the exclusion of obtained evidence as inadmissible. The legal principle that evidence collected in violation of fundamental rights cannot be used against the suspect is called the exclusionary rule. The judicial control of the legality of the evidence in national and supranational legal systems has two main objectives. One is to dissuade prosecuting authorities from abuse of power and breaching procedural rules for the protection of fundamental rights, and the other is to preserve the principle of fair trial. The evidence law of the Member States is very diverse35 and includes differing scopes of application of the exclusionary rule.36 In the majority of European states, evidence obtained in violation of fundamental rights (particularly personal integrity or defence rights) is inadmissible ex lege.37 The exclusionary rule for illegal evidence is prescribed by law, and the court cannot decide to use it despite its probative value. In some states the exclusionary rule is applied ex iudicio, ie the judges shall in each case applying the principle of proportionality decide whether evidence is admissible.38 However, closed analysis shows that all European states today have a mixed system of ex lege and ex iudicio exclusion of evidence, and the broader or narrower discretion of the judges to exclude illegal evidence depends on the extent of illegal evidence whose use is prohibited by law. Generally, the European states protect human rights through the exclusionary rule in criminal proceedings more than is required by Article 6 of the ECHR. The issue of the admissibility of evidence collected by the EPPO before the national courts is a conundrum for the establishment of the EPPO, one that is thus far unanswered. The reason on the one hand is its prime importance for the effectiveness of the EPPO, and on the other hand the complexity and diversity of the evidence law in the Member States. The rules on admissibility of evidence in national criminal proceedings are very sensitive and crucial for national legal orders as admissibility touches upon basic human rights protected by national constitutions. In some states the prohibition of the use of illegal evidence has constitutional rank. It is not possible to deal with this subject here in extenso, but only to point out some difficulties related to judicial control of the legality of the evidence collected by the EPPO. (a) Case Law of the ECtHR on the Admissibility of Evidence As a rule, the issue of the admissibility of evidence is left to national courts. This has been confirmed by the ECtHR claiming that the use of illegally obtained evidence in the criminal trial is a matter essentially left to the regulation of national law.39 However, the role of the ECtHR is not to determine whether particular types of evidence may be admissible, but whether the proceedings as a whole, including the way in which the evidence was obtained, 35 See M Delmas-Marty ‘Necessity, legitimacy and feasibility of the Corpus Juris’ in M Delmas-Marty, JAE Vervaele (eds), The Implementation of the Corpus Juris in the Member states, vol 1 (Antwerp, Intersentia, 2000) 26–28. 36 See EU Network of Independent Experts on Fundamental rights (CFR-CDF), ‘Opinion on the status on illegally obtained evidence in criminal procedures in the Member States of the European Union’ (CFR-CDF, 30 Novermber 2003). http://cridho.cpdr.ucl.ac.be/documents/Avis.CFR-CDF/Avis2003/CFR-CDF.opinion3-2003. pdf. 37 Austria, Bulgaria, Czech Republic, Estonia, France, Greece, Hungary, Italy, Latvia, Luxembourg, Romania, Slovenia, Spain, Scotland. See respective national reports in this book. 38 Denmark, Finland, Ireland, Netherlands, Malta, Sweden, England and Wales. See respective national reports in this book. 39 Schenk v Switzerland (1988) Series A no 140, para 46.

996 Judicial Control in Pre-Trial Criminal Procedure were fair.40 Despite adherence to the principle of subsidiarity when it comes to the law of evidence, the ECHR and the case law of its court have set out some rules regarding: (a) admissibility of evidence, (b) influence of the illegal evidence on the fairness of the trial, and (c) challenging the use of evidence. (i) The Exclusionary Rule in the Case Law of the ECtHR As concerns the admissibility of evidence, the only exclusionary rule that has been introduced at international level relates to the evidence obtained by torture (UN Convention against torture, Article 15). The ECtHR has established that incriminating evidence (confession and real evidence) obtained by torture will render the trial unfair, irrespective of its probative value and irrespective of whether their use was decisive in securing the defendant’s conviction.41 However, this has not been extended to the other forms of violation of Article 3 of the ECHR. In the case of inhumane and degrading treatment or punishment, a criminal trial’s fairness will be breached only if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or her conviction or sentence.42 The ECtHR has accepted the Anglo-American reasoning behind the exclusionary rule. The use of evidence obtained by breach of Article 3 would not only sacrifice values and discredit the administration of justice, but might be an incentive for law-enforcement officers to use such methods.43 (ii) The Influence of the Illegal Evidence on the Fairness of the Trial The use of any other illegal evidence will lead to the violation of Article 6 of the ECHR only if it has rendered a trial unfair as a whole. Even use of evidence obtained in violation of other rights guaranteed by the Convention such as Article 8 will not compromise automatically the requirement of the fairness of the trial.44 The question of whether the use of illegal evidence rendered a trial as a whole unfair has to be determined with regard to all the circumstances of the case. However, there are rights to which the ECtHR attach particular consideration such as the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination which lie at the heart of the notion of fair procedures.45 The rights of defence under Article 6(3) are to be seen as particular aspect of the right to a fair trial guaranteed by Article 6(1), and their violation can undermine the trial’s fairness. According to Article 6(3d) the trial will not satisfy the fairness requirement if the defendant does not have opportunity to examine witnesses against him/her or co-defendants.46 Also, if there was no violation of the fundamental right but if the circumstances in which the

40 Kahn v UK App no 35394/97 (ECtHR, 12 May 2000), para 34; P G and J H v UK App no 44787/98 (ECtHR, 25 September 2001), para 76. 41 Jalloh v Germany App no 54810/00 (ECtHR, 11 July 2006), para 105; Harutyunyan v Armenia App no 36549/03 (ECtHR, 20 June 2007), para 113. 42 Gäfgen v Germany App no 22978/05 (ECtHR, 30 June 2010), para 178. 43 Ibid paras 176 and 178. 44 Kahn v UK (n 40); P G and J H v UK (n 40); Bykov v Russia App no 4378/02 (ECtHR, 10 March 2009). 45 Funke v France (1993) Series A no 256 A; Saunders v UK App no 19187/91 (ECtHR, 17 December 1996), Jalloh v Germany (n 41). 46 Barberà, Messegué and Jabardo v Spain (1988) Series A no 146, para 78; Isgrò v Italy (1991) Series A no 194 A, para 34; Lüdi v Switzerland (1992) Series A no 238, para 49; Ferrantelli and Santangelo v Italy App no 19874/92 (ECtHR, 7 August 1996), para 51; Van Mechelen and others v Netherland App no 21363/93, 21364/93, 22056/93 (ECtHR, 23 April 1997), para 51.

Judicial Control of Investigative Measures 997 evidence was obtained cast doubt on its reliability or accuracy, the fairness of the trial can be compromised.47 (iii) Remedy to Challenge the Legality and the Use of Evidence Except for the violation of Article 3 of the ECHR, the ECtHR claims that the proceedings as a whole can be fair despite the use of illegal evidence, if the rights of the defence have been respected. The ECtHR has introduced two procedural requirements for the fairness of the trial if illegal evidence has been used. The first is the existence of the remedy for challenging the legality of evidence. The defence has to be given the opportunity of challenging the authenticity of the evidence and of opposing its use at trial.48 The second issue is whether the illegal evidence alone was decisive for the outcome of proceedings.49 If defence rights have been respected and the illegal evidence is not decisive for the establishment of the defendant’s guilt, the use of illegal evidence will not render the trial unfair. (b) Judicial Control of Evidence Gathering by the EPPO In order for the EPPO to run effective investigations it is necessary that the results of its measures are admitted as evidence in the national courts. This follows from the principle of European territoriality. If the warrants for investigative measures should be executable over the whole territory of the EU, their results should also be admissible over the whole territory of the EU. However, as national rules on admissibility of evidence are very different and there is no European consensus about the scope of application of the exclusionary rule, the rule on mandatory admissibility of EPPO evidence is hard to achieve. Solutions for this problem have been offered by the Green Paper and the Corpus Juris. (i) The Admissibility of Evidence in the Green Paper and the Corpus Juris The Green Paper has accepted the concept of mutual admissibility of evidence—evidence lawfully gathered by one Member State’s authorities should be admissible before the courts of other Member States.50 This means that evidence lawfully obtained by investigative measures executed in one Member State should be admissible in the Member State of trial even when it is contrary to its rules on evidence. The rules governing exclusion would be those of the Member State in which the evidence was obtained. That presupposes that the trial courts have to be familiar with the rules of evidence in the other Member States.51 The concept of the mutual admissibility of evidence was strongly criticised from the human rights point of view.52

47

Bykov v Russia (n 44), para 90; Lisica v Croatia App no 20100/06 (ECtHR, 25 February 2010), para 60. PG and JH v UK (n 40), paras 77 and 79; Allan v UK App no 48539/99 (ECtHR, 5 November 2011), para 42 and 43; Bykov v Russia (n 44), para 90. 49 Schenk v Switzerland (n 39) 48; Kahn v UK (n 40) paras 35 and 37; Gäfgen v Germany (n 42) 164. 50 Tampere European Council of 15 and 16 October 1999, Tampere Conclusions, para 36. 51 The Green Paper (n 23) 59. 52 BR Killmann, M Hofmann, ‘Perspektiven für eine Europäische Staatsanwaltschaft’ in U Sieber and others (eds) Europäisches Strafrecht (Baden-Baden, Nomos, 2011) 764. It was rejected as contrary to human rights standards. See S Gless, ‘Zum Prinzip der gegenseitigen Anerkennung’ (2004) 116 Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 353–67. 48

998 Judicial Control in Pre-Trial Criminal Procedure The shortcomings of this solution, as has been pointed out in the Corpus Juris study, are discrimination and ineffectiveness.53 On the one hand, the use of evidence will depend on the country where evidence was obtained, which leads to discrimination. On the other hand, the trial court will be forced to find evidence inadmissible that would otherwise have been admissible, in cases where the evidence was unlawfully obtained in one state, yet conforms to the procedural rules of the country of trial; or although it was unlawful in both states, it would not lead to the inadmissibility in the country of trial.54 In these cases, in comparison to the existing national law on evidence in transnational cases, the application of the proposed concept of mutual admissibility of evidence would lead to the ineffectiveness. The Corpus Juris seek to resolve these shortcomings by (a) prescribing the procedural rules, and particularly defence rights for obtaining evidence, in line with the fundamental rights enshrined in the ECHR (Article 32(1)), (b) broadening the range of evidence considered admissible, including evidence admissible under the national law of the court of judgment (Article 32(2)), and (c) introducing an exclusionary rule only in case where illegal evidence would undermine the fairness of the proceedings (Article 33).55 The first solution is welcome and should be followed while devising the rules on admissibility of evidence for the future EPPO. The second is no longer applicable as the admissibility of evidence collected by the EPPO will be unified by the Council regulation (Article 86(3) of the Lisbon Treaty). The third solution should be rejected. Introducing an exclusionary rule only if illegal evidence would render the trial unfair as a whole, thus copying the assessment criteria of the ECtHR, would mean abolition of national rules on admissibility of evidence and show disrespect for protection of human rights in national legal orders. The national criminal courts are not constitutional courts or international human rights courts. The former decide on the violation of criminal procedural law, and the later on violation of the constitutional or convention rights. The national courts, in the course of criminal proceedings, prevent, by exclusion of illegal evidence at any stage of proceedings, the violation of fundamental rights and unfair practice and trials. The ECtHR decides when criminal proceedings have been final on the fairness of the prosecution as a whole. In certain stages of proceedings it is not possible to estimate whether certain evidence will render the proceedings unfair as a whole, while their exclusion can prevent such a result. Additionally, the aim of the exclusionary rule at the national level is not only to preserve a fair trial, but also to protect other fundamental human rights from arbitrary repression of the state authorities. Therefore, it is unacceptable to bypass rules of national criminal procedural law that prescribe exclusionary rules as a sanction to the authorities for violating its provisions, by proclaiming that the exclusionary rule can be used only if constitutional and convention rights to fair trial are violated. Such a solution also undermines a vital public interest in preserving the integrity of the judicial process and values of civilised societies founded on the rule of law.56 It overvalues the interest of the effective prosecution of EU fraud at the expense of violation of basic human rights. 53 54 55 56

Delmas-Marty (n 35) 29–30. Spencer, see Corpus Juris study, 28. Delmas-Marty, Vervaele (n 4) 209. Gäfgen v Germany (n 42), para 175.

Judicial Control of Investigative Measures 999 (ii) The Admissibility of Evidence for the EPPO The EPPO, according to the Lisbon Treaty, is not dependent on national rules of admissibility of evidence. Article 86(3) prescribes that the Council’s regulations shall determine the rules of procedure governing the admissibility of evidence. These rules have to determine which breach of procedural provisions on the EPPO regulating investigation measures and defence rights will lead to the inadmissibility of evidence or their exclusion. The unification of the rules of admissibility and of exclusion is, according to the Corpus Juris study, the only way to avoid the risks of discrimination and ineffectiveness.57 The consequence of such rules will be that the national courts cannot decide that evidence gathered in accordance with them is inadmissible as illegal or improperly obtained, despite the fact that such evidence has not been gathered in accordance with national rules. The primacy of international or supranational rules of admissibility of evidence is well-known in the legal systems that take over cases from the international criminal courts. Thus, the evidence lawfully collected by the Prosecutor’s Office of the International Criminal Court for ex-Yugoslavia, for instance, cannot be found inadmissible in national courts to which the case has been referred.58 However, as the ECtHR requires that the defence must have the opportunity of challenging the admission and use of evidence at the trial, before the trial court, the European rules cannot provide for the judicial control of evidence collected by the EPPO only in pre-trial procedure and forbid it in the later stage of the proceedings. There must be a remedy for the defendant to challenge the legality and credibility of the evidence collected by the EPPO and opposes its use before the national trial court. However, national courts have to decide whether evidence is admissible not according to national rules on admissibility, but on the basis of the European rules on investigation measures and admissibility of evidence. In order to fulfil the obligations under Article 6 of the Treaty to respect general principles of EU law that include fundamental rights, as guaranteed by the ECHR and the constitutional traditions common to the Member States, the European rules governing investigative measures and admissibility and exclusion of evidence have to follow the highest European standards for the protection of human rights and defence rights. That means that the European regulation on the EPPO has to guarantee fair trial rights and defence rights in the stage of investigation and while carrying out every investigative measure. The consequence of breach of the procedural rule for the EPPO ensuring fundamental rights should be exclusion of evidence. Only respect of high human rights and defence rights standards in collection of evidence can justify and upheld the introduction of a non-exclusionary rule in respect of evidence collected by the EPPO in national criminal proceedings. The reasoning is not only the broad exclusionary rule in case of human rights violation sometimes constitutionally ensured in the Member States, but also the case law of the ECtHR. Namely, if defence rights are not guaranteed in the pre-trial procedure it is not always possible to know in the pre-trial stage of the proceedings whether certain evidence is admissible or should it 57

Delmas-Marty (n 25) 30. Eg the Croatian Law on Application of the Statute of the International Criminal Court and on Prosecution of Crimes against International Humanitarian Law prescribes that evidence collected by the body of the International Criminal Court can be used in criminal proceedings in the Republic of Croatia on the condition that the evidence has been obtained in the manner prescribed by the Statute and Rules of Procedure and Evidence of the International Criminal Court and that can be used before the Tribunal (Art 28(3)). 58

1000 Judicial Control in Pre-Trial Criminal Procedure be excluded. In these cases the decision on admissibility has to be made at the trial by the national court. The example for such situation is witness testimony. (iii) Admissibility of the Witness Statements Collected by the EPPO The right to examine or have examined prosecution witnesses is one of the minimum rights of defence to guarantee a fair trial (Article 6(3d) ECHR). The ECtHR has said that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument.59 The use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with Article 6(3)(d), provided the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him/her, either when s/he was making his/her statements or at a later stage of the proceedings.60 The Court added that Article 6 of the ECHR will be violated if the conviction is based solely or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or have examined either during the investigation or at trial.61 There is no consensus in the national criminal procedures whether the defence layer should be present and allowed to ask questions at the questioning of the witness in the investigation. In many states, the police or the prosecutor can question the witness without the presence of the defence lawyer. However, in some states with prosecutorial investigation, probably having in mind the case law of the ECtHR, the defence lawyer of the suspect is allowed to participate in the questioning of the witness. Also, in Austria, Lithuania and Portugal, probably as a residuum of abolished judicial investigation, the witness is questioned in an adversarial hearing before the judge.62 The same solution was proposed by the Corpus Juris, which prescribed that the witness must be examined before a judge with the participation of the EPPO and the defence lawyer and hearing should be recorded on video (Article 32(1)(a)).63 From the perspective of effectiveness, it can be desirable that at the pre-trial stage the EPPO questions the witnesses without the presence of the defence. However, if the defendant did not have an opportunity to question a witness against him/her at the trial (eg because s/he is dead, incapable to testify, did not appear), and the EPPO questioned the witness alone, the introduction of the non-exclusionary rule will run counter to the case law of the ECtHR. If the regulation envisages that the EPPO can question the witness alone, witness statements will be taken in accordance with the regulation but possibly contrary to the ECHR. Namely, it is not possible to know in the pre-trial procedure whether the defendant will have later at trial possibility to examine witness. Therefore, the only way to prescribe mandatory admissibility of testimony taken by the EPPO is to guarantee the defence right to examine prosecution witness in the investigation. The national trial court

59

Barberà, Messegué and Jabardo v Spain (n 46) 78. Unterpertinger v Austria (1986) Series A no 110, para 31; Kostovski v Netherlands (1989) Series A no 166, para 41; Isgrò v Italy (n 46), para 34; Lüdi v Switzerland (n 46), para 49; Ferrantelli and Santangelo v Italy (n 46), para 51; Van Mechelen and others v Netherlands (n 46), para 51. 61 AM v Italy App no 37019/97 (ECtHR, 14 December 1999), paras 25–26; Sadak and others v Turky App no 25144/94, 26149/95, 27100/95, 27101/95 (ECtHR, 11 June 2003), para 66; Solakov v Macedonia App no 47023/99 (ECtHR, 31 October 2001), para 58. 62 See respective reports. 63 Delmas-Marty, Vervaele (n 4) 209. 60

Judicial Control of Prosecutorial Decisions 1001 cannot be forced to recognise as admissible evidence collected contrary to the fundamental defence right and thus violating the ECHR.

C. JUDICIAL CONTROL OF PROSECUTORIAL DECISIONS

This kind of judicial control relates to the very function of the prosecutor, and that is to undertake the acts of prosecution. It does not deal with the single investigation measures but the legality of the criminal procedure in the stage of investigation against certain person. It concerns decisions to instigate, continue and discontinue criminal prosecution. The question is whether the prosecutorial decision of the EPPO should be subject to judicial control in pre-trial procedure, and if so when, by whom, and what kind of control. There are three major forms of judicial control of prosecutorial activities: (a) individual responsibility of a prosecutor, (b) judicial review of the indictment, and (c) judicial control of the prosecutorial investigation.

1. Types of Judicial Control of Prosecutorial Decisions (a) Individual Responsibility of a Prosecutor Individual responsibility of a prosecutor for an illegal decision related to prosecution can be disciplinary, criminal and/or civil responsibility. The EPPO shall have disciplinary liability, as other Union servants before the European Court of Justice.64 Removal from office and other professional sanctions for the EPPO, in order to protect his/her independence, can be taken only by a Union-level court.65 A first instance jurisdiction in disputes between the Union and its servants shall be exercised by the European Union Civil Service Tribunal, which is a specialised tribunal within the Court of Justice. As this issue relates to the institutional aspect of the EPPO, here it will not be discussed further. However, it should be emphasised that the issue of individual responsibility of a prosecutor for prosecutorial decisions and the issue of the legal remedy before the court against the prosecutorial decisions can be interdependent, as both can deal with the abuse of authority. (b) Judicial Review of the Decision to Commit a Case to Trial After the investigation is closed, the decision of the prosecutor to institute prosecution is subject to judicial review before the case is committed to trial. The aim of this is to decide whether there is sufficient and admissible evidence for charges, and thus to prevent the burden of trial where conviction is not likely. The judicial review of indictment before trial exists in the systems with prosecutorial as well as judicial investigation. However, in case of prosecutorial investigation, the judicial control of indictment is more comprehensive and as

64 Art 270 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/1: ‘The Court of Justice of the European Union shall have jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union.’ 65 Green Paper (n 23) 28.

1002 Judicial Control in Pre-Trial Criminal Procedure a rule mandatory, while after judicial investigation it can be dependent on the defendant’s discretion. As judicial control of committal to trial is generally accepted, this type of judicial control of the EPPO is not a controversial issue and it was envisaged in the Corpus Juris and the Green Paper.66 According the Corpus Juris, the judge of freedoms brings a case to the trial judge, following a request from the EPPO. However, it was recognised that the best solution would be the creation of the European pre-trial chamber.67 However, the Lisbon Treaty does not constitute the necessary legal basis for the establishment of a European criminal court or chamber. (c) Judicial Control of the Prosecutorial Investigation While two previous types of judicial control of prosecutorial decisions are uncontroversial, that is not the case with judicial control of prosecutorial function during investigation. The issue is whether (and which) prosecutorial decisions of the EPPO should be subject to judicial control in pre-trial procedure. Should the legality of the instigation, continuation and discontinuation, including settlements, of criminal prosecution against certain person be subject to judicial control? In the criminal justice systems where judicial bodies (eg investigative judges) conduct the investigation, the issue of judicial control is the main principle for the construction of the pre-trial procedure. The court on the request of the prosecutor decides on instigation, conducts and discontinues procedure. Change of the subject with investigative function from the judge to prosecutor results with the loss of implicit judicial protection of individual rights. In systems with prosecutorial investigation there are two opposite standpoints and legal regimes as regards the judicial control of the criminal prosecution in pre-trial procedure. On the one hand, there are systems where the function of criminal prosecution in pre-trial procedure is not subject to judicial control. The decision to instigate or not to instigate criminal prosecution, investigation of the facts and extent of criminal prosecution is entrusted only to the public prosecutor. On the other hand, are systems where the function of criminal prosecution in pre-trial procedure is from its beginning subject to judicial control and the individual can challenge the legality of prosecutorial decisions before the court. This kind of control shall be the subject of the further analysis, which shall comprise the analysis of the case law of the European Court of Human Rights and the European Court of Justice and comparative analysis of two criminal procedures with opposite solutions in this respect.

2. Case Law of the ECtHR and ECJ on the Judicial Control of Investigation (a) Decision to Prosecute Until now, the ECtHR has not set up the explicit requirement for judicial control of investigative stage of criminal proceedings. However, it did assess the legality of the institution and duration of the prosecutorial investigation in different cases. One type of case refers to the violation of Article 5(1) of the Convention and the right to liberty from arrest 66 67

Green Paper (n 23) 60–61. Delmas-Marty, Vervaele (n 4) 50–53.

Judicial Control of Prosecutorial Decisions 1003 due to absence of reasonable suspicion of having committed an offence. The Court has simultaneously decided about the legality of arrest and the existence of the legal requirements to institute criminal proceedings or investigation as this was one of the requirements for arrest. In Stepuleac v Moldova in 2007,68 the applicant complained that he had been arrested without a reasonable suspicion of having committed a crime, and that the decision to initiate the criminal investigation was ungrounded (§ 66). The ECtHR assessed the existence of the initial suspicion against a person and the ground of prosecutorial decision to initiate criminal investigation. The Court said that ‘Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence’ (§ 68).69 After determining that none of the courts examining the prosecutor’s action dealt with the issue of whether there was a reasonable suspicion that the applicant had committed a crime, in the absence of an express domestic review the ECtHR conducted its own review (§ 69). It determined the absence of any ground for initiation of the criminal investigation against the applicant, and that it is unclear why the applicant’s name was included in the prosecutorial decision at the very start of the investigation before further evidence could be obtained (§ 70). This supports the claim that the investigating authorities did not genuinely verify the facts in order to determine the existence of a reasonable suspicion that the applicant had committed a crime (§ 73). Although the Court has examined the reasonable suspicion of having committed an offence from the aspect of deprivation of liberty by arrest, it is clear that it has also established it as the ground for initiation of criminal investigation. Prosecutorial decisions on initiation of a criminal investigation have to be based on the ‘facts or information which would satisfy an objective observer’ that a suspect may have committed the offence. As such, they are objective, verifiable and subject to judicial control. The second type of cases in which the ECtHR has examined the legality and proportionality of the initiation and duration of criminal investigation is while assessing the respect of right to trial within the reasonable time. One of the assessment criteria is the conduct of the authority in proceedings. Due administration of justice is the state’s responsibility, and delays may occur in any stage of proceedings, including pre-investigation,70 or investigation,71 which from the aspect of the European Convention are a part of criminal proceedings, notwithstanding the official legal terminology in national law. (b) Decision not to Prosecute Beside the decision to prosecute, the prosecutor’s decision not to prosecute can also be subjected to judicial control. The susceptibility of decision to drop the case to judicial

68

Stepuleac v Moldova App no 8207/06 (ECtHR, 6 November 2007). See also Leva v Moldova App no 1244/05 (ECtHR, 15 December 2009). 70 Corgliano v Italy (1982) Series A no 057. The Court has concluded that at the stage of the preliminary investigation at Messina the proceedings brought against Mr Corigliano were subject to delays incompatible with Art 6, para 1 (Art 6-1) (para 50), especially due unjustified delays during two periods, the first of 13 months the second of 14 months (22 March 1974 to 22 April 1975 and 22 December 1975 to 19 February 1977) with the absence of any measures of preliminary investigation (para 47). 71 Teinhardt and Slimane-Kaid v France App no 23043/93, 22921/93 (ECtHR, 31 March 1998), para 100; Pelissier and Sasi v France App no 25444/94 (ECtHR, 25 March 1999), para 73. 69

1004 Judicial Control in Pre-Trial Criminal Procedure control originates from the state’s obligation to prosecute and punish perpetrators of criminal offences establish by the ECtHR and the European Court of Justice (ECJ). (i) European Court of Human Rights In order to protect rights guaranteed by the Convention the ECtHR has established procedural obligation of the states to conduct effective investigation in case of violation of certain substantive rights under the Convention. The state’s obligation to prosecute is part of the right to life, prohibition of torture and right to respect personal life (Articles 2, 3 and 8), and the prosecutorial decision not to prosecute can violate the procedural obligations under respective Articles.72 The ECtHR may examine whether the investigation was sufficiently thorough, expedient and effective to satisfy the procedural obligation of the state. This obligation can be violated by different omissions of state investigative authorities, such as a delay to carry out investigative measures, controversial and arbitrary evaluation of evidence by the prosecutor, and so on.73 Therefore, although the ECtHR did not expressly establish the right of the suspect to judicial review of the decision to initiate and conduct investigation on the national level, it has in numerous cases assessed the requirements for initiation, justification and duration of investigation. Hence it has not only established the supranational judicial control of prosecutorial decision but has also proven its susceptibility to judicial control and link to basic human rights. Furthermore, according to Article 13 of the ECHR, everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority. If decisions to prosecute or not to prosecute, or the duration or way on which the investigation is conducted, can violate certain human rights guaranteed in the Convention, than the state has to give that person an effective remedy before a national authority. The judicial control of the acts of prosecution represents such effective remedy. (ii) European Court of Justice In order to protect the legal order of the European Community, the ECJ has established the enforcement obligation of the state to conduct criminal proceedings in the famous the Commission v Greece case (the Greek Maize case).74 In 1989 the ECJ established that the principle of loyalty enshrined in Article 10 of the EC Treaty75 included the duty of the Member State to prosecute and penalise infringements of Community law in the same way as infringements of national law (the principle of assimilation). The general obligation of Member States to enforce the legal order of the Community by criminal sanctions implies institution of prosecution and investigation in order to convict and punish the perpetrators. In this case the ECJ established that Greece, by failing to institute criminal or disciplinary proceedings against persons who had taken part in and helped to conceal Community fraud by evasion of

72 See D Friedman, ‘Art 2: The right to life’ in J Simor, B Emmerson (eds) Human Rights Practice (London, Sweet & Maxwell, 2000) para 2.007. 73 Mikheyev v Russia App no 77617/01 (ECtHR, 26 January 2006), paras 102–21. 74 Case C-68/88, Commission of the European Communities v Hellenic Republic [1989] ECR I-2965. 75 ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community.’

Judicial Control of Prosecutorial Decisions 1005 import duties,76 had failed to fulfil its obligation under Article 10 of the EC Treaty. Another similar case is the French strawberries case,77 where France was convicted because it had not undertaken adequate investigations and prosecutions against French farmers who had vandalised Spanish trucks carrying fruit and vegetables.78

3. Two Opposite Solutions to Judicial Control of Prosecutorial Decisions The German and Austrian Criminal Procedure Acts (CPA) from 2008 laid down prosecutorial investigation. However, in regard to the judicial control of prosecutorial decisions to initiate and conduct criminal prosecution and investigation, the solutions adopted in these two countries are opposite. (a) Germany: The Function of Prosecution is not Subject to Judicial Control One example of the concept where the prosecutor is absolute sovereign of criminal prosecution and investigation in the preliminary proceedings, and where there is no judicial supervision, is the German investigation (Ermittlungsverfahren). Decisions on the initiation of investigation, its scope and the investigation of the facts are entrusted exclusively with the prosecutor. German case law has taken the stance that Article 19 § 4 of German Basic Law, which reads: ‘Should any person’s rights be violated by public authority, s/he may have recourse to the courts’, does not apply to judicial review of the legality of the initiation and continuation of the investigation, despite the existence of the request of the respective person for its discontinuance.79 The German Constitutional Court has decided that the judicial control of the existence of ‘public interest’ for criminal prosecution based on Article 19 § 4 of the German Basic Law is not permitted.80 The dominant opinion in Germany is that investigation is just the set of ‘independent individual measures’ that yet do not influence the legal position of the defendant.81 Principally, measures in the investigative stage do not have decisive but only preparatory character, as they prepare the final decision to file an indictment or to discontinue the proceedings.82 Therefore, it is considered that the defendant’s rights are not violated by

76 In May 1986, a Greek company called ITCO exported maize in two ships from Greece to Belgium. Although the maize was of Yugoslav origin, according to the paperwork it was of Greek origin. As a result, the authorities did not impose the agricultural levy normally due to be imposed on agricultural products originating from a non-member country. The investigation carried out by the Commission showed that fraud had been committed with the complicity of some Greek civil servants, and that a number of senior civil servants had issued false documents and made false statements to conceal it. The Commission informed the Greek Government of the conclusions of its investigation and requested the appropriate measures to be taken. However, Greece failed to require the payment of levies, and did not institute any criminal or disciplinary proceedings against the perpetrator of the fraud. 77 Case C-265/95, Commission of the European Communities v French Republic [1997] ECR I-6959. 78 See A Klip, European Criminal Law (Cambridge, Intersentia, 2012) 269–71. 79 OLG Karlsruhe, 30.4.1982—4 Vas 22/82. 80 BVerfG 2 BvR 782/78 od 08 May 1979 (51, 176) V BVerfG: Keine richterliche Überprüfung der Bejahung des ‘öffentlichen Interesses’ an Strafverfolgung durch Staatsanwaltschaft, NJW 1979, 1591–92. 81 Rieβ, Peter, Rechtsweggarantie nach Art 19 IV GG, NStZ 1982, 434, 435. 82 A Schoreit, Justizverwaltungsakte der StA’in: Karlsruher Kommentar zur StPO, 6th edn (Munich, Verlag C H Beck, 2008) para 31.

1006 Judicial Control in Pre-Trial Criminal Procedure initiation of the investigation, by the consequences of investigative activity or by refusal to discontinue investigation.83 Consequently, Article 19 § 4 of the German Basic Law84 does not guarantee the judicial control of initiation or continuation of investigation, delay of investigation or other regular individual actions in criminal investigative stage.85 Such actions are for example a witness interrogation, summoning expert witness, refusal to appoint defence lawyer in preliminary procedure, selection of assistants for conducting investigation or refusal to replace and allegedly biased prosecutor.86 There is no right of the suspect to be informed about the suspicion of having committed a criminal offence. Protection under Article 19 § 4 of the Basic Law is possible only if investigative measures represent coercive measures that impinge on human rights.87 Initially these were only the measures with the constitutional judicial prerogative such as search of an apartment or interception of telecommunication, but the German Constitutional Court has gradually extended the judicial control of prosecutorial decisions in the investigative stage.88 Additionally, it is claimed that on the occasion of judicial control of legality of certain investigative measures the court, due to the factual overlapping simultaneously controls the fact required for conducting investigation. Namely, one of the obligatory requirements for executing these measures is the existence of the initial suspicion (Anfangsverdacht) for the institution of the investigation. Therefore, while examining the legality of a measure, the court shall also examine the legality of the initiation of investigation.89 The point of view about the impossibility of the judicial control of criminal prosecution is not generally accepted, and certain experts believe that in the case of unjustified initiation of an investigation or non-discontinuance despite reasons or delay in conducting investigation, a prosecutor in performing public authority violates the defendant’s rights, and that recourse should lie directly to the Constitutional court under Article 19 § 4 of the Basic Law.90 The constitutional protection covers the right of the defendant not to be subject to arbitrary criminal investigation, or for longer than necessary. Besides, according to Article 344 of the Criminal Code, the prosecution of innocent person is a criminal offence that incriminates arbitrary initiation of investigation.91 83

Strubel-Sprenger, NJW 1972, 1734 i sl. Einführungsgesetz GVG, 3. Abschnitt—Anfechtung von Justizverwaltungsakten, para 23. 85 Karlsruher Kommentar zur StPO (n 82), para 32. 86 Ibid, paras 31–32. 87 L Meyer-Goβner, Strafprozessordnung, 46th edn (Munich, Beck, 2003) 1020. 88 The rule was introduced that the guarantee of recourse to the courts under Art 19, para 4 should apply to the prosecutorial investigative act at least if by impinging on human rights it substantially affects the position of the defendant (U Eisenberg, Beweisrecht der StPO, 6th edn (Munich, Verlag C H Beck, 2008) para 1651). The prosecutorial actions and measures subject to judicial control include seizure, the right to inspection of file, blood sampling (BVerfG 2 BvR 784/08 od 28 srpnja 2008, HRRS 2009 Nr 221), and body search. Alike, the rule was established that judicial control cannot be secured at the constitutional level, but by the ordinary courts (Einführungsgesetz GVG, 3 Abschnitt—Anfechtung von Justizverwaltungsakten § 23), and with that goal the provision of judicial control of seizure under para 98/2 StPO was extended by constitutional interpretation to other previously mentioned actions and measures (R Griesbaum, ‘Rechtsbehelfe gegen poliseiliche Maβnahmen’ in Karlsruher Kommentar zur StPO, 6th edn (Munich, Verlag C H Beck, 2008) para 35). 89 For example, such is decision BGH StB 4/08 of 15 May 2008 where the court examined the legality of the initial suspicion to conduct preliminary proceedings dealing with the complaint against the court decision on a personal search. 90 P Rieβ, ‘Rechtsweggarantie nach Art 19 IV GG’ [1982] NStZ 436. 91 Ibid. 84

Judicial Control of Prosecutorial Decisions 1007 (b) Austria: The Function of Prosecution is Subject to Judicial Control The Austrian Criminal Procedural Act that came into force on 1 January 200892 substantially reformed the criminal proceedings replacing the judicial investigation by the prosecutorial investigation. With respect to the judicial control of prosecution, the Austrian prototype certainly was not Germany, as Austria has established multiple paths for judicial supervision of the prosecutorial function to conduct investigation. The first legal remedy, afforded not only to the defendant, but also to every person whose subjective rights have been violated by the prosecutor’s office or criminal police, is the complaint of rights violation (§ 106 StPO Einspruch wegen Rechtsverletzung). There is no deadline for filing complaint but it can be filed only in course of investigation stage (Ermittlungsverfahren, § 107 st 1 StPO). The grounds for complaint are violation of subjective rights either denying the use of a legal right or by ordering or conducting the investigative or coercive measure in the breach of law. According to the Austrian theorist, subjective rights are those that set the terms and conditions to be followed in exercising coercion against individuals under criminal procedural law or those that recognise the claim on certain procedural rights under the CPA.93 Subjective rights may be violated by coercion, but also by illegal enforcement of a coercive measure or action; for example, if a person whose dwelling is searched is denied the right to the presence of a person of trust.94 It is important to note that the complaint is not limited to certain enforcement measures or actions that impinge on fundamental rights, but also refers to the procedural rights of the defendant (the right to inspect the case file, to adduce evidence, to call the person of trust),95 as well as other investigative measures and powers. Also, failure or delay may exceptionally be subject to complaint, when the duration of the procedure with regard to the gravity of the offence and the complexity of the investigation is disproportionate. Another legal remedy that is considered a special type of complaint for rights violation under § 106 CPA and is afforded only to the defendant is the request for suspension (§ 108 StPO Antrag auf Einstellung).96 When a defendant believes that the act s/he is charged with is not an offence subject to public prosecution, there is no ground, or that circumstances barring prosecution exist, or if the duration of the proceedings is disproportionate, s/he may request the court to suspend the investigation.97 The ratio of this legal remedy is protection from the prosecutor’s and criminal police function of prosecution and investigation. Specifically, the law prescribes certain requirements for the conduct and the suspension of the investigation. These are primarily the existence of the initial suspicion

92

BGBl I 2004/19, BGBl I 2007/93, Bgbl I 2007/109, BGBl I 2007/112. EE Fabrizy, Die österreichische Strafprozessordnung (StPO): Kurzkommentar (Vienna, Manz, 2008) para 234. 94 E Fuchs, ‘Rechtsschutz im Ermittlungsverfahren’ (2007) ÖJZ 895–904. 95 Fabrizy (n 93) 234. 96 A Venier, ‘Einstellung und Anklage im neuen Strafprozessrecht’ (2007) 78 ÖJZ 905–13. 97 § 108 StPO Request for suspension (Antrag auf Einstellung): ‘The court shall suspend the investigation at the defendant’s request: 1. when based on the report or existing results of the investigation follows that it is not an offence punished by judicial punishment or further prosecution of the defendant is not permitted for legal reasons, or 2. the urgency or severity of the existing suspicion as well as the current duration and scope of the investigation do not justify its continuation and the intensification of the suspicion is not expected by further clarifications.’ 93

1008 Judicial Control in Pre-Trial Criminal Procedure of having committed a crime (§ 1 para 2 StPO)98 and the reasons for the suspension of proceedings (§ 190 StPO). Initial suspicion has a function to implement the rule of law because it protects an individual from becoming, without any given reason, the subject of investigation.99 When the public prosecutor initiates the proceedings without the existence of initial suspicion or does not suspend proceeding even though the conditions of § 190 stop to exist, s/he violates a subjective right of the defendant, to be an object of the investigative process only so long as there is a realistic possibility of conviction.100 Therefore, the aim of this regulation is to ensure that the investigation process takes just as long as it is necessary and appropriate to convict the defendant (§ 5 para 1 StPO) and to give to the defendant the right to claim that the investigation, which affects the subjective rights is carried out only in cases and in a manner prescribed by the CPA. 101 Submission of this remedy has been time-limited. The defendant may submit it not earlier than three months, and if the defendant was charged with a serious criminal offence (Verbrechen) six months from the start of criminal proceedings (§ 108 StPO).102 In Austrian theory it is claimed that described remedies, complaints for rights violations and request for suspension, are derived from a single system of legal protection in which the intervention of the criminal police and public prosecutor in the subjective rights of individuals in the preliminary proceedings are under judicial control.103 However, it is important to emphasise that the judicial control of the State Attorney’s Office in the case of both remedies is limited to examining what is under the jurisdiction of the courts,104 and that is to ensure implementation of the legality and proportionality principles. The court does not examine the opportunity of conducting the investigation or the individual investigative measures, but only their legality.105 Therefore, there is no violation of subjective rights unless the law contains a binding regulation on the behaviour of prosecutor or the criminal police, but they use their discretionary powers in accordance with the law.106 The reason is the separation of powers arising from the division of roles in the criminal procedure under which in criminal proceedings with prosecutorial investigation, the public prosecutor is responsible for conducting the investigation.

4. Judicial Control of the Prosecutorial Decisions of the EPPO The judicial control of the decisions to instigate, continue and discontinue criminal prosecution was not much discussed in the literature in relation to the EPPO. The Green Paper envisages only the judicial control of particular coercive measures during the pre-trial stage

98 According to the Austrian Criminal Procedure Act there is no formal decision to start the investigation, but it starts as soon as criminal police or prosecutor office begin checking the suspicion of a criminal offence against a known or unknown person or use the coercion against the suspect (§ 1 para 2 StPO). In place of the formal charging of a person comes the material charge without declaratory decision on the conduct of the proceedings and as such, protects the rights of the defendant (§ 48 para 1/1 StPO). 99 Fuchs (n 94) 896. 100 Venier (n 96) 907. 101 Fuchs (n 94) 896. 102 See n 97. 103 Fabrizy (n 93) 234. 104 Fuchs (n 94) 896. 105 Venier (n 96) 905. 106 Fabrizy (n 93) 235.

Conclusion 1009 and the judicial control of indictment at the end of the preparatory phase by the committal review court.107 The same is so with the Corpus Juris,108 with the exception of the decision on extension of the preparatory stage for another period of six months which should be taken by the judge of freedoms on a request from the EPP (Article 25(2)). It can be concluded that they have taken the standpoint that the prosecutorial decision of the EPPO should not be subject to judicial control in pre-trial procedure. However, it was shown that the decision to prosecute or not to prosecute is susceptible to judicial control. As concerns the decision of the EPPO to prosecute, the court should verify whether the legal requirements to institute, conduct and suspend investigation prescribed by the regulation have been respected and whether the duration of the investigation as prescribed by regulation in line with the principle of proportionality has been respected. As the legally justified nature and reasonable length of the investigation are obligations of the state resulting from individual human rights that after the accession of the EU to the ECHR will be binding for the EU institutions, there have to be remedies in case of violating these obligations. Modelled after the above-described Austrian request for suspension, the defendant should have a remedy to challenge the decision of the EPPO to institute, conduct or prolong investigation due to the non-existence of initial suspicion, or unjustified delay or breach of proportionality. This remedy can be time-limited eg three months from the start of investigation. Such judicial review of the prosecutorial decision can prevent abuse of process by manipulation, corrupt or grossly unreasonable decisions,109 political pressure, influence or motivation.110 As concerns the decision not to prosecute, the situation is different. The obligation of the state to prosecute according to the ECHR originates from the victim’s right. As the victim is the European Union, the human rights standards are not applicable. Also, the enforcement obligation imposed by the ECJ refers to the Member States and not to the EU institutions. However, the ECJ was given by the Lisbon Treaty the jurisdiction to rule on the validity of acts of the institutions, bodies, offices or agencies of the Union (Article 267(1)(b)). Therefore, the decision of the EPPO to drop the case can be subject to judicial control of the ECJ.111

D. CONCLUSION

This paper has analysed the need, scope and functions of the judicial control of the pretrial procedure conducted by the EPPO. Through the analysis of the national criminal procedural law in the member states of the EU and case law of the European courts the borderline was set between the prosecutorial and judicial powers in the pre-trial procedure. Different types of judicial control have been elaborated over two functions of the EPPO in the pre-trial procedure: investigative and prosecutorial. However, it did not cover all the issues related to judicial control in the pre-trial procedure such as the judicial 107

Green Paper (n 25) 6.4. Guarantee of the involvement of a court, 60–61, 70. Delmas-Marty, Vervaele (n 4) 36; 204, 206. See A Perrodet, ‘The Public Prosecutor’ in M Delmas-Marty, J R Spencer (eds), European Criminal Procedures (Cambridge, Cambridge University Press, 2002) 444–46. 110 See A L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings, 2nd edn (Oxford, Oxford University Press, 2008) 62–63. 111 See Killmann, Hofmann (n 52) 764. 108 109

1010 Judicial Control in Pre-Trial Criminal Procedure control of the defence rights to propose or undertake certain investigative acts for the collection of evidence or judicial control over settlement in the pre-trial procedure. The reason for omitting them is insufficient legal framework for the existence or content of such procedural mechanisms in the future pre-trial procedure run by the EPPO. As concerns the judicial control of coercive investigative measures the major task shall be to classify them in the groups according to the intensity of the judicial control. The special attention should be given to the measures ordered by the EPPO and subject to judicial review. The case law of the ECHR sets only the minimum standards regarding the performance of the coercive investigative measures and the European legislator has to follow the higher standards set by the procedural law of the Member States. If not, it will lead to the lowering of the protection of human rights in national criminal procedure, which is frequent reproach to the European policies in the criminal law sphere. The outcome of judicial control over investigative measures in the pre-trial stage should be the exclusion of their results in cases of violation of fundamental human rights and defence rights. The European rules on admissibility of evidence are on the one hand pivotal for the functioning of the EPPO, and on the other hand the most difficult issue before the European legislator, due to complexity, diversity and the importance of the evidence law in the Member States. It should be borne in mind that the rules on admissibility of evidence touches upon basic human rights protected by national constitutions. Therefore, the European rules may prescribe the rule on mandatory admissibility of evidence collected by the EPPO in the pre-trial procedure by national trial courts, only if the rules on investigative measures follow the highest European standards for the protection of human rights or defence rights guaranteed at the trial. The reason for such a solution is given in the example of the questioning of a witness. Otherwise, the introduction of the non-exclusionary rule will run counter to the case law of the ECtHR. Until now there was little discussion about the judicial control of the prosecutorial function of the EPPO. This concerns the decision of the EPPO to instigate prosecution, to drop the case, to continue or discontinue prosecution. The issue is whether these decisions are in the EPPO’s discretion, or are related to human rights and subject to judicial control. It was explained that all these decisions are based on objective requirements and therefore verifiable by the court. The ECtHR has established the criteria for the legality and proportionality of the initiation and duration of criminal investigation as human rights related to the right to liberty and to fair trial. Therefore, the prosecutorial function of the EPPO should be subject to judicial control through the remedy used by the suspect.

28 From Proven Fragmentation to Guaranteed Data Protection within the Virtual Criminal Law Enforcement Area: A Report on Personal Data Protection within the Framework of Police and Judicial Cooperation in Criminal Matters STEFAN BRAUM AND VALENTINA COVOLO

P

ERSONAL DATA PROTECTION is currently a key issue in judicial and police cooperation in criminal matters. The increasing number of automatic data processing systems, including those for law enforcement purposes, is leading towards the development of a panoptic society.1 Two factors explain the success of data processing techniques in criminal matters. First, new technologies are greatly increasing the capacities of information systems in terms of data storage and analysis. Secondly, in keeping with globalisation, political debates are paying particular attention to transnational criminal phenomena. This double development reinforces the ever more widespread idea among governments that collecting and sharing information is one of the most effective instruments in the fight against crime.2 Personal data processing is used to such an extent within an international context that it occupies a central place on the political agenda of the EU. In fact, the Stockholm programme identifies the development of an information management strategy among its key objectives.3 This reopens the debate on the clash between the availability of information and personal data protection (section A). Although law enforcement authorities demonstrate an increasing level of interest in automatic data processing techniques, the fragmentation of the standards that apply is evident. More profound analysis reveals, first, the fragmentation of the European legal framework (section B), and secondly, reticular levels of protection 1 The tendency towards a surveillance society has been noted, among others, by the Surveillance Studies Network in its Summary Report for the Information Commissioner: Surveillance Studies Network, ‘A Report on the Surveillance Society’ www ico.gov.uk. 2 For an analysis of the challenges for personal data protection, see European Commission, ‘Final Report of the Comparative Study on Different Approaches to New Privacy Challenges, in particular in Light of Technological Developments’ COM (2010) 13–16. 3 Council Notice 5731/10 of 4 May 2010 ‘Stockholm Programme, An open and secure Europe serving and protecting the citizens’ [2010] OJ C115/1ff, see in particular s 4.2.2; hereinafter the Stockholm Programme.

1012 Data Protection in the European Penal Area within police and judicial cooperation in criminal matters (section C). Similarly, issues relating to data transfer to third party countries for law enforcement purposes (section D) highlight the urgency of the issue. All these considerations can be used to outline the prospects for personal data protection in Europe (section E). A. AVAILABILITY VERSUS PERSONAL DATA PROTECTION

There is tension between the availability of information and individual freedom within the context of personal data exchange through the European criminal law enforcement area. The former aspires to the free circulation of information between law enforcement authorities, whereas the latter promotes the right to privacy as an element of ‘constitutionalisation’ of personal data protection. 1. The Free Circulation of Information The legal framework which establishes the rules for processing and transferring personal data within the European criminal law enforcement area is based on the principle of availability. The Hague programme defines this as the possibility for ‘all law enforcement agents of Member States who need certain information to carry out their duties to obtain it from other Member State departments, while respecting certain conditions’.4 The Commission considers the availability of information to mean that information held by the authorities of one Member State is transmitted to the equivalent authorities of another Member State at the request of the latter.5 In this sense, availability implies an obligation for the required authorities to share information,6 and so envisages a certain automaticity in the data exchange. In other words, availability is nothing more than the free circulation of information in criminal matters. In this field, there are two specific issues in the collection, processing and storage of personal data: it is not intended for use in the development of the effective marketing strategies within the domestic market, the management of this information is envisaged as a state instrument of social control.7 Precisely with this in mind, the notion of availability has been introduced on a European level: as the removal of borders within an area of freedom, security and justice allows individuals, including criminals, to circulate freely from one country to another, so the information required to fight crime should also be exchanged between Member States. The Schengen Information System (SIS)8 was 4 Commission, ‘La Haye programme: Ten priorities for the next five years. The Partnership for European Renewal in the Field of Freedom, Security and Justice’ (Communication) COM (2005) 184 final. 5 Commission, ‘Opinion of the European Data Protection Supervisor on the Proposal for a Council Framework Decision on the exchange of information under the principle of availability’ COM (2005) 490 final. 6 D Bigo et al, ‘Principle of information availability’ www.libertysecurity.org/article1377.html. 7 P de Hert and V Papakonstantinou identify three main phases which have determined the development of legislation on personal data protection: first, from the 1960s the aim was to protect individuals from administrative bodies; from the 1980s, the aim was to regulate the use of data by private actors; finally, the focus is the fight against crime, this time on an international level in reaction to the 9/11 terrorist attacks. See P de Hert, V Papakonstantinou, ‘The data protection Framework Decision of 27th of November 2008 regarding police and judicial cooperation in criminal matters—A modest Achievement however not the improvement some had hoped for’ (2009) 25 Computer Law and Security Review 403–14, in particular on this point 403–04. 8 Art 92ff Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic relating to the gradual removal of common border controls [2000] OJ L239/19.

Availability versus Personal Data Protection 1013 designed as a necessary countermeasure to the removal of border controls. Subsequently, other automatic data transfer mechanisms have been created, each aimed at specific types of offence, such as the Customs Information System (CIS),9 or specific areas of criminal proceedings, such as for example the European Criminal Records Information System (ECRIS).10 The terrorist attacks in New York, London and Madrid gave subsequent impetus to the exchange of data on an international level: many agreements signed with third party countries currently authorise the transfer of data relating to air passengers as well as financial services data, with the intention of fighting terrorism and its financing.11 Likewise, the globalisation of the economy and finance have been the scene of much debate with regard to the transnational transfer of data to fight financial crime, focusing mainly on money laundering and more recently tax evasion.12 The key role currently played by personal data protection in the fight against terrorism and serious crime is also due to technological progress, evidenced by the development of data profiling and data mining which law enforcement authorities now use. Within the framework of cooperation in criminal matters, the Stockholm programme renews the impetus to provide database interoperability to guarantee the capacity of existing information systems to exchange information and knowledge.13 The upholding of security in the era of globalisation, coupled with progress in data processing currently places personal data protection at the heart of the debate.14 However, European texts reveal a perception which is in certain regards paradoxical. Placed in opposition to the availability of information, data protection is more feared as a restriction to the actions of law enforcement authorities,15 than perceived as an element which legitimises police and judicial cooperation in criminal matters.16 Such an approach implies a reversal of the democratic basis of personal data protection. If defined simply as a restriction on the activities of law enforcement authorities, this interpretation is in danger of distorting the purpose of the protection, which is based on a society that respects individual freedoms.17

9 Convention established on the basis of Art K.3 of the Treaty on European Union, on the use of data processing in the field of customs [1995] OJ C316/34 modified by Council Decision 2009/917/JAI [2009] OJ L323/20. 10 Council Decision 2005/876/JAI of 21 November 2005 relating to the exchange of information extracted from criminal records [2005] OJ L322/33–37. 11 For a detailed analysis of so-called PNR and SWIFT agreements negotiated by the EU, see below. 12 In Europe, the ‘Liechtenstein’ case, which reveals the purchasing practices by the German authorities of data held by Swiss banking establishments, is symptomatic of the tensions stirred up by tax evasion over the last few years. 13 Commission, ‘Communication on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs’ COM (2005) 597 final. 14 For an insight into the development of the legal debates on personal data protection, see OR Puccinelli, ‘Apuntes sobre la evolución nomativa y el desarrollo conceptual de los derechos «de» y «a» la proteccióde datos’ in M V Pérez Asinaari, P Palazzi (eds), Challenges for the Right to Privacy Protection (Brussels, Bruylant, 2008) 99–130. 15 M Böse, Der Grundsatz der Verfügbarkeit von Informationen in der strafrechtlichen Zusammenarbeit der Europäischen Union (Göttingen, Verl-V & R Unipress, 2007) 51ff. 16 Letter from the European data protection controller to the Portuguese presidency, doc C351 (11 June 2007). 17 S Braum, ‘European data protection in European criminal law’ in S Braum, A Weyembergh (eds), Legal Control in a European Criminal Law Enforcement Area (Brussels, Editions by the University of Brussels, 2009) 195–207, in particular 199.

1014 Data Protection in the European Penal Area 2. The Right to Privacy, an Element of ‘Constitutionalisation’ of Personal Data Protection The more information becomes an object of desire within society, the more the right to personal data protection establishes itself as a fundamental right of each individual.18 Initially, personal data protection was linked to the right to privacy. The European Court of Human Rights considered the storage and use of the private data of an individual by a public authority as an interference with respect to the right conferred by Article 8(1) of the ECHR.19 Its broad interpretation links even public data collected and stored systematically by the authorities to the right to privacy.20 Similarly, the ECJ asserts the value of the fundamental right to protect personal data as being a consequence of the right to privacy.21 Similarly, the Lisbon treaty established the autonomy of the right to data protection. First, the Charter of Fundamental Rights promotes the right to the respect of privacy,22 a provision which specifically mentions the right to data protection.23 Secondly, Article 16 of the Treaty on the Functioning of the European Union (TFEU) again recalls this right while introducing a specific legal basis for the Union within this field. This new position for the right to personal data protection within the Union’s primary legislation confirms a process that certain authors have described, even before Lisbon, as ‘constitutionalisation’.24 Even before the ratification of the new treaties, the constitutional traditions of the Member States linked personal data protection to human rights. On a political level, any person can use the right to data protection at their discretion, provided it stems from individual freedom. Based on this consideration, the German Federal Constitutional Court made the universal principles of freedom the actual basis of this law. Personal data protection follows on more precisely from the right of each individual to self-determination within the field of information (Recht auf informationnelle Selbstbestimmung):25 everyone has the right to decide for him or herself whether data, which concerns them personally, may be made public. Conversely, a social order in which citizens are unaware of the reasons and purposes for which information is collected is not compatible with individual freedom, respect for which is a cornerstone of any democratic society. It follows that the possibility for public authorities to collect, process and store data must be the object of a precise legal framework. The latter is necessary to guarantee the predictability and proportionality of 18 See on this point H Burket, ‘Dualities of privacy: An introduction to personal data protection and fundamental rights’ in MV Pérez Asinaari, P Palazzi (eds) Challenges for the Right to Privacy Protection (Brussels, Bruylant, 2008) 13–23. 19 Leander v Suède App no 9248/81 (ECtHR, 6 March 1987). For an analysis of personal data protection with regard to the provisions of the ECHR see E de Busser, Data protection in the EU and US Criminal Cooperation: A Substantive Law approach to the EU Internal and transatlantic Cooperation in Criminal Matters between Judicial and Law enforcement authorities (Antwerp, Maklu, 2009) 84ff. 20 Rotaru v Romania App no 28341/95 (ECtHR, 4 May 2000). 21 Case C-275/06 Promusicae v Téléfonica de España SAU [2008] ECR I-00271, para 63. 22 Art 7 Charter of Fundamental Rights [2000] OJ C364/1. 23 Art 8 Charter of Fundamental Rights. 24 P de Hert, S Gutwirth, ‘Data protection in the case law of Strasbourg and Luxembourg: Constitutionalisation in Action’ in S Gutwirth et al (eds), Reinventing Data Protection? (Berlin, Springer, 2009) 3ff; L Coudray, ‘La protection des données personnelles dans l’Union européenne. Naissance et consécration d’un droit fondamental’ (Saarbrücken, Editions universitaires européennes, 2010) 693, in particular on this point see 452. 25 See in particular the so-called Volkszählungsurteil decision, BVerfG 65, 1. Also on the question A Rouvroy, Y Poullet, ‘The Right to Informational Self-Determination and the Value of Self-Development: Reassessing the Importance of Privacy for Democracy’ in S Gutwirth and others (eds), Reinventing Data Protection? (Berlin, Springer, 2009) 45–76.

The Fragmentation of the European Legal Framework 1015 the action of the law enforcement authorities, thus ruling out any arbitrary action on the part of the public authorities. This type of constitutional affirmation of the right to data protection is not without consequences for European instruments. It can be the source of conflicts between Union law and national legislation. This is particularly true with regard to Solange-type case law, through which the German Constitutional Court provides a high level of protection for individual rights, while European law offers fewer guarantees than of the national constitutional order.26 So for example, the Romanian Constitutional Court cancelled the legislation transposing the so-called ‘data retention’ directive, on the grounds that it did not meet the national constitutional requirements on personal data protection.27 The same example illustrates to what extent the right to privacy has to face the challenges of post-modern society. The German Constitutional Court highlighted that data retention in itself is not contrary to the right to secrecy of correspondence in relation to telecommunications (Grundrecht auf Schutz des Telekommunikationsgeheimnisses).28 It does however constitute a serious interference which needs to be strictly controlled.29 The interference in private life becomes more serious as information technologies progress. The digital era is deciphering our behaviours as consumers, citizens and even human beings, generating flows of information made available to public and private actors. We are ‘decipherable’; it seems that nothing can be kept secret any longer.30 The resulting dangers for fundamental rights are twofold. First, personal data processing does not cause any immediate practical harm, nor does it affect the physical integrity of the person. Instead, its abstract nature makes the use of data an intangible interference, whose seriousness is easy to minimise. Secondly, the new ‘Facebook generation’ tend to disclose even strictly private information in public. The worrying casual disclosure of personal information risks enhancing an apathetic conscience, instead of enhancing the conviction that protects the core of our private lives which is an integral part of any democratic society, it allows its integration and helps it function. Exposed to transformations within the public sphere and social control, the right to privacy should be protected ever more because it helps stabilise the values of the rule of law.

B. THE FRAGMENTATION OF THE EUROPEAN LEGAL FRAMEWORK

If the value and basis of the right to personal data protection are recognised without question, what about the content and application of this principle? It must be acknowledged that the legal framework in force is seriously fragmented. This is characterised by inconsistencies in the level of protection depending on the field concerned. Currently, the standards 26 Commission, ‘Final Report of the Comparative Study on Different Approaches to New Privacy Challenges, in particular in Light of Technological Developments’ COM (2010) 13–16, 22. 27 Romanian Constitutional Court, Decision no 1258, 8 October 2009, Official Gazette no 798, 23 November 2009 on the objection of unconstitutionality of the provisions of Law no 298/2008 on the retention of data generated or processed by the providers of publicly available electronic communications services or public communications networks, which also amends Law no 506/2004 on the processing of personal data and privacy protection in the electronic communications sector. 28 See BVerfG, 1 BvR 256/08, 2 March 2010 (‘1. Leitsatz’), 25. 29 Ibid BVerfG, ‘2. Leitsatz’. 30 For a reflection on the impact of the ‘information society’ on the right to privacy, see S Gutwirth, Privacy and the Information Age (Lanham/Boulder/New York/Oxford, Rowman and Littlefield Publishing, 2001) 61ff, 152.

1016 Data Protection in the European Penal Area of protection applied within the framework of police and judicial cooperation in criminal matters remain weak due to an interest in confidentiality imposed by the security objective. However, the new treaties make it possible to predict an enhancement of the right to data protection, as well as the democratic legitimacy of the European instruments.

1. Inconsistencies Inherited from the Former Pillar Structure (a) Cross-analysis of Directive 95/46 and Framework Decision 2008/977 The prime cause of the fragmentation of the legal framework governing personal data protection stems from the former pillar structure of the EU. In fact, the level of protection conferred by European texts varies, depending on the field. Within the framework of the first pillar, the former Article 286 TEC (new Article 16 TFEU) refers specifically to data protection. On this legal basis, Directive 95/46 relating to the protection of individuals with regard to the processing of personal data and the free circulation of this data31 sets out a common legal system. This instrument adopts general rules guaranteeing a high level of protection, subsequently supplemented by the adoption of specific texts.32 However, the application of this legal framework remains limited to the community pillar, with Directive 95/46 explicitly excluding police and judicial cooperation in criminal matters from its remit.33 This exclusion is confirmed by the case law of the ECJ: initially judges adopted a broad interpretation of the remit of the directive,34 but they then explained that its provisions were not applicable if the objective of the instrument in question was to fight crime and guarantee security even if its content imposed obligations on financial operators.35 Conversely, the third pillar offered no specific legal basis in terms of data protection. Despite the increasing number of data processing systems, the sources of law for the protection of personal data remain scattered. In fact, before the Lisbon treaty came into force, Article 8 of the ECHR was the reference provision, together with the common constitutional traditions of the Member States. In the absence of texts within the EU framework, the first systems for processing information referred to instruments negotiated within the Council of Europe. For example, Member States were committed to implementing the SIS, Framework Decision 2006/960, or even the Prüm decision,36 by providing a level of

31 Council Directive 95/46/CE of 24 October 1995 relating to the protection of individuals with regard to the processing of personal data and the free circulation of this data [1995] OJ L281/31-50. 32 In particular Directive 2002/58/CE of 12 July 2002 relating to the processing of personal data and the protection of privacy within the electronic communications sector [2002] OJ L201/37-47; Directive 2006/24/CE of 15 March 2006 on the retention of data generated or processed within the framework of the provision of electronic communications services accessible to the public or public communications networks [2006] OJ L105/45 were adopted. For an in-depth analysis of the legal framework within the framework of the first pillar see C Kuner, European Data Protection Law, 2nd edn (Oxford, Oxford University Press, 2007) 18ff. 33 Art 3 para 2 Directive 95/46/CE. 34 See eg case C-101/01 Bodil Lindqvist [2003] ECR I-12971. In this case, the judges accepted that Directive 95/46 was applicable even to facts which were not directly linked to the domestic market when no financial activity was concerned. 35 ECJ Joined cases C-317/04 and C-318/04 Parliament v Council (ECJ, 30 May 2006). 36 Council Decision 2008/615 of 13 June 2008 relating to the increase in cross-border cooperation, in particular with a view to fighting terrorism, cross-border crime [2008] OJ L20/1; See also Council Decision 2008/616 of 32 June 2008 relating to the implementation of decision 2008/615 [2008] OJ L20/12, hereinafter the Prüm Decision.

The Fragmentation of the European Legal Framework 1017 protection at least equal to that set out in the 1981 Convention for the protection of individuals with regard to the automatic processing of personal data37 and the 1987 recommendation of the Committee of Ministers of Member States which aimed to regulate the use of personal data within the police sector.38 These provisions however were too general, poorly adapted to the specific problems raised by the creation of new databases and out of date in relation to the technological progress.39 In addition, the aforementioned recommendation had no binding value. To make up for this lack of consistency, in 2008 the EU adopted the Framework Decision relating to the protection of personal data processed within the framework of the police and judicial cooperation in criminal matters.40 The ambition was to adopt a common legal system for data protection within the framework of the third pillar, just as the directive was adopted for the community pillar.41 However, the result of its laborious adoption was that it suffered significant restrictions, in at least two respects. First, the remit of the Framework Decision was limited. Its provisions applied only within the framework of inter-state information exchange, the purely domestic processing of data within states was not affected.42 In other words, each state remained free to apply the protection standards set out in its own national legislation as long as the processing of information was registered within a purely domestic framework.43 They were obliged to comply with the requirements of the European instrument only when the information was transmitted to another Member State of the EU. These differences in applying European rules can prove problematic: consequently, the police were only able to collect data in accordance with national legislation which was less protective of individual rights in comparison to the Framework Decision, and then transmit this same information to a foreign authority within the framework of the criminal cooperation. Only at this stage could the provisions of the Framework Decision be applied, even if the rights of the people concerned had been violated.44 The remit of the Framework Decision is also more limited because its provisions are discarded in favour of the texts adopted before it came into force within the framework of the third pillar.45 So the SIS, the Prüm decision and even Framework Decision 2006/960

37 Council of Europe, Convention for the protection of individuals with regard to the automatic processing the personal data [1981] CETS no 108 as modified by the additional Protocol at the Convention for the protection of individuals with regard to the automatic processing of personal data, relating to regulators and cross-border data flows [2001] CETS no 181. 38 Council of European Committee of Ministers, Recommendation no R (87) 15 to the Member States on regulating the use of personal data in the police sector (1987). 39 European Controller of Data Protection, ‘Declaration of European Data Protection Conference on the need for an adequate data protection framework in the Third Pillar’ (26 April 2005) www.edps.europa.eu/EDPSWEB/ edps/lang/fr/Cooperation/Eurconference. 40 Council Framework Decision 2008/977/JAI of 27 November 2008 relating to the protection of personal data processed within the framework of the police and judicial cooperation in criminal matters [2008] OJ L350/60-71. 41 De Hert (n 7) 406. 42 Art 1 para 2 Council Framework Decision 2008/977. 43 It is also important to note that Art 1 para 5 of Council Framework Decision aimed for minimal harmonisation which left the national legislator with the choice of whether to adopt the most protective rules on personal data. Today we can distinguish the three groups of Member State: those who guarantee a lower level of protection within the framework of domestic data processing, those who apply the same standards as set out by the European text in all situations, and those who generally guarantee a higher level of protection. 44 De Hert (n 7) 410. 45 Art 28 Council Framework Decision 2008/977.

1018 Data Protection in the European Penal Area are excluded from the remit. Each of these responds to a specific inconsistent legal system. Consequently, the approach adopted was diametrically opposed to that chosen within the first pillar: Directive 95/46 sets out a general framework supplemented by specific texts, but Framework Decision 2008/977 is discarded wherever the specific instruments apply. In other words, the desire to create a single legal framework for data protection in police and judicial cooperation in criminal matters in fact resulted in the repeated fragmentation of the legal systems. Another restriction to its application is brought to light: the Framework Decision is discarded in the face of essential interests in terms of national security and specific intelligence activity within this field.46 This general formulation once again highlights that the major difficulties for criminal matters lie in finding the balance between the security objective and individual freedom. Yet, in the absence of precise provisions, the risk is to justify more interference from law enforcement powers in the sphere of private life through a systematic claim of general interest in the fight against crime.47 (b) The Weight of General Interest in Criminal Matters The preamble of the Framework Decision announces the intention to guarantee a high level of protection,48 but commentators agree that these provisions tend to serve the security objective.49 So it provides a lesser degree of protection in comparison with Directive 95/46. First, the Framework Decision sets out the guiding principles in terms of data protection by drawing inspiration at first sight from Directive 95/46, as well as the case law of the ECJ within the framework of the first pillar.50 In accordance with the principle of proportionality, not only should the collection of data meet determined, explicit and lawful purposes, but its processing is authorised only for the purposes for which it was collected, which should be lawful, adequate, relevant and not excessive. However, a series of exceptions considerably limit the scope of these principles. In particular, the Framework Decision acknowledges the possibility for ‘subsequent processing’ of the data collected51 in such a way that, in practice, the restrictions set out by the principles of purpose may be discarded. As for data retention, this is authorised for the duration required for the purposes for which it was collected.52 However, the text goes on to explain that national legislation may freely set out the archiving of this data once the maximum retention period has passed.53 In other words, the information is not removed; it is simply moved to a different database. Another aspect which sets the Framework Decision apart from the directive is the principle of the quality of the data. Whereas the former sets out the accuracy of the information within the principles of data protection,54 the latter only sets out the rectification of information.55 It 46

Art 1 para 4 Council Framework Decision 2008/977. For a more detailed analysis of the legal instruments mentioned also see de Busser (n 19) 110ff. Art 1 para 1 Council Framework Decision 2008/977. 49 In this sense, see de Hert (n 7) 414. 50 See in particular ECJ Joined cases C-465/00, C-138/01 and C-139/01 Europäischer Rechnunghof v Österreischer Rundkunft and others [2004] ECR I-04989. 51 Art 3 para 2 Council Framework Decision 2008/977. 52 Art 4 para 2 Council Framework Decision 2008/977. 53 Ibid. 54 Art 6 para 1(d) of Directive 95/46/CE. 55 Art 4 para 2 Council Framework Decision 2008/977. 47 48

The Fragmentation of the European Legal Framework 1019 indirectly acknowledges the possibility of national authorities collecting and exchanging inexact or incomplete data. Similarly, the two texts adopt different approaches in relation to so-called sensitive data.56 The directive sets out a general prohibition with regard to the processing of information relating to racial or ethnic origin, political opinion, religious or philosophical conviction, trade union membership, health and the sexual orientation of individuals, yet the Framework Decision allows this possibility in the legitimate interest of the person concerned.57 Dependent on a series of exemptions, it is difficult to anticipate how great a role the principles resulting from the right to personal data protection can play in practice. In addition to the guiding principles, the Framework Decision lists the specific rights enjoyed by individuals. It requires national legislation to guarantee the right of the person concerned to be informed about the collection or processing of data,58 the right to guaranteed access at least for certain information,59 the right to rectification, deletion and blocking,60 as well as the right to compensation in the event of violation of the right to personal data protection.61 The avenues of redress for individuals are those set out by the national law.62 Like the principles asserted in Article 3, these rights remain subject to restrictions which, in the name of general interest, damage their effectiveness in actual cases. For example, the right to access may be limited to prevent hindrance to investigations and legal procedures, to prevent damage to prevention, detection, investigation and prosecution of offences and to protect public or state security.63 This broad definition of the restrictions to the right to access promotes the security objective, leading to considerable consequences for the rights of defence of the accused. This last point also raises the question of the position of people whose data may be processed within a criminal framework. Although in its final text the Framework Decision gives no clarification on this point, the proposal of the Commission refers to perpetrators suspected of committing an offence or expected to commit one in the future, people likely to be called as witnesses, and lastly people in contact with the two first categories.64 This broad concept of purpose contains an essential element: the distinction between the prevention of future risks and criminal proceedings aimed at law enforcement. In our opinion, the processing of data should be restricted to this second category. The assumption that a person might commit an offence in the future based on a simple suspicion is not sufficient. The earlier the collection of information prior to the criminal offence preparation phase, the more strictly the restrictions to data protection should be interpreted. However, the Framework Decision does not set out any differentiation in terms of the intensity or dimensions of the restrictions to the right to personal data protection. 56 P De Hert, C Riehle, ‘Data protection in the area of freedom, security and justice. A short introduction and many questions left unanswered’ (2010) 11 ERA Forum 163. 57 Art 6 Council Framework Decision 2008/977. 58 Art 16 Council Framework Decision 2008/977. 59 Art 17 Council Framework Decision 2008/977. 60 Art 18 Council Framework Decision 2008/977. 61 Art 19 Council Framework Decision 2008/977. 62 Art 20 Council Framework Decision 2008/977. 63 Art 17 para 2 Council Framework Decision 2008/977. 64 Art 4 para 3 Commission, ‘Proposal of the Framework Decision of the Council relating to protection of personal data processed within the framework of the police and judicial cooperation in criminal matters’ COM (2005) 475 final.

1020 Data Protection in the European Penal Area 2. New Legal Bases for a Consistent Approach In accordance with the objectives set out by the Stockholm Programme, the Commission envisages the adoption of a global approach to personal data protection, in particular by extending the remit of the general rules to the field of police and judicial cooperation in criminal matters.65 Its implementation may be based on the tools offered by the new treaties. There are two significant aspects: first, the introduction of specific legal bases, and secondly, the adoption of texts according to ordinary legislative procedure. In terms of legal bases, Article 8 of the Charter of Fundamental Rights does not only mention the right to personal data protection.66 It also explains the principles which should be respected within the framework of information processing.67 A binding force which applies to all areas, Article 8 restricts the decisions of European and national legislators through principles guaranteeing personal data protection. It is essentially a question of the same principles adopted by Directive 95/46 and, to a lesser extent, by the Framework Decision. However, their introduction into primary legislation constitutionalises them. More specifically, the Charter requires that personal data be processed fairly, for specific purposes and with the consent of the people affected or by virtue of a legitimate basis set out in law. It also confers a right of access to the data collected, as well as the right to have it rectified.68 The Charter also confirms the essential role of independent regulators.69 By abandoning the pillar structure, the new Article 16 TFEU represents, in our opinion, a legal basis which is both specific to the subject and cross-disciplinary. This provision presents a twofold advantage. First, it resolves the ambiguities regarding the division of remits within the EU between the first, second and third pillars. In fact, the case law of the ECJ in this field may appear contradictory: whereas the obligations set out for telecommunications services by the directive relating to retention increases according to the first pillar judges,70 the obligations incumbent on airline companies with a view to data transfer to a third party country decrease within the remit of the third pillar,71 even though the two texts in question in short aim to fight terrorism and other forms of serious cross-border crime. However, Article 16 TFEU puts an end to this distinction, as the right to data protection it sets out applies both to the private and public sectors, including police and judicial cooperation in criminal matters. Yet the distinctive features of criminal matters have not been erased. Instead they are expressly recalled in terms of personal data protection by declaration No 21 appended to the Lisbon Treaty.72 It is also interesting to note that the ‘opt in’ and ‘opt out’ system which can be used by the United Kingdom, Ireland and Denmark, within the framework of the freedom, security and justice area, can affect issues relating to data protection. Finally, 65 See in particular Commission, ‘Communication from the Commission to the European Parliament, Council, European Economic and Social Committee and Committee of Regions: A global approach to personal data protection within the European Union’ COM (2010) 609 final, 15–17. 66 Art 8 para 1 Charter of Fundamental Rights. 67 Art 8 para 2 Charter of Fundamental Rights. 68 Ibid. 69 Art 8 para 3 Charter of Fundamental Rights. 70 Case C-101/01 Bodil Lindqvist [2003] ECR I-12971. 71 Joined cases C-317/04 and C-318/04 Parliament v Council (ECJ, 30 May 2006). 72 Declarations annexed to the final act of the intergovernmental conference which adopted the treaty of Lisbon, ‘Declaration no 21 on personal data protection within the field of police and judicial cooperation in criminal matters and police cooperation’ OJ C83/345.

The Fragmentation of the European Legal Framework 1021 common security foreign policy continues to be governed by specific provisions which affect the sensitive issue of terrorist lists drawn up within an international framework.73 On a legislative process level, the Lisbon Treaty introduced a new division of powers in terms of police and judicial cooperation in criminal matters. The communitisation of this field enhanced above all the role of the European Parliament. In accordance with Article 16(2), the acts affecting personal data protection were adopted in accordance with ordinary legislative procedure. Similarly, the agreement of the Parliament is required for the conclusion of agreements with third party countries.74 Given the internationalisation of information exchanges, Parliament has already played an active role in the field. Last February, it refused to ratify the so-called ‘SWIFT I’ agreement signed on 30 of November 200975 with the United States, on the grounds that it did not respect the fundamental rights.76 The application of ordinary legislative procedure within the framework of data exchange in criminal matters thus consolidates the democratic legitimacy of the European instruments. In fact, the information processing systems put in place before the new treaties came into force were negotiated at an intergovernmental level. The European administration, in particular the Commission, was placed in charge of carrying out feasibility studies to examine the technical aspects required to put in place new databases.77 Such was the case for the SIS II, for which a call for tender to develop the software was launched in 2003 even before a public debate could be opened on the aspects, however sensitive, affecting personal data protection.78 This legislative technique put the executive power at the centre of decisionmaking process, while moving away from the participation of the European Parliament.79 Lastly, it is also important to highlight that the TFEU broadened the remit of the ECJ in terms of police and judicial cooperation in criminal matters, in several respects. First, individuals have the power to bring proceedings for annulment against acts aimed at them or that concern them directly and individually, as well as against regulatory acts, which affect them directly and do not include enforcement procedures.80 If need be, they can claim the right to personal data protection which they derive from the primary legislation of the EU before the ECJ. In addition, the introduction of action for failure to fulfil obligations within this field gives the Court the power to take disciplinary action against Member States for poor adaptation of European texts,81 including where national legislation does not respect European requirements in terms of personal data protection. Lastly, it is important to note that the Court retains a limited remit in terms of common foreign and security policy to

73 H Hijmans, ‘Recent developments in data protection at European Union level’ (2010) 11 ERA Forum 129–231, in particular on this point 221. 74 Art 218 TFEU [2008] OJ C115/47. 75 Agreement between the European Union and the United States of America on the processing and transfer of financial services data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Programme [2009] doc no 05305/1/2010 REV 1—C7-0004/2010—2009/0190 (NLE). 76 European Parliament, Resolution P7 TA (2010) 29. 77 See for the example of the SIS II, Council Decision 2001/886/JAI of 6 December 2001 for the development of the second generation of Schengen Information System OJ L328/1-3; Council Decision 2008/839/JAI of the 24 October 2008 relating to the migration of the Schengen Information System (SIS 1+) to the second generation Schengen information system (SIS II) OJ L299/43-49. 78 Braum (n 17) 195–207, in particular 201. 79 In this sense see S Leutheusser-Schnarrenberger, ‘Ein System gerät auβer Kontrolle: Das Schengener Informationssystem’ [2004] 4 Zeitschrift für Rechtspolitik 97ff. 80 Art 265 TFEU. 81 Art 260 TFEU.

1022 Data Protection in the European Penal Area rule on decisions which adopt restrictive measures against legal entities or individuals, such as for example ‘blacklists’ within the framework of the fight against terrorism.82

C. RETICULAR LEVELS OF PROTECTION WITHIN POLICE AND LEGAL COOPERATION IN CRIMINAL MATTERS

Even though the removal of the pillar structure offers tools allowing the adoption of a more consistent approach in terms of personal data protection, a second aspect lies behind the vast number of distinct legal systems applied within judicial and police cooperation in criminal matters. Due to the limited remit, Framework Decision 2008/977 did not manage to impose a general legal framework, valid throughout this entire field. Instead, as its provisions are discarded in favour of specific instruments adopted before it came into force, the Framework Decision retains most of the distinctive features of the ad hoc information processing systems and legal rules which govern them.83 This exclusion has significant consequences on the consistency of data protection standards in criminal matters, especially because the European instruments in question have been adopted more in response to specific needs.84 Therefore, the various databases and information sharing mechanisms developed in a disorganised fashion: each new instrument was aimed at a particular type of offence or met a distinct objective. This resulted in a fragmentation of the European legal framework relating to the processing, storage and transfer of personal data for law enforcement purposes. An assessment of the instruments in question however made it possible to detect the common theme which seems to have marked the issue of data protection on criminal matters: the right to privacy tries to act as a counterbalance when faced with general interest requirements, more specifically in the fight against crime. Several examples are evidenced,85 both in relation to centralised and decentralised information processing systems as well as secure networks managed by European bodies.86

1. Centralised Data Processing Systems: the SIS and SIS II Example At the heart of the police and judicial cooperation in criminal matters, the Schengen Information System (SIS) is a centralised computerised system for the processing of data implemented within the framework of the Schengen agreement.87 Concerning initially a limited number of Member States, it became an integral part of EU law with the Amsterdam Treaty.88

82

Art 275 TFEU. See De Busser (n 19) 213–17. 84 De Hert, Riehle (n 55) 159–67, in particular on this point 161. 85 For a detailed analysis of the existing mechanisms, see F Boehm, Information Sharing and Data Protection in the Area of Freedom, Security and Justice (Heidelberg, Springer, 2012) 467. 86 Given the considerable number of applicable texts, we have chosen to present the major instruments for each of these categories. 87 Art 92ff Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic relating to the gradual removal of common border controls [2000] OJ L239/19, hereinafter CISA. 88 Council Decision of the 20 May 1999 relating to the definition of the Schengen regulations with a view to determining, in accordance with relevant provisions of the Treaty establishing the European Community and the 83

Reticular Levels of Protection Within Police 1023 The SIS is applied in all 25 countries89 and the number of pieces of data it contains is constantly increasing: the membership of new Member States to the Schengen area alone has increased the number of alerts from 22.9 to 31.6 million in two years.90 The SIS is made up of a centralised information system and is equipped with a national base in each participating country.91 It operates according to a ‘hit–no hit mechanism’: if the data relating to a wanted person or object correspond to an existing alert, the law enforcement authorities get a positive result (hit) and only in these cases can they request additional information allowing them to identify the people and objects referred to in said piece of intelligence.92 The SIS aims to preserve public order and security, including state security, and facilitate the free movement of people within the Schengen area.93 With this objective, it collects a wide variety of information. It may contain data relating to names and pseudonyms, nationality, dates and places of birth, or even the information that an individual is armed or violent.94 The alerts may relate to wanted people with a view to their arrest or extradition, third party nationals to be refused entry, missing people, witnesses or people summoned to appear before legal authorities, people and vehicles which are the object of exceptional surveillance due to the threat they constitute to public or national security,95 as well as objects such as fire arms, documents, suspect bank notes and lost or stolen vehicles.96 In accordance with the principle of speciality, the personal data may only be used for the purposes of the specific alerts for which they have been supplied. It may only be retained for the duration required to achieve these aims. With regard to the latter, the text sets out a maximum retention of three years for information collected for the purposes of investigating people and one year for data relating to people who are the object of exceptional surveillance due to the threat they constitute to public or national security.97 Until now, the SIS has suffered a lack of consistency between the first and third pillar. As it also includes alerts relating to fields that fall under community remit, such as asylum and immigration, its legal basis was simply split in two. This division is reflected in the legislative process aimed at implementing the SIS II:98 first, a regulation within the framework of the asylum and immigration policy99 with the active participation of the Treaty on European Union, the legal basis of each of the provisions or decisions which constitute the regulations [1999] OJ L176/1. 89 The SIS applies in full to 22 Member States, to which can be added Switzerland, Norway and Iceland. The United Kingdom and Ireland are only linked for aspects concerning police cooperation with the exception of alerts concerning third party nationals included on the list of people to be refused entry. Cyprus, Liechtenstein, Romania and Bulgaria should soon be added. 90 Figures referring to 2008 and 2010 respectively. See Council Document 5441/08 of the 30 January 2008; Council Document 6162/10 of the 5 February 2010. 91 Art 93 CISA. 92 For a more detailed analysis of the operation of the SIS and an example of national application, see House of Lords, European Union Committee, 9th Report of Session 2006–07, Schengen Information System II, 20 February 2007 www.publications.parliament.uk/pa/ld200607/ldselect/ldeucom/49/4902.htm. 93 Art 93 CISA. 94 Art 94 CISA. 95 Art 95 CISA. 96 Art 100 CISA. 97 Art 112 CISA. 98 On the implementation, see the Commission, ‘Report to the European Parliament and Council on the advancement of the development of the second generation Schengen Information System (SIS II)’ COM (2011) 391 final. 99 Council Regulation (EC) no 1987/2006 of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) [2006] OJ L381/4-23.

1024 Data Protection in the European Penal Area Parliament, secondly, a decision of the Council on cooperation in criminal matters100 with a simple right of inspection for Parliament. Even though Article 16 TFEU resolves this point through the generalisation of ordinary legislative procedure, the level of personal data protection in criminal matters remains poor to date:101 while the regulations are subject to the requirements of Directive 95/46, the decision falls outside the remit of Framework Decision 2008/977. The absence of parliamentary debate on a European level, symptomatic of weakened democratic legitimacy, in turn leads to a gap in the legal protection of individuals. Strong criticisms have been raised by supporters of personal data protection, criticisms that denounce the extension of information access and processing possibilities by law enforcement authorities without putting in place stronger mechanisms to protect individual freedoms.102 In fact, the SIS II considerably extends the categories of information which can be the object of data storage. In particular, biometric data has been added, such as fingerprints, photographs and individual, objective, inalterable physical features.103 This makes it possible to identify the people indicated throughout Europe using a computerised profile system. In addition, the communication between alerts104 develops a real information network, which can be accessed by Europol105 and Eurojust,106 as well as national prosecutors and police. Lastly, it is necessary to mention alerts for people and objects for the purposes of discreet surveillance and specific controls.107 This relates to people on whom there is serious evidence to suggest they are contemplating committing particularly serious offences.108 Yet it is difficult to determine whether these criteria consist in a suspicion or constitute a concrete preventative measure against a future danger. However, the text seems to acknowledge that an overall assessment of the person indicated makes it possible to assume they will in the future commit serious criminal offences.109 These categories of alerts are located outside simple cases of suspicion or actual danger: they are about identifying risks without any precise criteria and remain subject to the discretion of the political power, so suspects, offenders, dangerous individuals and even citizens at risk are among the many cases that justify the creation of files.110

100 Council Decision 2007/533/JAI of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) [2007] OJ L205/63–84. 101 See above. Moreover the SIS refers to the 1981 Convention of the Council of Europe and the 1987 recommendation of the Council of Ministers on Art 115 CISA. 102 See for example Leutheusser-Schnarrenberger (n 77) 100; For a more general criticism regarding the involvement of centralised databases, see V Mitsilegas, ‘Databases in the area of freedom, security and justice: Lessons for the centralisation of records and their maximum exchange’ in C Stefanou, H Xanthaki, Towards a European Criminal Record (Cambridge, Cambridge University Press 2008) 311–35, in particular on the SIS 317. 103 Art 50 Council Decision 2007/533. It is also important to indicate that within the framework of the SIS II alerts on European arrest warrants sent by Member States are possible. 104 See in particular Art 52 Council Decision 2007/533. 105 Art 41 Council Decision 2007/533. 106 Art 42 Council Decision 2007/533. 107 Art 36ff Council Decision 2007/533. 108 Art 36 para 2(a) Council Decision 2007/533. 109 Art 36 para 2(b) Council Decision 2007/533. 110 Leutheusser-Schnarrenberger (n 77) 97ff; See Braum (n 17) 201ff.

Reticular Levels of Protection Within Police 1025 2. Decentralised Data Processing Systems Similar considerations can be formulated in the analysis of decentralised data exchange systems. For example, we will analyse the in more detail the Prüm decision, Framework Decision 2006/960 relating to the simplification of the exchange of information and intelligence between the law enforcement services of Member States, the European Criminal Records Information System (ECRIS), and Directive 2006/24 on the retention of data. It is nevertheless important to highlight that there are other instruments within the framework of police and judicial cooperation in criminal matters, ie the customs information system (CIS),111 with the FIU.net application making it possible to exchange information between financial intelligence units,112 the European Cybercrime Platform (ECCP),113 as well as the intelligence exchange system between Asset Recovery Offices (ARO) for the purposes of screening and identifying the proceeds of crime.114 All these computerised systems form a fragmented network split into different legal systems which are applied to the processing of personal data. In other words, the remit of the data processing is not a juxtaposition of legal instruments. All these texts adopt different definitions of the categories of data concerned, the purposes of processing and the application made on the principle of proportionality. (a) The Prüm Decision Like the SIS, this information exchange system was first put in place within the framework of enhanced cooperation.115 Only then was the Prüm Treaty transformed into an EU instrument by Council Decision 2008/615.116 The latter made a decentralised automatic data exchange system available to the law enforcement authorities of the Member States. More specifically, the Prüm decision authorised the exchange of data relating to fingerprints,117 vehicle registrations118 and people suspected of planning terrorist attacks.119 But above all, it introduced the possibility of exchanging DNA profile data.120 Article 2 of the decision sets out the conditions for creating national files without containing specific 111 Convention established on the basis of Art K.3 of the Treaty on European Union, on the use of data processing in the field of customs [1995] OJ C316/34 modified by Council Decision 2009/917/JAI [2009] OJ L323/20. 112 Council Decision 2000/642/JHA of 17 October 2000 relating to the methods of cooperation between the financial intelligence units of Member States with regard to the exchange of information [2000] OJ L271/4-6. 113 Council Conclusions on setting up national alert platforms and a European alert platform for reporting offences noted on the Internet [2008] 2899th Justice and Home Affairs Council meeting; Council Conclusions concerning an Action Plan to implement the concerted strategy to combat cyber-crime [2010] 3010th General Affairs Council meeting. 114 Council Decision 2007/845 JAI of the 6 December 2007 relating to the cooperation between asset recovery offices of Member States in terms of screening and indentifying the proceeds of crime or other assets in relation to crime [2007] OJ L332/103–105. 115 Treaty between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross border crime and illegal migration (Prüm, 27 May 2005). 116 Council Decision 2008/615 of 13 June 2008 relating to the increase in cross-border cooperation, in particular with a view to fighting terrorism, cross-border crime [2008] OJ L20/1; See also Council Decision 2008/616 of 32 June 2008 relating to the implementation of decision 2008/615 [2008] OJ L20/12, hereinafter the Prüm Decision. 117 Art 8ff Prüm Decision. 118 Art 12ff Prüm Decision. 119 Art 16ff Prüm Decision. 120 Art 2ff Prüm Decision.

1026 Data Protection in the European Penal Area provisions on biometric data protection. In accordance with Article 4(1), the automatic comparison of DNA profiles is possible, on condition that the files are created and registered following investigations on criminal offence matters.121 Despite the remarkable extension of DNA profiles and their sensitive nature, the decision contains only a few provisions guaranteeing the right to data protection. Firstly, the Prüm decision falls outside the remit of the provisions of Framework Decision 2008/977. Instead it refers to national law and makes reference to Convention No 108 of the Council of Europe, as well as the 1997 recommendation 1997 devoid, in this respect, of any binding value.122 Even though Member States are not able to automatically exchange data unless they provide a level of protection at least equivalent to that set out by the latter texts, the standards of protection remained indisputably lower than those set out by Directive 95/46. In fact, where the decision sets out principles aimed at guaranteeing data protection, their actual application may fail due to the restrictions set out.123 So for example, the text sets out the principle of purpose according to which the recipient State may only carry out data processing for the purposes for which it has been transmitted. However, processing for other purposes is allowed with the prior authorisation of the data manager.124 Similarly, the decision requires the data to be accurate and up to date,125 but indirectly allows inaccurate information to be exchanged. In this case, the data is tracked at the request of the person concerned.126 Lastly, the maximum retention period for personal data depends on the legislation of the Member State that transmitted the information,127 which again accentuates the reticular architecture of the aforementioned data protection. (b) Framework Decision 2006/960 A second example to be analysed is Framework Decision 2006/960, presented on Swedish initiative and adopted by the Council with the aim of rationalising the exchange of information on criminal matters between Member States.128 By opting for decentralised data processing architecture, this instrument is based on the principle of equal access: the crossborder exchange of data should not be subject to stricter conditions than those set out for national access.129 The Framework Decision very broadly refers to any type of information held directly by law enforcement services or by public authorities or private entities, which is accessible to law enforcement services.130 With regard to personal data protection, the same observations highlighted when analysing the Prüm decision can be noted. While falling outside the remit of Framework

121 In accordance with Art 3 Prüm Decision, the same limitation is set out for the automatic consultation of DNA profiles. 122 Art 25 para 1 Prüm Decision. 123 For a criticism in this sense see B Prainsack, V Toom, ‘The Prüm Regime: Situated Dis/Empowerment in transnational DNA profile exchange’ (2010) 50(6) British Journal of Criminology 1117–35. 124 Art 26 para 1 Prüm Decision. 125 Art 28 para 1 Prüm Decision. 126 Art 28 para 2 Prüm Decision. 127 Art 28 para 3 Prüm Decision. 128 Council Framework Decision 2006/960/JHA of 18 December 2006 relating to the simplification of the exchange of information and intelligence between the law enforcement services of European Union Member States [2006] OJ L386/89. The text is commonly identified as the ‘Swedish initiative’. 129 Art 3 para 3 Council Framework Decision 2006/960. 130 Art 2(d) Council Framework Decision 2006/960.

Reticular Levels of Protection Within Police 1027 Decision 2008/977, the Swedish initiative refers to standards of protection set out by national legislation and by the instruments of the Council of Europe.131 Similarly, the communication of data for purposes other than those for which it was collected is authorised on condition of prior authorisation of the issuing Member State. It is however, interesting to note that being of a disproportionate nature or there being no object with regard to the purposes for which the information was requested are included among the grounds for refusal.132 To guarantee the efficiency and rapidity of the system, the Framework Decision sets out maximum response times to requests for information sent by states.133 Despite the ambition to increase efficiency in the exchange of intelligence in criminal matters, this mechanism is not currently achieving outstanding success as only two of the 12 Member States who have adopted the necessary provisions for its implementation have recourse to it on a regular basis.134 (c) The European Criminal Records Information System Member States also agreed to the creation of a criminal records information exchange system (ECRIS). Its legal framework is a juxtaposition of three texts adopted successively: — — —

Decision 2005/876 of the Council;135 Framework decision 2008/675;136 Framework decision 2009/315,137 implemented by Decision 2009/316 of the Council.138

More specifically, the issue was raised in legislative debates following the Fourniret case of how to prevent sexual offenders prohibited from working in school establishments being able to get round this order by simply moving to other Member States. In 2004, Belgium proposed the implementation of ECRIS.139 The Belgian initiative resulted a year later in the adoption of Framework Decision 2005/876. This first text put in place a decentralised information exchange system between the designated central authorities within each Member State. First, central authorities are obliged to actively inform their foreign counterparts of any convictions pronounced against its nationals. Secondly, central authorities may from time to time send requests to Member States to obtain information contained within foreign criminal records.

131

Art 8 para 2 Council Framework Decision 2006/960. Art 10 para 1(c) Council Framework Decision 2006/960. 133 Art 4 Council Framework Decision 2006/960. 134 Commission, ‘General presentation of the management of information in the field of freedom, security and justice’ (Communication) COM (2010) 385 final, 10–11. 135 Council Decision 2005/876/JAI of 21 November 2005 relating to the exchange of information extracted from criminal records [2005] OJ L322/33-37. 136 Council Framework Decision 2008/675/JAI of 24 July 2008 relating to the consideration of sentencing decisions between European Union Member States in relation to a new criminal procedure [2008] OJ L220/32-34. 137 Council Framework Decision 2009/315/JAI of 26 February 2009 regarding the organisation and content of exchanges of information extracted from criminal records between Member States [2009] OJ L93/23-32. 138 Council Decision 2009/316/JAI of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Art 11 of Framework Decision 2009/315/JHAArt [2009] OJ L93/33–48. 139 Council initiative no 14207/04 of 5 November 2004 of Kingdom of Belgium initiative aimed at the adoption by the Council of a Framework Decision relating to the recognition and execution within the European Union of orders resulting from convictions for sexual offences committed against children COPEN 133. 132

1028 Data Protection in the European Penal Area Whereas this first text simplifies the exchange of information between central authorities in comparison with the judicial cooperation instruments of the Council of Europe,140 the Commission presented a legislative package to further accelerate and facilitate the sharing of information relating to the criminal backgrounds of individuals.141 Therefore, Framework Decision 2008/675 sets out the obligation of Member States who commence legal proceeding against a person to consider any possible previous convictions they may have.142 In addition, Framework Decision 2009/315 defines more precisely the obligations incumbent upon States in terms of communicating and retaining extracts from criminal records.143 This latter text is supplemented by the implementation of a decentralised data processing system which enables the interconnection of national criminal records.144 Therefore, through ECRIS, the central authorities of Member States can exchange the information contained within national criminal records. This should include underlying convictions, sentences and offences (compulsory information), as well as the biographical details and fingerprints of the person as indicated in the national criminal record (additional information).145 In accordance with the principle of purpose, this data may only be used for the purposes of the criminal proceedings for which it was requested.146 This includes the pre-sentence phase, criminal proceedings and conviction.147 Two exceptions limit the scope of the principle. First, personal data may be transmitted in the event of immediate and serious danger to public security.148 In addition, the use of information contained within criminal records is possible for other purposes with the agreement of the Member State that provided it, if authorised by its national legislation.149 With regard to the other restrictions aimed at protecting personal data, the retention of data remains governed by national legislation. Despite the provisions appearing scattered at first sight, it is important to note that ECRIS is subject to the standards of Framework Decision 2008/977.150 (d) Directive on Data Retention (i) The European Legal Framework: the Text of the Directive and its Interpretation in Case C-301/06 A decentralised data processing model is also chosen for its retention. Following the terrorist attacks in London in July 2005, a group of Member States highlighted the need to harmonise national regulations requiring telecommunications services to retain certain data for use during criminal investigations and proceedings. The initiative resulted in

140 In fact, an assessment of the system put in place within the Council of Europe showed it to be effective. See Council of Europe, European Convention of legal cooperation on criminal matters [1959] ETS no 3. 141 See Commission, ‘White Paper relating to the exchange of information on criminal convictions and the effect of those within the European Union’ COM (2005) 10 final. 142 Art 3 Council Framework Decision 2008/675. 143 Art 4-9 Council Framework Decision 2009/915. 144 Council Decision 2009/316. 145 Art 11 Council Framework Decision 2009/315. 146 Art 9 Council Framework Decision 2009/315. 147 Art 2(b) Council Framework Decision 2009/315. 148 Art 9 para 3 Council Framework Decision 2009/315. 149 Art 7 para 2 Council Framework Decision 2009/315. 150 Point 13 Preamble Council Framework Decision 2009/315.

Reticular Levels of Protection Within Police 1029 the adoption of Directive 2006/24 on data retention.151 The directive obliged electronic communication service providers accessible to the public or public networks to retain data relating to traffic and localisation152 for a minimum of six months up to a maximum of two years.153 This data includes all related information which may be of use to subscribers and users.154 The rules determining the competent authority, as well as access procedures and conditions to be followed, fall within the remit of Member States.155 The Directive on data retention is problematic in two respects. From a procedural point of view, doubts have been raised with regard to the legal basis chosen. In fact, the European Commission held that the text should find its legal basis in Article 95 TEC (new Article 114 TFEU) in that it aims to harmonise the retention of data by financial operators on the domestic market. However, simply reading the directive makes it clear that the prime objective of data retention lies in detection and criminal offence proceedings. This same argument was raised by the Republic of Ireland within the framework of an action for annulment brought against the directive.156 The ECJ surprisingly rejected the action by holding in turn that the text found its legal basis in the community pillar: the main aim of the rules harmonising the obligation of telecommunications enterprises to retain data was to govern the operation of the market. The decision certainly deserves the credit for subjecting data retention to the more protective system of Directive 95/46, but it offers a contradictory view of the issue. The judges reduce the issue to the data protection to its purely procedural aspect, placing the case law of the Court far from the reality of criminal procedures. In accordance with the decision, interference resulting from data retention does not really affect the privacy of citizens, but rather telecommunications enterprises given that the latter assume significant investments and operating costs,157 when obliged to retain information. The single market notion therefore has the upper hand on the real implications of data retention. This is all the more pronounced because the Court does not appear to pay any attention to the argument raised by the Slovak Republic, no matter how relevant it may be: based on Article 8 of the ECHR, the Member State highlighted that as significant an interference in the privacy of an individual as that produced by the retention of data should not be the result of regulations aimed at the operation of the domestic market; this type of interference should only be the result of rules for law enforcement purposes.158 Therefore, this aspect confirms the real objective of the directive: to fight terrorism and crime. The perspective adopted by the Court therefore contradicts the wording of the directive, the system for responsibility sharing and previous case law. First, the terms used by the directive are explicit: the retention of data for the purpose of investigation, detention and serious offence proceedings.159 However, the Court justifies the harmonisation carried out by the directive as a measure aimed at removing any distortion of competition among 151 Directive 2006/24/CE of 15 March 2006 on the retention of data generated or processed within the framework of the provision of electronic communications services accessible to the public or public communications networks [2006] OJ L105/54-63. 152 Art 1 Directive 2006/24/CE. 153 Art 6 Directive 2006/24/CE. 154 Art 2 Directive 2006/24/CE. 155 Art 4 Directive 2006/24/CE. 156 Case C-301/06 Ireland v European Parliament and Council of the European Union [2009] ECR I-00593. 157 Ibid [68]. 158 Ibid [34]. 159 Art 1 (1) Directive 2006/24.

1030 Data Protection in the European Penal Area telecommunication service providers which could result in inconsistencies between national legislations with regard to the obligation to retain data.160 Therefore, the decision breaks with the ‘means-end’ functional logic which guides the choice of legal basis: data retention is not an objective for financial operators, but a technical means that law enforcement authorities use with the aim of bringing proceedings against the perpetrators of criminal offences. In addition, the decision makes an abstract interpretation of the system of former Article 47 TEU determining community and intergovernmental remits: given that the Directive on data retention modifies the previously adopted Directive 2002/58, the former must find its legal basis in the first pillar. This argument again creates a biased view of the criminal justice system: instead of considering criminal law in terms of its social objective, it is generalised in such a way that the implications of law enforcement on individual freedoms are made relative. By reducing data retention to a procedural question of remits, a contradiction is created with regard to the standards of protection applied. This point is even more pronounced because the decision seems to contradict the case law of the ECJ on the subject of PNR data transfer.161 The judges make a subtle distinction between, on the one hand, data retention which in itself does not entail the involvement of the law enforcement authorities and, on the other hand, the transfer of data which does imply the involvement of said bodies.162 However, it seems difficult to fully define the distinction if one considers that the two measures actually meet the same objective: to gather information with the aim of fighting serious crime by bringing proceedings and controlling risk. This shows the complete ambivalence of the case law of the ECJ: personal data protection is the cause of tension between the functional integration logic and specific safeguards on criminal matters, with the risk that the assessment of the issue will show poor guarantees for individual freedoms.163 From a practical point of view, the directive damages personal data protection. First, the existence of a predefined purpose which may justify data retention is not required, provided that the directive is limited to aiming at a possible future use for the purposes of investigation, detection and serious office proceedings as defined in each national legislation.164 In other words, retention is authorised for general reasons, independent of any concrete suspicion or risk, and may concern any individual in future criminal procedures. In addition, very broad categories of information and poorly defined outlines are referred to in such as way as to leave doubts as to whether the principle of predictability is respected. In particular, Article 5 of the directive sets out the retention of any data required to find and identify the source of a communication (such as the telephone number of the caller, the name and address of the subscriber or the registered user), to determine the date and start time of the session or internet access service session and the type of communication, as well as to locate the mobile communication equipment (for example the identity and

160 Case C-301/06 Ireland v European Parliament and Council of the European Union [2009] ECR I-00593, [71]. This aspect is all the more strange because the issue of the cost of retaining data is not dealt with by the directive. 161 Joined cases C-317/04 and C-318/04 Parliament v Council (ECJ, 30 May 2006). 162 Ibid [99]. 163 For a detailed analysis of the decision, see S Braum, ‘Parellelwertungen in der Laiensphäre: Der EuGH und die Vorratsdatenspeicherung’ (2009) 6 Zeitschrift für Rechtspolitik 174–77. 164 Art 1 (1) Directive 2006/24/CE.

Reticular Levels of Protection Within Police 1031 location at the start of the communication). It is however worth noting that the content of communications remains excluded.165 (ii) Implementation within Member States The analysis of the directive shows the fragility of the standards of personal data protection. This observation is shared by the decision of the German166 and Romanian167 Constitutional Courts. Unlike the latter, the German Constitutional Court did not deem Directive 2006/24 on data retention unconstitutional. The decision simply records the unconstitutionality of the transposition measures adopted by the national legislator. In fact, the Court considered that the text of the directive allowed national parliaments certain room for manoeuvre, in such a way that it could be implemented by the German state in respect of the fundamental rights as guaranteed by the Fundamental Law (Grundgesetz).168 In accordance with Solange case law, the judicial review carried out by the German Constitutional Court by applying the constitutionally protected fundamental rights does not contradict the primacy of community law.169 In addition, the Court holds that the data retention does not in itself violate the fundamental rights.170 Nevertheless, it constitutes serious interference in the right to privacy, interference which should be the object of severe restrictions. Yet, analysis of the texts shows that the retention of personal data has an almost unlimited remit. Even though the content of a communication remains confidential, the simple accumulation of personal information makes it possible to establish a profile on all business activities by the citizen.171 Consequently, the Constitutional Court has developed within its decision criteria according to which the retention of data is justified. There is an absolute prohibition of the retention of data for non-definite or non-definable purposes.172 Similarly, the retention of data justified by prevention objectives remains exceptional.173 Here, the constitutional judge defines restrictive criteria based on the distinction between retention itself and the future use of the data retained. Both the retention and future use of the information by the authorities is subject to control of proportionality.174 The distinction between the two operations is necessary to guarantee the transparency of data processing, as it makes it possible to establish distinct criteria according to which it may be a question of simple retention or of subsequent processing of the personal data.175 On the one hand, the retention operation should be the object of high-level data security which should be guaranteed in law itself. For this reason, the legislator is obliged to set out transparent unambiguous provisions, while choosing the most suitable technical means to guarantee the protection of the information retained. In turn, telecommunications 165 166 167 168 169 170 171 172 173 174 175

Art 5 (2) Directive 2006/24/CE. BVerfG 1 BvR 256/08 of 2 March 2010. Romanian Constitutional Court, decision no 1258 of 8 October 2009. BVerfG 1 BvR 256/08 of 2 March 2010, paras 186–87. Ibid para 187. Ibid. Ibid para 211. Ibid para 205. Ibid para 206. BVerfG 1 BvR 256/08 of 2 March 2010, para 213. Ibid para 214.

1032 Data Protection in the European Penal Area enterprises are obliged to adopt good practices and standardised procedures to comply with the legal criteria aimed at data security.176 On the other hand, the provisions governing the future use of the data retained should define the grounds, purpose and scope for processing while respecting the principle of proportionality.177 Within the framework of criminal investigations, the use the data by the judicial authorities therefore presupposes clear evidence to suggest that a person has committed or attempted to commit a serious offence.178 In practical terms, the gravity of the act in question stems from the sanction incurred in accordance with the law. One general provision would be insufficient.179 When the measures taken by the police authorities are responding to a prevention objective, the subsequent processing of data retained is only justified in the presence of essential legal interests, such as the protection of a person’s life, their physical integrity or their liberty. The threat to these rights should be concrete for the retained data to be used. An abstract risk or the protection of just any interest would not constitute sufficient justification.180 The decision of the German Constitutional Court therefore suspended the application of the national transposition law of Directive 2006/24. The criteria developed by the Court will probably influence new political discussion in Germany and may also reopen debate at a European level. In fact, a reform of the directive seems even more imperative because the High Courts of other states have ruled on the issue; they consider data retention in itself a practice contrary to Article 8 of the ECHR.181 In turn, last May, the High Court of Ireland agreed to rule on the right to data protection brought by a legal entity, judging national measures on data retention weak with regard to the guarantees required by the constitutional order.182 In relation to the transposition measures of the directive, it will be interesting to study the response given by the ECJ to the preliminary issue that the Irish judge deemed it necessary to rule on the legality of national provisions. The European legislator is therefore invited to examine whether data retention is compatible with the right to privacy, even more so because the use of alternative methods such as the ‘quick freeze’ to date have not been paid any particular attention. In this respect, the first step should be a careful empirical study of the need to retain data in comparison with possible alternatives. Whether a matter for the police, public prosecution or intelligence services, the interests highlighted by the investigative authorities hold a prominent place in debates. The tendency is to justify the need to retain data through strikingly powerful suggestive examples. These isolated examples cannot take the place of a study lead by independent assessors if we want to better measure all the implications of the choice of protective or coercive measures.

176 177 178 179 180 181 182

Ibid para 224. Ibid para 226. Ibid para 227. Ibid. Ibid para 231. Romanian Constitutional Court, decision no 1258 of 8 October 2009. Digital Rights Ireland Ltd v Minister for Communication & Ors [2010] High Court of Ireland IEHC 221.

Reticular Levels of Protection Within Police 1033 3. European Actors who have Developed Secure Data Exchange Networks The last category of information exchange system includes secure networks developed within European law enforcement bodies. In fact, both Europol and Eurojust process personal data. (a) Europol One of the European bodies whose main function consists in collecting, storing, processing, analysing and exchanging information is Europol.183 Created in 1995184 and having recently acquired the status of EU agency,185 Europol is in charge of helping the law enforcement authorities of Member States prevent and fight organised crime, terrorism and other forms of serious crime. To carry out its duties, Europol transmits, to the law enforcement services of states, intelligence which affects them, and indicates possible links between different criminal acts. The exchange of information is carried out through Europol National Units (ENU). In general, Europol processes data, even personal data, when required to in order to meet its objectives.186 With this aim, an internal information processing system was developed. It comprises three components: the Europol Information System (EIS), Analysis Work Files (AWF) and the SIENA application.187 (i) The Europol Information System (EIS) The personal data collected by the EIS concerns both people convicted or suspected of having committed or participated in committing an offence, as well as people for whom there is concrete evidence or good reason to believe that they will commit offences in the future.188 As within the framework of the SIS, this second category corresponds to a risk control policy which suggests a broad and not very transparent interpretation of the individuals potentially concerned. More specifically, this database may contain biographical and biometric information (including DNA profiles), the offences involved, as well as other notes such as the suspicion of membership of a criminal organisation.189 Only Europol National Units, liaison officers, authorised Europol staff and their manager have access to the contents of the database.

183 Art 5 Council Decision 2009/371/JAI of 6 April 2009 regarding the creation of the European Police Office (Europol) [2009] OJ L121/37-66. 184 Convention established on the basis of Art K.3 of the Treaty on European Union, on the use of data processing in the field of customs [1995] OJ C316/34Art, hereinafter the Europol Convention. 185 Council Decision 2009/371/JAI of 6 April 2009 regarding the creation of the European Police Office (Europol) [2009] OJ L121/37, hereinafter the Europol Decision. 186 Art 10 para 1 Europol Decision. 187 For an analysis of personal data protection within the more general framework of Europol work see J Wolter and others, Alternativenentwurf Europol und europäischer Datenschutz (Heidelberg, C F Müller, 2008) 263ff; TB Petri, Europol: Grenzüberschreitende polizeiliche Tätigkeit in Europa (Baden-Baden, Nomos, 2001) 52ff. 188 Art 12 para 1 Europol Decision. 189 Art 12 para 2 Europol Decision.

1034 Data Protection in the European Penal Area (ii) Analysis Work Files (AWF) The information included in the EIS and that relating to offences which fall within the remit of Europol may be stored in the Analysis Work Files.190 The number of people involved here is greater: the decision refers explicitly to witnesses, victims, contacts or accomplices, as well as the individuals who provided the information on the offences in question.191 The text nevertheless explains that sensitive data may only be processed when strictly necessary for the purpose of the file. It does however prohibit the definition of analysis categories on the sole basis of its criteria.192 (iii) The SIENA application Lastly, Europol makes the SIENA application (Secure Information Exchange Network Application) available to Member States, a secure computerised network which enables the law enforcement authorities of Member States to exchange information from their national platforms. It is important to highlight that the data can also be communicated between European law enforcement organisations. Within this framework, Europol has drawn up agreements with Eurojust, OLAF and FRONTEX.193 Similarly, the exchange of intelligence is possible with third party countries which show an adequate level of personal data protection.194 Various provisions of the decision refer to data protection.195 In accordance with the principle of purpose, national authorities may only process data extracted from files with the sole aim of preventing and fighting forms of serious cross-border crime. Similarly, the processing of data by Europol is only authorised within the framework of fighting offences which fall within its remit.196 The retention of data is authorised for the duration required to carry out Europol duties. The maximum retention period for AWFs is fixed at three years with the possibility of renewing the retention for the same period.197 The Europol decision also confers rights on people whose personal data is processed. More specifically, it mentions the right to be kept informed and the right to access,198 and the right to rectification and deletion of the data.199 However, respect for national legislation still plays a key role in the cross-border exchange of data, including with regard to individual rights: restrictions imposed on the national authority providing the information should also be respected by the foreign authority extracting the Europol files.200 Lastly, it is necessary to highlight that the exchange of intelligence

190

Art 14ff Europol Decision. Art 14 para 1 Europol Decision. 192 Ibid. 193 Art 21 Europol Decision. 194 Art 23 Europol Decision. 195 For a more profound study of the issue see E Weβblau, Datenübermittlungen und Datenverarbeitung in den Informationssystem von Europol in J Wolter et al (eds), Alternativenentwurf Europol und europäischer Datenschutz (Heidelberg, C F Müller, 2008) 318–95. 196 Art 19 para 1 Europol Decision. 197 Art 20 Europol Decision. 198 Art 30 Europol Decision. 199 Art 31 Europol Decision. 200 Art 19 paras 2–3 Europol Decision. 191

Reticular Levels of Protection Within Police 1035 between Europol and Member States is now subject to the provisions of Framework Decision 2008/977.201 The Europol decision also sets out the creation of regulatory bodies. First, Member States appoint a national authority in charge of verifying the legality of the introduction, investigation and transmission of personal data in accordance with the national law.202 Common regulators are also set up on a supranational level. Made up of members of national regulators, these monitor Europol activities affecting personal data protection and its legality.203 Common regulators are assisted in their duties by a data protection representative appointed from within Europol.204 Any person deemed to have been adversely affected in his right to personal data protection, can, if Europol discards his request for verification, access, rectification, or deletion of data, appeal to the common regulators.205 With regard to the possibility of bringing legal action, the decision only refers to the avenues of redress open before national courts of law.

4. Eurojust Eurojust was set up in 2002 to enhance coordination and cooperation between national legal authorities in the fight against serious forms of cross-border crime.206 The powers of this body have been enhanced by the recent Decision 2009/426 of the Council,207 including its capacities to process personal data.208 The data collection system is based on the obligation of Member States to communicate the data they hold to Eurojust. In more practical terms, the national member of Eurojust is informed by the law enforcement authorities of his country regarding the information enabling Eurojust to carry out its duties.209 With this aim, an automatic file management system has been put in place. This is made up of temporary work files relating to specific cases and an index, including the personal and non-personal data which is of interest to current investigations.210 All personal data is recorded in the file management system. More specifically, information concerning people who have been convicted or are suspected of having committed

201

As was not the case for the Europol Convention. Art 33 Europol Decision. Art 34 Europol Decision. 204 Art 28 Europol Decision. 205 Art 32 para 1 Europol Decision. 206 Council Decision 2002/187/JAI of 28 February 2002 establishing Eurojust to enhance the fight against serious forms of crime [2002] OJ L63/1-13. 207 Council Decision 2009/426/JAI of 16 December 2008 on the strengthening of Eurojust, modifying decision 2002/187/JAI establishing Eurojust to enhance the fight against serious forms of crime [2009] OJ L138/14-32. The developments to follow will refer to the Consolidated version of Decision 2002/187 as modified by decision 2009/42, available in the appendix of the note from the General Secretariat of the Council, doc no 5327/3/09 COPEN 9 EUROJUST 3 EJN 2, hereafter Consolidated version of the Eurojust Decision. 208 E de Busser, Data protection in the EU and US Criminal Cooperation: A Substantive Law approach to the EU Internal and transatlantic Cooperation in Criminal Matters between Judicial and Law enforcement authorities (Antwerp, Maklu, 2009) 137ff. For a detailed analysis see D Alonso Blas, ‘The new Council decision strengthening the role of Eurojust: does it also strengthen data protection at Eurojust?’ in S Gutirth, P De Hert (eds), Data Protection in a Profiled World (Heidelberg, Springer, 2010) 193. 209 Art 13 Consolidated version of the Eurojust Decision. 210 Art 16 Consolidated version of the Eurojust Decision. 202 203

1036 Data Protection in the European Penal Area or participating in committing one of the offences which fall within its remit.211 This data may include various types: it may be biographical data, names and addresses, vehicle registrations, DNA profiles, photographs, fingerprints, or data generated or processed within the framework of the provisions of telecommunications services.212 As a rule, this information may be retained for the duration required to fulfil Eurojust objectives. It should nevertheless be deleted at the termination of any criminal proceedings within all Member States, unless its retention is necessary for Eurojust to provide assistance.213 These provisions are supplemented by a statement of rights enjoyed by individuals in accordance with personal data protection. The first decision regarding the creation of Eurojust recognised the right to access,214 and the rights to rectification and deletion of data.215 As within the framework of the new Europol decision, information exchanges between the European body and national authorities are now governed by the provisions of Framework Decision 2008/977. The exchange of information may also take place between Eurojust and other European law enforcement actors,216 in particular Europol and OLAF. Similarly, Eurojust may share data with third party countries with which it has drawn up agreements on condition that they show an adequate level of personal data protection.217 The processing of personal data by Eurojust is the object of a regulatory system which is very similar to that which exists for Europol. A common regulatory body, made up of judges appointed by Member States, monitors the Eurojust activities linked to the processing of personal data.218 Requests for access, rectification or deletion of personal data may be the object of appeals before the common regulatory body.219 A data protection representative has also been put in place.220 It is still not possible to draw up a complete assessment of the modifications brought about by the new text, as Member States have only just implemented the new Eurojust decision. In 2014, the Commission is set to conduct the first assessment of the information exchange system and propose any adjustments it deems useful.

5. Interim Conclusion All the examples examined show to what extent the limited development made within the field of personal data processing within the framework of judicial and police cooperation in criminal matters has caused the fragmentation of its legal framework. It follows that the use of personal information lacks clear consistent limits. In particular, the study of the instruments adopted highlights: —

211 212 213 214 215 216 217 218 219 220

the heterogeneity of the purposes cited, from security to general interest, from fighting terrorism to the prevention of reoffending, from the detection of criminal risks to the exercise of legal proceedings; Art 15 Consolidated version of the Eurojust Decision. Art 15(b) Consolidated version of the Eurojust Decision. Art 21 Consolidated version of the Eurojust Decision. Art 19 Consolidated version of the Eurojust Decision. Art 20 Consolidated version of the Eurojust Decision. Art 26 Consolidated version of the Eurojust Decision. Art 26 bis Consolidated version of the Eurojust Decision. Art 23 para 1 Consolidated version of the Eurojust Decision. Art 23 para 1 Consolidated version of the Eurojust Decision. Art 17 Consolidated version of the Eurojust Decision.

Issues of Data Transfer to Third Party Countries 1037 —

—

data processing limitations weakened by the weight of general interest. In fact, all the instruments examined reveal the tendency for the latter to take precedence over the protection of privacy of individuals; the existence of different regulatory bodies in terms of their nature, structure, composition and degree of independence. In particular, the examples of Europol and Eurojust highlight the choice to put in place non-judicial regulators instead of opting for the intervention of the European judge on as sensitive an issue as the processing of data for law enforcement purposes.

In short, European personal data processing systems on criminal matters offer poor protection for the privacy of citizens. The assessment drawn up for ‘intra-European’ criminal cooperation sets out a second section on the external action of the EU.

D. ISSUES OF DATA TRANSFER TO THIRD PARTY COUNTRIES

The issue of personal data protection is not confined within EU borders. Exchange has also experienced unprecedented development within the framework of international cooperation on criminal matters. The differences between legislations of EU Member States remain, but inconsistencies are even more pronounced between the EU and third party states, with regard to both normative provisions and the concept of personal data protection rights. The problems identified in analysing European instruments are accentuated here. First, agreements signed before the new treaties came into force were not negotiated transparently. In addition, the broad definitions of the terms used damage the predictability of exchange, the data actually communicated, its use and the authorities which have access to said information.221 In this respect, the development of a European model of personal data protection is even more interesting because the conclusion of agreements between EU and third party countries on the exchange of information is based on the principle of adequacy. Two examples illustrate these aspects: ‘PNR’ agreements and ‘SWIFT’ agreements.

1. ‘PNR’ Agreements With the aim of preventing terrorist threats, a law adopted in 2001 by the United States obliged airlines providing flights into and out of their territory to provide American law enforcement authorities with data relating to passengers recorded on their automatic reservation systems.222 Similar legislation has also been adopted by Canada and Australia.223 Under threat of sanctions by American authorities, a certain number of European airlines have since 2002 communicated data relating to passengers, putting them in violation of EU

221

See V Mitsilegas, ‘Transatlantic counter-terrorism Cooperation after Lisbon’ (2010) 3 Eucrim 111–17. US Aviation and Transport Security Act from 19 November 2001, as amended by the 2004 Intelligence Reform and Terrorism prevention Act. 223 See in particular Commission, ‘Proposal of the Council relating to the conclusion of the agreement between the European Union and Australia in the processing and transfer of data from passenger files’ COM (2011) 281 final. 222

1038 Data Protection in the European Penal Area legislation. The processing of this personal data, identified by the acronym PNR (Passenger Name Records), required the urgent negotiation of agreements between these countries and the EU.224 This was necessary because the countries receiving the data could only provide a lower degree of protection, making the rights of the people concerned ineffective. (a) The Legal Framework Since 2003, European debates have announced their concerns regarding the level of PNR data protection, highlighting that the transfer of information as imposed by the legislation of third party states and the lack of international agreements leads to the bypassing of European protection standards.225 In fact, in the absence of any regulations, Member States can avoid the obligations imposed on them by EU law by simply transferring the data to third party countries.226 In charge of negotiating international agreements, the Commission initially envisaged the adoption of a global approach to the issue of PNR data protection.227 In the meantime, the EU has concluded agreements relating to the exchange of this type of information with the United States,228 Canada229 and Australia.230 The agreements signed with the United States were the object of a laborious adoption process, and raised many questions. The first PNR agreement concluded with the United States in 2004 raised the question of the choice of legal basis. In particular, it was a question of determining whether said agreement fell under the remit of the first or third pillar. In its so-called ‘PNR’ decision, the ECJ cancelled the decision relating to the conclusion of the agreement between the European Community and the United States adopted within the framework of the community pillar: it held in fact that the transfer of PNR data had the objective of public security and State activities relating to the field of criminal law. For this reason, it fell outside the remit of Directive 95/46 in accordance with its Article 3(2), even though said data was initially collected by financial operators for commercial purposes.231 Until that time, the ECJ had made a broad interpretation of the remit of the directive, but it adopted a restrictive approach with regard to its applicability in the transfer of data to third party countries for law enforcement purposes. Following the cancellation of this first text, a second PNR agreement was concluded with the United States in 2007.232 224 It is important to distinguish PNR data from advance intelligence regarding passengers, known as API (Advance Passenger Information). The latter includes biographic information extracted from the part of the passport legible by machine (name, address, date of birth and nationality of the document holder). It is agreed that this data should be transferred to the authorities in charge of carrying out border controls and fighting illegal immigration. 225 See in particular European Parliament, Resolutions P5 TA (2003) 0097 and P5 TA (2003) 0429. 226 Hijmans, Scirocco (n 72) 1499. 227 Commission, ‘Communication on the transfer of data from passenger records (Passenger Name Record— PNR): A global approach of the European Union’ COM (2003) 826 final. 228 Agreement between the European Union and the United States of America on the processing and transfer of data from passenger files (PNR data) by airlines to the American Department of Homeland Security (2007] OJ L204/18-25. 229 Agreement between the European Community and the government of Canada on the processing of data relating to advance information on passengers and passenger files [2006] OJ L82/14. 230 Agreement between the European Union and Australia on the processing and transfer of data from passenger files (PNR data) from the European Union by airlines to the Australian customs service [2008] OJ L213/49. 231 Joined cases C-317/04 and C-318/04 Parliament v Council (ECJ, 30 May 2006). 232 Agreement between the European Union and the United States of America on the processing and transfer of data from passenger files (PNR data) by airlines to the American Department of Homeland Security (2007) OJ L204/18-25.

Issues of Data Transfer to Third Party Countries 1039 The decision in question had significant consequences in terms of personal data protection. Again, the difference between the levels of protection between the former first and third pillars came into play. In accordance with Directive 96/45, the transfer of personal data to third party countries and its successive processing is authorised subject to the principle of adequacy: the legislation of third party countries should guarantee an adequate level of protection233 in particular with regard to the circumstances relating to the transfer, nature of the data, purpose and duration of the processing, general, sector and professional standards in force, as well as security measures.234 It fell to the Commission to carry out a prior assessment aimed at stating whether third party States guaranteed an adequate level of protection.235 If not, Member States suspended all data transfers to the countries in question.236 The transfer of data to third party States for the purposes of detection and prevention of criminal offices, investigations, proceedings and the execution of sentencing is governed by Framework Decision 2008/977.237 This also mentions the criteria of adequacy.238 However, a series of aspects limit its scope. First, the level of protection guaranteed in terms of criminal cooperation is lower in relation to that guaranteed by the directive. For example, the first agreement signed with the United States set out a maximum PNR data storage period of three years and six months, whereas American legislation only establishes a maximum storage period in a limited number of cases.239 In addition, the Framework Decision leaves it up to Member States to assess the level of protection offered in the third party States in question based on very vague criteria. It states that the assessment should in particular take into consideration the nature of the data, purpose, duration and processing envisaged without defining a minimal protection threshold which should be guaranteed with regard to all these aspects.240 In addition, Framework Decision 2008/977 requires that data be transferred to third party states when these provide an adequate level of protection, but this condition may be discarded when the legislation of the Member State which carries out the transfer claims legitimate interest such as significant public interest.241 Lastly, it is important to recall that the Framework Decision excludes from its remit the bilateral exchange of data when a single Member State is concerned.242 To adopt a more consistent approach with regard to exchanging information with third party countries, in 2007 the Commission presented a Framework Decision proposal relating to the use of PNR data for law enforcement purposes.243 This text constituted the first step towards a more uniform approach in a field where personal data protection is particularly complex due to its fragmentation. The agreements may sound similar, but the methods of transmission as well as the data protection rules vary from one agreement to another.

233

Art 25 para 1 Directive 95/46. Art 15 para 2 Directive 95/46. 235 Art 25 and 31 para 2 Directive 95/46. 236 Art 25 para 4 Directive 95/46. 237 Art 13 Council Framework Decision 2008/977. 238 Art 13 para 1(d) Council Framework Decision 2008/977. 239 For a more profound analysis of the agreements, see de Busser (n 19) 358ff, in particular on this point 380–81. 240 Art 13 para 4 Council Framework Decision 2008/977. 241 Art 13 para 4(a)(ii) Council Framework Decision 2008/977. 242 This is deduced by an a contrario reading of Art 1 para 2 Council Framework Decision 2008/977. 243 Commission, ‘Proposal for a Council Framework Decision on the use of Passenger Name Record (PNR) for law enforcement purposes’ SEC (2007) 1422 SEC (2007) 1453 COM (2007) 654 final. 234

1040 Data Protection in the European Penal Area (b) Inconsistent Protection Standards Transfers to the United States and Australia affect 19 categories of data, including biographical information, information relating to reservations and payments, as well as additional information. As for the agreement concluded with Canada, it refers to 25 types of data. In addition, the use of sensitive data is authorised within the framework of data exchange with the United States. Similarly, data protection rules may differ according to the agreements concluded and ultimately depend on national legislation. So the American Department of Homeland Security (DHS) is obliged to adopt stricter data protection measures than those applied by European authorities in their national PNR systems and vice versa.244 Only the United Kingdom has developed a PNR system, while a certain number of Member States have recently adopted ad hoc legislation or are currently planning to implement a PNR data processing system.245 Similarly, the retention period varies. For example, the storage of data in the event of active use is authorised for a period of seven years by the United States, two and half years by Australia and 72 hours by Canada. Recognising the fragmentation of the rules applicable to PNR data, the Commission recently proposed the adoption of principles to guide the EU in PNR agreement negotiations.246 These are linked primarily to the following criteria: — —

— — — — — — —

a clear precise definition of the processing scope of transferred data; limitations on purposes, namely law enforcement and security fighting terrorism and serious forms of cross-border crime (a definition of offences should also be specified); maximum limitations on authorised transfers to the extent required to achieve predefined aims; proportionality of transfers; restrictions on the use of sensitive data; existence of an independent regulatory body; guaranteed right of access, rectification and deletion; existences of avenues of redress; restrictions on subsequent transfers to other public authorities or third party countries.

Of course, this does not unify the rules, but it should guarantee a more consistent approach from the EU on such matters. Nevertheless, it is important to recall that the European political system has already played a part through the adoption of the texts previously examined in favour of effective processing and the availability of personal data. The more this strategy is implemented, the less likely it seems that the increasing use of personal information will be counterbalanced by a guaranteed right to privacy. The transnational data exchange system once again risks bypassing European standards of personal data protection, thus contributing to the weakening of an already fragile assertion of this right.

244

Point 5 of the PNR agreement between the United States and the European Union. See Commission, ‘General presentation of the management of information in the field of freedom, security and justice’ (Communication) COM (2010) 385 final, 21. 246 Commission, ‘Communication on the global approach to transfers of Passenger Name Record (PNR) data to third countries’ COM (2010) 492 final. 245

Issues of Data Transfer to Third Party Countries 1041 (c) Democratic Control of Data Protection With regard to proportionality and the need to transfer PNR data, the European Parliament, the European data protection controller and the Article 29 work group have taken a critical position on several occasions.247 In fact, the definition of the purposes for which the exchange of information is authorised, ie terrorism and any other serious cross-border crime, remains vague and can easily be the object of broad interpretation. Similarly, the list of data affected is vast and may result in problems with regard to the principle of proportionality. With regard to the people affected, we again find the category of individuals who have neither been convicted nor suspected of having committed an offence but who may constitute a risk to public security.248 These information transfer limits are a matter of particular importance given the purposes and possibilities for use now authorised. With regard to the purposes, all PNR agreements share the objective of fighting terrorism and other serious forms of cross-border crime. The processing of data is in this sense largely understood. The Commission distinguishes three types of use of PNR data within the field of criminal law.249 The information retained may be used in investigations and proceedings after an offence has been committed (historic use). The authorities may in addition compare intelligence to define the risks of an offence being committed or identifying suspects within the framework of a preventative initiative (real-time use). Lastly, the data may be used for analytical purposes, which requires a longer retention period (proactive use). With regard to the possibilities for use, the agreements increase not only the amount of data used for law enforcement purposes, but also the number of authorities which have access to this information. In accordance with the agreements concluded, PNR data may be communicated to the DSH, the border services agency of Canada and the Australian customs services, which may in turn transfer it to the competent American, Canadian or Australian authorities on matters of law enforcement and the fight against terrorism. For example, the DHS analyses the PNR data communicated and shares its analysis with the law enforcement services of the EU, Europol and Eurojust. The exchange of data with third party countries thus amplifies the development of a real personal data exchange network, which makes dialogue on the level of data protection guaranteed within this framework all the more urgent.250 Recently the European Commission presented a directive proposal relating to the use of data from passenger files for the purposes of prevention, detection, investigations and criminal proceedings.251 The proposal aims to harmonise national provisions relating to the retention, collection, processing and transfer of PNR data stored by airlines making international flights to and from

247 See for example ‘The Future of Privacy. Joint contribution to the Consultation of the European Commission on the legal framework for the fundamental right to protection of personal data’, 1 December 2009, 02356/09/EN, WP 168. 248 More specifically for a criticism of this aspect see F Galli, ‘Passenger Name Record Agreement: The umpteenth Attempt to Anticipate Risk’ (2010) 3 Eucrim 124–28. 249 COM (2010) 492 final. 250 For a critical analysis of the PNR agreements signed with the United States, see V Papakonstantinou, P de Hert, ‘The PNR agreement and transatlantic anti-terrorism cooperation: no firm human rights framework on either side of the Atlantic’ (2009) 46 Common Market Law Review 885–919. 251 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime’ COM (2011) 32 final.

1042 Data Protection in the European Penal Area at least one Member State. The text refers in particular to the adoption of uniform rules relating to the obligation imposed on airlines to transmit this data to the law enforcement authorities of both of Member States and third party countries. However, the proposal only discarded Framework Decision 2008/977 with regard to the protection of data processed. Protection standards remain an issue which becomes even more interesting because last December the Council mandated the Commission to negotiate an agreement between the EU and United States on the protection of personal data transmitted or processed to prevent terrorism and transnational crime.252 The agreement was signed by the parties on 17 November 2011 and presented as an improvement to personal data protection. However, the text still has to be agreed by the European Parliament. In fact, the new treaties offer MEPs the possibility of exercising careful parliamentary controls, as was the case when concluding the recent SWIFT agreement.

2. SWIFT Agreements So-called SWIFT agreements also constitute an example of implications affecting personal data protection within the framework of information exchanges with third party states. These instruments stem from the Terrorist Finance Tracking Program (TFTP), drawn up by the United Stated with the aim of identifying, monitoring and bringing proceedings against the perpetrators of terrorist acts and those financing them. The American Treasury Department directed the American subsidiary of a Belgian enterprise to communicate certain financial services data passing through its network.253 The company SWIFT subsequently modified its structure enabling it to exclude half the data processed from the remit of the American authorities. Just as in the case of PNR data, legislation adopted by a third party state was likely to put European companies in a position of conflict with EU provisions in terms of data protection.254 To fill this legislative void, a first agreement was negotiated between the United States and the EU relating to the processing and transfer of financial services data for the purposes of the TFTP. This agreement however was disapproved by the European Parliament.255 A second so-called SWIFT II256 agreement was concluded in July 2010 and this time it was approved by the European Parliament.257 The SWIFT agreement places an obligation on designated financial services providers to oblige them to communicate to the American Treasury certain financial services data requested by the American authorities on the basis of specific assessments of geographical threats and requests adapted for the purposes of fighting terrorism and its financing.258

252

The mandate was adopted by the Council on 3 December 2010. The text has not been made public. The involvement of the company SWIFT in the application of the programme adopted by the American Treasury was revealed by American newspapers in 2006. For an analysis of the American legislation, see de Busser (n 19) 384ff. 254 Belgian Commission for the protection of privacy, Notice no 37/2006 of 27 September 2006 relating to the transmission of personal data by SCRL SWIFT following summons of the UST (OFAC). 255 European Parliament, Resolution P7 TA (2010) 29. 256 Agreement between the European Union and United States of America on the processing and transfer of financial services data from the European Union to the United States for the purposes of the Terrorist Finance Tracking Programme, doc no 11222/1/10 REV 1, 11222/1/10 REV 1 COR 1 and 11350/2/10 REV 2, hereinafter the SWIFT II Agreement. 257 European Parliament, Resolution P7 TA (2010) 279. 258 Art 3 SWIFT II Agreement. 253

Prospects for Personal Data Protection in Europe 1043 The information relates among other things to the names, account numbers, addresses and identification numbers of the instructing parties or beneficiaries of certain transactions.259 The American Treasury may obtain this data exclusively for the purposes of the ‘Terrorist Finance Tracking Programme’, when there is reason to believe there is a link between a person identified and terrorism or its financing. Each request issued is examined by Europol to verify whether it respects the terms of the agreement.260 The financial services data may be retained for a period not exceeding that which is required for the purposes of specific investigations and evidence. The data extracted may be retained for a maximum of five years.261 The agreement guarantees the individual the right of access,262 rectification and deletion of the data collected.263 The actual scope of these rights however is difficult to define. For example, the right of access takes the form of a simple confirmation from the competent data protection regulators that the rights of the person concerned have been respected. If the data proves useful for prevention, investigations or proceedings against terrorist acts or their financing, the American Treasury may subsequently transfer it to the law enforcement authorities or organisations in charge of public security or fighting terrorism in the United States.264 With the agreement of the Member State concerned, it may communicate the data relating to an EU citizen or resident to third party States. In return, the United States provides Europol, Eurojust and Member States of the EU with any evidence relating to the existence of terrorist plots in the EU.265 They will also help the EU develop a programme similar to the TFTP in which case a revision of the agreement will be necessary. Independent supervisors carry out controls to verify that the agreement is being respected. The agreement has a duration of five years and will be the object of an assessment six months after it comes into force by an EU re-examination team led by the Commission, made up of representatives of the two authorities in charge of personal data protection and a figure from the legal world. Lastly, as with data retention, European bodies are obliged to carry out independent assessments on the need to transfer data and its impact on the fundamental rights.

E. PROSPECTS FOR PERSONAL DATA PROTECTION IN EUROPE

The examples analysed show how important an issue data protection currently is for police and judicial cooperation in criminal matters. In conclusion, the following elements are highlighted among the negative aspects of personal data protection: — —

259 260 261 262 263 264 265

the principle of availability of information is a counter-programme in relation to the data protection objective; the predefined purpose of collection—a crucial principle of data protection—has been eroded;

Art 5 para 7 SWIFT II Agreement. Art 4 para 4 SWIFT II Agreement. Art 6 SWIFT II Agreement. Art 15 SWIFT II Agreement. Art 16 SWIFT II Agreement. Art 7 SWIFT II Agreement. Art 9 SWIFT II Agreement.

1044 Data Protection in the European Penal Area —

—

data collection is set to be extended to categories beyond the criteria of suspicion or danger, thus exceeding the framework of criminal proceedings and police prevention; in general, the possibility of an automatic European data processing network is set to be systematically extended, without the guarantee of any real consistent data protection.

Constructive views should stem from these negative elements. Part of the response includes re-establishing the relationship between data protection and the interest taken in this information by European authorities and state institutions. The right to personal data protection should be viewed as the rule and its collection only a well-founded exception.266 The Stockholm programme recognises the need to adopt a consistent structured information management policy.267 However, at the heart of the programme is the new principle of availability. The subsequent development of processing techniques by law enforcement authorities is also expected. In particular, the Stockholm programme envisages the rationalisation of existing instruments, interoperability between information systems and the adoption of a large-scale plan of action for information systems.268 In addition to the implementation of the instruments adopted, the creation of new databases is planned, such as a European police records information system (EPRIS). This type of development would make a real network of information available to the law enforcement authorities of Member States, the EU and third party countries. With regard to the approach adopted, it is worth considering the prospects for enhanced parliamentary control, consistent legal protection, as well as global personal data protection. 1. Prospects for Increased Parliamentary Control The Stockholm programme recognises that the strategy which is being developed should include an enhanced mechanism for data protection.269 This consideration is now key if one considers that Article 8 of the Charter of Fundamental Rights confers autonomy and in certain respects the ‘constitutional’ value of the right to data protection within the EU.270 This approach calls for intervention in several key areas. First, the European instruments negotiated within the framework of the third pillar were not adopted using a transparent process, and essentially restrict intergovernmental debate. In this respect, the TFEU gives a completely new impetus to personal data protection,271 by applying the rules of ordinary legislative procedure even in criminal matters. Similarly, the assessment procedure for the adequacy of the level protection within a third party country has been extended.272 We can therefore hope that the European Parliament will play an active role in the future, just as it has done within the framework of the agreements on data exchange with third party countries. The increased powers of the legislative assembly are therefore working towards

266

Braum (n 17) 206. Point 4.4.2 Stockholm programme. 268 Ibid. 269 Ibid. 270 See above. 271 P Hustinx, ‘Impact on the Lisbon Treaty on personal data protection in the field of law enforcement’ (ERA conference ‘Personal data protection in the era of SWIFT, PNR, Prüm and e-justice’, Trier, 31 May 2010’) www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/EDPS/Publications/Speeches/2010/1005-31_Speech_ERA_FR.pdf. 272 COM (2010) 609 final, 18. 267

Prospects for Personal Data Protection in Europe 1045 increased democratic legitimacy for European instruments and its public debates provide greater transparency for citizens. 2. Prospects for a Consistent Legal Framework Analysis of the legal framework also shows a high level of fragmentation. This is characterised on the one hand by inconsistent levels of protection guaranteed respectively by Directive 95/46, Framework Decision 2008/977 and the multitude of legal systems applied within the field of police and judicial cooperation in criminal matters. Recently, the Commission presented its ‘global approach to personal data protection within the European Union’.273 The text highlights above all the need to guarantee a high level of protection while providing a transparent consistent legal framework in all fields. With regard to police and judicial cooperation in criminal matters, greater consistency in the legal systems applied is also envisaged.274 All being well, new instruments adopted within this field should be subject to the provisions of Framework Decision 2008/977, which will mark the first step towards greater legal consistency. However, the rules set out by the Framework Decision include a series of exceptions which, in the name of security, often jeopardise the right to data protection. It would therefore be desirable to rebalance the right to privacy and general interest, taking into consideration the specific features of criminal matters. The standards set out by Directive 95/46 form a reference corpus which can used to construct legislation which is both uniform and more protective of individuals. As a first step, the Commission envisages examining the possible extension of the general data protection framework to the fields of criminal cooperation and data processing by national law enforcement authorities.275 In particular, it recognises the need to reaffirm the principles of purpose and need as well as to better justify European legal instruments based on subsidiarity.276 Similarly, a harmonisation of the restrictions on people’s rights in terms of data protection is being examined.277 To provide adequate personal data protection, these rules should apply to both national authorities and supranational bodies within the European criminal law enforcement area. Such an approach seems to emerge through two legislative initiatives presented by the Commission in January 2012, namely the proposal for a General Data Protection Regulation278 and the proposal for Police and Criminal Justice Data Protection Directive.279 The latter’s purpose is to harmonise data protection rules in criminal matters by adopting standards that must apply both to national and cross-border cases. It is worth noting that the proposal aims at providing a comprehensive legal instrument regulating the various issues police and judicial cooperation raises. Even though the proposal marks a step forward in protecting personal data, it neither questions the availability principle nor adopts precise definition of individual rights’ restrictions. Greater care should be taken in implementing these types of measures so that the political objectives displayed do not become purely declaratory. 273 274 275 276 277 278 279

COM (2010) 609 final. COM(2010) 385 final. COM (2010) 609 final, 16. COM (2010) 385 final. COM (2010) 609 final, 16. COM (2012) 11 final. COM (2012) 10 final.

1046 Data Protection in the European Penal Area 3. Prospects for Global Personal Data Protection This approach will lead quite naturally to the development of a European personal data protection model which the EU can aspire to promote on an international level.280 The ambition of the Commission is simply to strive for the EU to play a driving role in the promotion of strict data protection standards.281 This type of legal framework depends on the clear definition of principles aimed at controlling the actions of the authorities responsible for data processing and protecting the rights of the people affected. It should therefore be an essential component in assessing the principle of adequacy whenever the EU negotiates agreements authorising the transfer of data to third party countries. Lastly, the normative provisions can be supplemented by additional or alternative measures. For example, data processing operations, such as encryption or anonymisation, are not being implemented effectively at this current time. The enhancement of these technical measures would contribute to better personal data protection, as expressed by the concept of ‘Privacy Enhancing Technologies’ (PET).282 The principle of minimising the amount of personal data processed by automatic systems corresponds more generally to the concept of ‘privacy by design’. This is the type of approach chosen by Commissioner Mrs Reding, who announced the presentation of a directive proposal aimed at establishing this principle before the end of 2010. The projects also expand on criminal matters. The results of the public consultation launched by the Commission in 2009, under the name ‘The Future for Privacy’, will soon be presented and will provide the first indications to be taken into account in the various legislative projects. In 2011, a report will be presented to the European Parliament with regard to the results of an ‘information mapping’ exercise launched by the Commission, a project based on the legal bases for exchanges of intelligence and information on criminal matters between Member States. A series of assessment reports on the specific instruments will also be presented.283 Lastly, in 2012, the Commission will present a communication on the European information exchange model, followed by a plan of action. The right to personal data protection is unquestionably a legislative project which will continue to expand for years to come. The EU now has the tools required to create a transparent consistent legal framework which will respect individual freedoms as long as a careful balance between the right to privacy and upholding security can be found. Only then will the EU be able to play the driving role in promoting the right to personal data protection to which it aspires.

280 Commission, ‘Final Report of the Comparative Study on Different Approaches to New Privacy Challenges, in particular in Light of Technological Developments’ COM (2010) 17. 281 COM (2010) 609 final, 5. 282 Commission, ‘Final Report of the Comparative Study on Different Approaches to New Privacy Challenges, in particular in Light of Technological Developments’ COM (2010) 19. 283 The Commission envisages in particular examining the implementation of Directive 2006/24 on the retention of data, Framework Decision 2006/907 relating to the exchange of information between law enforcement services and the Prüm decision. It anticipates presenting a communication in 2012 relating to the improvement of the traceability of users of prepaid communication services for law enforcement purposes, a Green Paper on the commercial information presenting an interest for law enforcement services and information exchange models, as well as a police code including the codification of the main instruments of access to information in 2014. See Commission, ‘Delivering an area of freedom, security and justice for Europe’s citizens: Action Plan Implementing the Stockholm Programme’ (Communication) COM (2010) 171 final.