International Cooperation Programme Core notions

International. Cooperation

Programme • Core notions • Legal framework • Organization of mutual assistance in NL and International • Forms of cooperation (EU and non-EU) • Case histories

Cultural differences

Case • Police officers from your country hear a witness in the US by telephone. Is that allowed/acceptable? Would it make a difference if the interview/interrogation was done by email? • Police officers from your country hear a witness in your embassy in the Netherlands. Is an (official) request for legal assistance necessary?

Definition mutual assistance Every requested or spontaneous assistance asked for in every phase of a criminal case or in the execution of a verdict by the judicial and police authorities from one state to another with the intention to gather information and evidence for the offences committed by (a) suspect(s) in proving his possible involvement or non-involvement in these offences.

Core notions mutual assistance • Sovereignty • Jurisdiction • Principle of trust • Mutual recognition (EU) • Principle of availability (EU) • Speciality • Reciprocity • Dual criminality • Ne bis in idem • Confidentiality • Differentiation judicial and police cooperation

Soevereignty • Every State has on its own territory the sole authority, with the exclusion of any other State, to act according to its own legal order / rule of law. • Permission needs to be granted before Police officers or members of the Prosecution from another State may act on its territory.

Jurisdiction • Derivates from the principle of sovereignty: Who decides about what and where the action should take place? • Principle of nationality • Principle of protection • On the basis of a Treaty: Principle of Universality and Transfer of Prosecution/Execution • Principle of immunity

Case The American DEA states that information which has been being given to your authorities regarding the delivery of drug, was gathered according US law and regulations. Can this information be used in your criminal investigation?

Trust Countries that are party to a Treaty on mutual assistance trust each others law system (to a certain extent). The level of trust is mainly decided by the nature of the Treaty as well as the political relationship.

Trust and judicial appreciation • By virtue of the principle of trust a judge can test the legality of information received as a result of mutual assistance only marginally. This applies especially when information is not used as evidence but as start- or steering information. • Due to the ever intensifying relations between the Netherlands and other countries, especially within the EU, the room for a judge to atest the legality of information that comes from abroad is becoming smaller and smaller.

The “ultimate” trust • Starting point is trust between the EU member States in each other’s legal system. • Minimal common notions are necessary, such as minimum rights of suspects, witnesses and victims. • Mutual recognition of verdicts or EAW. • Free flow of information.

Mutual recognition • Within the EU there is an increasing need for recognition and execution of decisions of each other’s Courts. • For example: Freezing Orders, European Arrest Warrant and European Investigation Order.

Availability • In principle, information that is in possession of an investigative authority in one EU country should be made available to another EU country if and when that is or would be of interest for a criminal investigation or the maintainance of public order in that country. • In case of serious criminal offences or serious disruptions of public order.

Specialty or goal binding • Information may only be used for the purpose(s) for which it was supplied. • Intentional misleading another State may lead to non-admissability of the prosecution in that other State. • The principle also applies to other forms of mutual assistance such as surrender and extradition: a suspect may not be prosecuted for offences other than those for which he was surrendered or extradited.

Reciprocity “I do something for you…. ”! • States only assist each other if the other State is prepared to supply a comparable kind of assistance and also delivers! • From a political point of view the principle always applies in relation to non-Treaty countries. It always applies in relation to timely and professional execution of mutual assistance.

Dual criminality • The offences described in a request for mutual assistance must also be punishable offences in the requested country.

Ne bis in idem • Nobody can be prosecuted twice for the same offences for which he has already been convicted irrevocably. Every suspect has the right that his case will come to a definite end at some point in time. • This principles serves the authority of a judge: a definite judicial decision must be respected. The Netherlands “recognize” foreign verdicts by means of Art. 68 subsection 2 Criminal Code.

Confidentiality • • • In the interest of (an) on-going investigation(s) Because of the nature of the information supplied (e. g. level of secrecy) Because of the investigative measures applied (e. g. infiltration) Two forms: • The requesting State requests confidential treatment of its request for mutual assistance • The requested State requests confidential treatment of the information supplied

The right questions • What does the requesting authority want? • What do your own authorities want? • What is the basis for cooperation? • Who does what? • Where should it happen? • How should it be done?

Treaty or no Treaty? • Treaty: a request will be complied with in as far as possible. • No treaty or a treaty under which execution is not compulsory: if the request is reasonable, it will be complied with in as far as possible unless execution would be incompatible with the law or a direction of the Minister of Security and Justice.

Grounds for refusal Absolute grounds for refusal: • • • Discriminatory prosecution Ne bis in idem Ongoing investigation and/or prosecution in NL When suspecting a ground for refusal: Always submit the request to the Ministry of Security and Justice Relative grounds for refusal: • • Offences of a political nature Fiscal offences Authorization from the Minister of Security and Justice Treaty basis necessary

Exchange of Information: new and special rules • On the same grounds as in national cases, information may be supplied to authorities of a member State of the EU in as far as they need these within the framework of their duties. • The exchange of informtion with certain countries (EU) and authorities such as Europol and Eurojust will be simplified and amplified.

Nota bene • The general rule is that information supplied within the framework of a request for assistance in a particular case may only be used for other purposes (in the broadest sense) after permission thereto is gained from the provider of that information.

Juridical framework of international cooperation • European Convention on Mutual Assistance in Criminal Matters (Strassbourg, 20 April 1959) • Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (Brussels, 29 May 2000)

European Convention 1959 (1) Main notions: • “Mother-treaty”: foundation for international cooperation • Mutual and to widest extent possible • Execution unless conflict with national law • Compulsatory • Principle of trust • Sovereignty of own State

European Convention 1959 (2) Possibilities: • Spontaneous exchange of information • Videoconferencing (Art. 9 Second Additional Protocol 2001) • Cross-boarder observation (art. 17 Second Additional Protocol 2001) • Controlled delivery (Art. 18 Second Additional Protocol 2001) • Infiltration (Art. 19 Second Additional Protocol 2001) • Joint Investigations Teams (Art. 20 Second Additional Protocol 2001)

EU-Convention 2000 (1) Main notions: • Supplements and simplifies the use of the European Convention of 1959 • Enhances the cooperation between judicial authorities • Extension of the principle of trust • Further interpretation of the principle of souvereignty in relation to wire tapping • Simplifies dual criminality

EU-Convention 2000 (2) Possibilities: • Spontaneous provision of information (Art. 7), if need be with goal binding. • Videoconferencing (Art. 10). • Joint Investigation Teams (Art. 13). • Infiltration (Art. 14): Police only, no civilians, execution in compliance with national law of requested State. • Wire tapping (Art. 17 and further).

The organization of international legal assistance in the Netherlands • Ministry of Security and Justice: Department of International Legal Assistance (AIRS) • International Coordination Centers ((L)IRC’s) • Liaison Officers and Foreign Liaison Officers • Executive services, such as Prosecutor’s Office, Examining Magistrates, Police, Special Investigative Services, Royal Marechaussee • Bureau Euregional Cooperation (BES) • Euregional Police Information Coordination Center (EPICC)

(Dutch) Instruments • KRIS: examples, formats, list of Treaties, authorities, relevant articles of law • Luris (national registration system) • Expertise and knowledge at AIRS, IRC’s and Ministry of Foreign Affairs • Liaison officers • Judicial Knowledge Site (JKS), Police Knowledge Network (PKN), Foreign Affairs Treaty Databank

Characteristics of an IRC • Cooperation between Prosecutor’s Office and Police • 24/7 accessability • Nationwide network • Identical names • Registration of incoming and outgoing requests • Execution/Coordination of requests • Knowledge and expertise center

The position of the Public Prosecutor • in relation to the Minister of Security and Justice • in relation to the Police (552 i Sv) • in relation to the Examining Magistrate

The duties of the Public Prosecutor (552 j Sv) • Decides about execution of requests • Competent in other Districts • Intervention of other Public Prosecutors • Transfer for reason of efficiency

Duties and competency of the Examining Magistrate EM must/may be approached: • Hearing unwilling witnesses • Statement under oath • Searching places • Seizure of evidence • Wire tapping: Telephone, fax and datacommunication • Hearing witness by way of videoconference • When the Prosecutor deems it necessary (e. g. hearing witness in sensitive cases, EM is already familiar with a case)

Liaison officers (LO’s) • Dutch liaison officers abroad (KLPD and KMAR) • Foreign liaison officers in the Netherlands

Tasks of Dutch LO’s abroad • To support and advise Dutch investigators and prosecutors in international investigations. • To promote Police and judicial cooperation between the Netherlands and the countries of their assignment. NB: • The LO is bound by the Dutch rules concerning mutual assistance. • The LO has diplomatic status, which leads to political limitations! The Ministry of Foreign Affairs plays a decisive role in relation to the liaison officer and his activities. Close consultations with the head of the Embassy are necessary.

Tasks Foreign LO’s in NL • Comparable to those of the Dutch LO’s, but then in relation to their own country. • They are bound by Dutch law and regulations as well as political agreements (which may vary per country).

Organisation of mutual legal assistance on the international level European organisations: • Eurojust • Europol • EJN Worldwide organistations: • Interpol • ICC • ICTY • ICTR

Eurojust (EU Institution) Tasks and competency: • To initiate investigations or prosecutions or to transfer the same to other countries; member States are bound to comply with requests. • Coordination of investigations in different member States. • Exchange of judicial information. • Support member States in the broadest sense (mostly complex cases). • JIT’s: Coordinating and supporting role. • Member States are obliged to report all investigations involving two or more member States.

Europol (EU Institution) Tasks and competency: • Promote efficiency of the investigative powers in the member States in relation to preventing and combatting serious international crimes. • Simplify the exchange of information between member States. • Draw up operational analyses. • Draw up strategic reports and crime analyses. • Furnish knowledge and expertise. • New role in relation to the withdrawl of LO’s. • Future: more operational tasks.

Limitations Eurojust & Europol • National authorities are and remain responsible for the execution of requests for mutual assistance. • The organisations can advise, coordinate en mediate, but do not have executive powers.

European Judicial Network • Cooperation between especially assigned national judicial contact points. • Objectives: streamline, facilitate and improve the quality of mutual assistance. • Internet: http: //www. ejn-crimjust. europa. eu/protected/contact points. html • Contactpoints in the Netherlands: AIRS National Prosecutor’s Office National Coordinating Prosecutor IRC’s IRC Prosecutors Council for the Judiciary

Interpol No governmental status. Tasks and competency: • Most important Police information center and service-hatch (190 member States). • Facilitate member States with identifying crimes and criminals. • 24/7 support for investigative authorities. All formal rules related to mutual assistance apply!!

Case Information about a drugs line between Rotterdam and your country: Every month a Colombian criminal organization ships about 100 kilo of cocaine from Colombia to the port of Rotterdam. From there the cocaine taken over by a Dutch criminal organization and transported into smaller portions to your country. These portions are then delivered to a criminal organization in your country. In both countries this information is sufficient to place several persons under suspicion. How will you approach this case?

Ways of cooperation • Regular legal assistance (one-way traffic) • Parallel investigations • Joint Investigation Teams (JIT’s) • Spontaneous exchange of information • (Systematic) exchange of information (Treaties, EU-Convention, national law) • Surrender and extradition • Transfer of proceedings • Transfer of sentences

Regular legal assistance • Controled delivery • Cross boarder observation / pursuit • Infiltration • Pseudo sale • Wiretapping • Search & seizure • Videoconferencing

Parallell investigations (1) • Intensive mutual legal assistance in a specific investigation. • In principle the general rules regarding international legal assistance apply. • The base of operations is formed by requests for mutual legal assistance from/to all countries involved. These requests are widely formulated so it leaves plenty of space for independent activity in the requested State(s). (For instance: ‘To perform all activities necessary for the execution of the request and to provide all information necessary for the investigation’). • Only new requests when information needs to be used as evidence in Court. Otherwise a general request.

Parallel investigations (2) • At the start there must be mutual agreements between the responsible investigative authorities. • These agreements concern for instance: Who will do what, where will the prosecution take place, surrender or extradition of suspects and the application of investigative powers. • Each country remains responsible for its “own part” of the investigation. • Contact between the investigative teams on a regular base.

JIT’s (1) • Joint investigation, based on Art. 13 EU-Convention or bilateral Treaties/Agreements and local legal rules. • Operational base is a written agreement between a Public Prosecutor and the competent authorities of the other country/countries involved. • Starting point: one responsible authority, one headquarter, as few limitations to the exchange of information as possible. • Application of investigative powers in accordance with the Treaty regulations. • Evidence of or work done by foreign police officers is equal to those of Dutch police officers.

JIT’s (2) • Immediate, but temporary surrender of evidence to JIT if this is situated abroad. • Immediate transmission of wiretaps. • (Local) practice: - Politically JIT’s are a hot item. - In practice more difficult to realize. - Information/materials may only be used in evidence after definitive surrender. Art. 552 oa and 552 p Dutch Code of Procedure apply (Court permission). This takes time. - EU sponsor/funding money through Eurojust.

Extradition and Surrender • Extradition: Outside the EU • Surrender: Within the EU

Extradition • Request for extradition • From one State to another • Minister of Security and Justitie is competent authority • Treaty • Extradition Law • Dual criminality

Surrender • European Arrest Warrant • From one judicial authority to another • Prosecutor is competent authority • Framework Decision EAW • Surrender Law • Dual criminality and List of Offences

Transfer of proceedings (1) • The transfer of a criminal case file from one competent judicial authority in one State to the other in another State. • A request to take over the (further) prosecution of a case. • The first phase of the investigation has already taken place in the requesting State. • Only transfer of the file, not the suspect. • No transfer of a file in combination with expulsion (clandestine extradition). • No Treaty base required (incoming as well as outgoing requests). • Requested State must have jurisdiction.

Transfer of proceedings (2) • The law does not require dual criminality, but some Treaties do (EVOS). • In the interest of a just application of the law. • Time and desirability of transfer: - Yes, if foreign national + domicile in other State + rehabilitation. - No, if extreme infringement of public order + co-defendants + victim(s) + preventative measures. • Translations and seized items. • Consent of victim.

Transfer of proceedings (3) Grounds for refusal: • the suspect is a foreigner whose permanent domicile is outside of the Netherlands. • the offence is not punishable under Dutch law. • the offence is of political nature or is connected thereto. • the offence is of a military nature. • statute of limitations apply. • the offence is of a discriminatory nature (concerns somebody’s religious, philosophical or political views, his nationality, his sexuality, race or the population that he belongs to. • ne bis in idem.

Why is it still not working (so well)? • Still lack of knowledge and (positive) experience(s). • Prejudices/Preconceptions. • We are simply the best! • Own interest first! • Lack of capacity/staff. • I just don’t feel liking doing this! Don’t want to!

To conclude Some tips/suggestions: • Think how you can best facilitate foreign colleagues. • Be flexible. • Working together on a case and consultations a priori means starting an investigation with a head start! • Know your partners abroad!

Contact Giel Franssen: Email: g. t. m. franssen@om. nl Mobile: 0031 -6 -48 13 04 76

Thank you very much for your patience and attention