Judicial Protection in Transnational Criminal Proceedings [1st ed.] 9783030557959, 9783030557966

Table of contents :
Front Matter ....Pages i-viii
Introduction (Martin Böse, Maria Bröcker, Anne Schneider)....Pages 1-17
Country Report “Austria” (Nina Marlene Schallmoser)....Pages 19-47
Country Report “France” (Juliette Lelieur)....Pages 49-92
Country Report “Germany” (Martin Böse, Maria Bröcker)....Pages 93-148
Country Report “Italy” (Tommaso Rafaraci)....Pages 149-186
Country Report “the Netherlands” (Michiel Luchtman)....Pages 187-228
Country Report “Norway” (Synnøve Ugelvik, Hedda Larsen Borgan, Andreas Dalaker)....Pages 229-270
Country Report “Portugal” (Miguel João Costa, Pedro Caeiro)....Pages 271-319
Country Report “Switzerland” (Frank Meyer)....Pages 321-357
Comparative Analysis (Martin Böse, Maria Bröcker, Anne Schneider)....Pages 359-394
Judicial Protection in International and EU Law (Martin Böse)....Pages 395-436
Recommendations (Martin Böse, Maria Bröcker, Anne Schneider)....Pages 437-441
Correction to: Country Report “Norway” (Synnøve Ugelvik, Hedda Larsen Borgan, Andreas Dalaker)....Pages C1-C1

Citation preview

Legal Studies in International, European and Comparative Criminal Law 5

Martin Böse Maria Bröcker Anne Schneider  Editors

Judicial Protection in Transnational Criminal Proceedings

Legal Studies in International, European and Comparative Criminal Law Volume 5 Editor-in-Chief Stefano Ruggeri Department of Law, University of Messina, Messina, Italy Editorial Board Members Chiara Amalfitano University of Milan, Milan, Italy Lorena Bachmaier Winter Faculty of Law, Complutense University of Madrid, Madrid, Spain Martin Böse Faculty of Law, University of Bonn, Bonn, Germany Lorenzo Mateo Bujosa Vadell Faculty of Law, University of Salamanca, Salamanca, Spain Eduardo Demetrio Crespo University of Castile-La Mancha, Toledo, Spain Giuseppe Di Chiara Law School, University of Palermo, Palermo, Italy Alberto Di Martino Sant’Anna School of Advanced Studies, Pisa, Italy Sabine Gleß University of Basel, Basel, Switzerland Krisztina Karsai Department of Criminal Law, University of Szeged, Szeged, Hungary Vincenzo Militello Dipto Sci Giuridiche, della Società, University of Palermo, Palermo, Italy Oreste Pollicino Comparative Public Law, Bocconi University, Milan, Italy Serena Quattrocolo Department of Law, University of Piemonte Orientale, Alessandria, Italy Tommaso Rafaraci Department of Law, University of Catania, Catania, Italy

Arndt Sinn Faculty of Law, University of Osnabrück, Osnabrück, Germany Francesco Viganò Bocconi University, Milan, Italy Richard Vogler Sussex Law School, University of Sussex, Brighton, UK

The main purpose of this book series is to provide sound analyses of major developments in national, EU and international law and case law, as well as insights into court practice and legislative proposals in the areas concerned. The analyses address a broad readership, such as lawyers and practitioners, while also providing guidance for courts. In terms of scope, the series encompasses four main areas, the first of which concerns international criminal law and especially international case law in relevant criminal law subjects. The second addresses international human rights law with a particular focus on the impact of international jurisprudences on national criminal law and criminal justice systems, as well as their interrelations. In turn the third area focuses on European criminal law and case law. Here, particular weight will be attached to studies on European criminal law conducted from a comparative perspective. The fourth and final area presents surveys of comparative criminal law inside and outside Europe. By combining these various aspects, the series especially highlights research aimed at proposing new legal solutions, while focusing on the new challenges of a European area based on high standards of human rights protection. As a rule, book proposals are subject to peer review, which is carried out by two members of the editorial board in anonymous form.

More information about this series at http://www.springer.com/series/15393

Martin Böse • Maria Bröcker • Anne Schneider Editors

Judicial Protection in Transnational Criminal Proceedings

Editors Martin Böse Department of Law University of Bonn Bonn, Germany

Maria Bröcker Department of Law University of Bonn Bonn, Germany

Anne Schneider Department of Law University of Mannheim Mannheim, Germany

ISSN 2524-8049 ISSN 2524-8057 (electronic) Legal Studies in International, European and Comparative Criminal Law ISBN 978-3-030-55795-9 ISBN 978-3-030-55796-6 (eBook) https://doi.org/10.1007/978-3-030-55796-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021, corrected publication 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Maria Isabel Ruggeri This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

This book presents the results of a research project on judicial protection in transnational criminal proceedings that has been funded by the Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) – project number: BO 2499/4-1. Based upon a comparative analysis of the national criminal justice systems of eight European countries, the study seeks to identify shortcomings in judicial protection and outlines a comprehensive framework for judicial protection in transnational criminal proceedings that would ensure the right to judicial review without hampering the effective functioning of international cooperation in criminal matters. The book examines a broad range of potential approaches in the context of selected national criminal justice systems and offers a comparative analysis of EU Member States and non-Member States alike. The book particularly focuses on the differences between cooperation within the EU on the one hand and cooperation with third states on the other and on the consequences of this distinction for the scope of judicial review. We owe a great debt of acknowledgement to a number of people who have participated in this project and, thereby, have contributed to its final results. We are particularly grateful to Nick Ertural and Yannick Scholz (Bonn) for their excellent support throughout the entire drafting process and to Juliane Müller and Laura Prosen (Mannheim), who were in charge of the English proofreading and made various helpful suggestions. Furthermore, we would like to thank the national rapporteurs for their contributions to this volume, which laid the foundation of the study’s final results. Finally, we owe thanks to the German Research Foundation for its financial support. Bonn, Germany Bonn, Germany Mannheim, Germany

Martin Böse Maria Bröcker Anne Schneider

v

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin Böse, Maria Bröcker, and Anne Schneider

1

2

Country Report “Austria” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nina Marlene Schallmoser

19

3

Country Report “France” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Juliette Lelieur

49

4

Country Report “Germany” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin Böse and Maria Bröcker

93

5

Country Report “Italy” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tommaso Rafaraci

149

6

Country Report “the Netherlands” . . . . . . . . . . . . . . . . . . . . . . . . . Michiel Luchtman

187

7

Country Report “Norway” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker

229

8

Country Report “Portugal” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miguel João Costa and Pedro Caeiro

271

9

Country Report “Switzerland” . . . . . . . . . . . . . . . . . . . . . . . . . . . . Frank Meyer

321

10

Comparative Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin Böse, Maria Bröcker, and Anne Schneider

359

11

Judicial Protection in International and EU Law . . . . . . . . . . . . . . Martin Böse

395

vii

viii

Contents

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Martin Böse, Maria Bröcker, and Anne Schneider

437

Correction to: Country Report “Norway” . . . . . . . . . . . . . . . . . . . . . . . Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker

C1

12

Chapter 1

Introduction Martin Böse, Maria Bröcker, and Anne Schneider

1.1

Judicial Protection in Transnational Criminal Proceedings

In contrast to domestic criminal proceedings, cross-border proceedings within the framework of international cooperation in criminal matters do not only form part of the criminal justice systems of states but do also affect their foreign relations.1 Accordingly, transnational criminal proceedings are concerned with the relationship between the requesting and the requested states (international dimension), as well as with the relationship between the requesting or the requested state on the one hand and the individual (defendant, victim, third party) on the other (internal dimension).2 In the latter relationship, the individual has a right to an effective legal remedy against any measure interfering with his or her rights.3 However, the international dimension significantly determines the scope and limits of judicial protection in terms of both law (state sovereignty, foreign relations) and fact (physical distance, language problems, etc.).

1 See § 74 of the German Act on International Cooperation in Criminal Matters (IRG); Federal Constitutional Court of Germany (BVerfG), decision of 25 March 1981 – 2 BvR 1258/79, official court report (BVerfGE) 57, p. 9 (23 ff.); Hackner (2020a), § 74 para. 1. 2 Vogel and Burchard (2017), Vor § 1 para. 15. 3 See in Germany, Art. 19 para. 4 GG.

M. Böse · M. Bröcker (*) University of Bonn, Bonn, Germany A. Schneider University of Mannheim, Mannheim, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_1

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A first restriction relates to the subject matter of judicial review. Generally speaking, the right to an effective legal remedy4 requires an act of state. In international cooperation in criminal matters, the competent authority of the requested state grants legal assistance (Leistung von Rechtshilfe) and executes the requested measure (arrest, detention, seizure, etc.—Vornahme der Rechtshilfe).5 Even though the corresponding decisions may be challenged before the courts of the requested state, the jurisdiction of the requested state’s courts does not extend to the review of foreign sovereign acts; as follows from the principle of state sovereignty (par in parem non habet iudicium), judicial protection against state acts is a matter for the courts of the state that issued the contested measure (so-called Trennungsmodell).6 International law, however, does not preclude an incidental review of a foreign sovereign act. Such a review may be required for providing effective legal protection against an act by which the requested state grants mutual legal assistance and thereby contributes to human rights violations in the framework of foreign criminal proceedings.7 The need for effective judicial protection against human rights violations notwithstanding, incidental review of acts of a foreign state is still subject to restraints because the exercise of jurisdiction might not only interfere with the foreign state’s sovereignty but also affect the functioning of international cooperation in criminal matters that is based upon a division of tasks and responsibilities between the requesting and the requested states.8 In the European Union, the principle of mutual recognition has further developed the division of tasks and responsibilities by establishing a general obligation to recognise and to execute the decision of the requesting (issuing) Member State unless one of the exhaustively listed grounds for refusal applies; thus, the requested (executing) Member State is not competent to examine any other objections raised by the person concerned.9 The Directive on the European Investigation Order explicitly relies on the distribution of competence between the issuing and the executing Member States according to which the substantive grounds for the order (e.g. reasonable suspicion, threshold) can only be challenged before the courts of the issuing Member State.10 As this rule results in a limitation to judicial protection in the executing Member State, it has been subject to severe criticism.11 As an 4

Art. 19 para. 4 GG. See for the distinction between the so-called “Leistungsebene” and “Vornahmeebene”: Schomburg et al. (2013) § 13 paras. 40 f. 6 Kahl (2013), § 253, paras. 44 f. with further references. 7 Schmidt-Aßmann (2012), p. 2119 (2140 f.). 8 Harings (1998), pp. 223 f. 9 The examination of suspicion (cf. § 10 para. 2 IRG) in the execution of a European Arrest Warrant is therefore controversial: see Böse (2012), § 83a paras. 12 ff. on the one hand Hackner (2020b), § 78 para. 14 on the other hand; see regarding Austrian law: Schallmoser (2012), pp. 211 ff. 10 Art. 14 para. 2 Directive 2014/41/EU of 3 April 2014 on the European arrest warrant in criminal matters, O.J. L 130/1; see also Art. 11 para. 2 Framework Decision 2033/577/JHA of 22 July 2003 on the execution of orders freezing property and evidence, O.J. L 196/45. 11 Esser (2011), p. 1497 (1505 f.); Gaede (2013), § 3 para. 51; Meyer (2014), § 38 paras. 47 ff. 5

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alternative, a concentration of legal protection in the executing (requested) Member State12 or at least a minimum of supplementary procedural rights and safeguards (e.g. the option to lodge the appeal in the executing Member State—BrückenkopfModell13) has been proposed. In the Schengen Information System (SIS II), the individual may challenge the processing of data relating to him or her before a court of any Member State, and the decision rendered by this court shall be enforced by the authorities of all Member States; thereby, EU law provides for a uniform mechanism of judicial protection (Einheitsmodell).14 The joint responsibility of the requested and the requesting states for ensuring a fair trial (Art. 6 of the European Convention on Human Rights (ECHR)) is also reflected in the case law of the European Court of Human Rights15 and in EU legislation extending the scope of procedural guarantees in criminal proceedings to surrender proceedings based on European arrest warrants.16 In light of these recent developments, international cooperation in criminal matters has been characterised as international criminal proceedings based on the division of labour (international-arbeitsteiliges Strafverfahren)17 and networkbased criminal prosecution (Verbundstrafverfolgung).18 Insofar as judicial protection in international cooperation in criminal matters extends to criminal proceedings conducted abroad, further questions arise concerning the standard of review, namely the legal standard (i.e. the applicable law) and the scope of judicial review and the assessment of the risk of human rights violations in particular. In general, criminal courts have to apply domestic law; however, it is commonly accepted that acts of a foreign state are not to be examined for their compliance with domestic criminal law and criminal procedure law because

12 Roger (2010), p. 29 (41); Schünemann and Roger (2010), p. 92 (97); see also on judicial protection in administrative matters: von Arnauld (2011), p. 497 (515). 13 BT-Drucks. 18/9757, p. 31; also Böse (2014), p. 152 (160). 14 Art. 68 Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, O.J. L 312/56; see in this regard Kahl (2013), § 253 paras. 51 and 53; Meyer and Hüttemann (2016), p. 394 (423 ff.); Administrative Court Wiesbaden, decision of 3. July 2013 – 6 L 329/13 WI, juris; Böse (2013), p. 364 (365 f.). 15 On the establishment of an infringement of conviction by Belgium (requested state) and France (requesting state): European Court of Human Rights (ECtHR), judgment of 27 October 2011, Application no 25303/08 (Stojkovic v. France and Belgium); also Gleß (2013), p. 90 (93 f.). 16 See e.g. Art. 1 para. 1 Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings, O.J. L 280/1; Art. 1 sentence 2 Directive 2012/13/EU of 22 May 2012 on the right to instruction and information in criminal proceedings, O.J. L 142/1; Art. 1, 10 Directive 2013/48/EU of 22 October 2013 on the right of access to legal assistance in criminal proceedings and in proceedings for the execution of the European arrest warrant and on the right to notify a third party of any measure involving deprivation of liberty and the right to communicate with third parties and with consular authorities when deprived of liberty, O.J. L 294/1. 17 Schomburg et al. (2020), introduction paras. 1, 145 ff.; see also the model of the transnational procedural unit: Schünemann (2006), p. 93 (100). 18 Meyer (2016b), pp. 193 ff.

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the effective functioning of international cooperation requires the willingness of states to accept that the requesting state conducts criminal proceedings according to its domestic law.19 Accordingly, the inadmissibility of mutual legal assistance may only be based upon the law of the requested state where essential constitutional principles would be violated (ordre public reservation).20 In Germany, the constitutional ordre public is supplemented by international human rights standards binding upon the Federal Republic of Germany.21 In this regard, the European Convention on Human Rights and the case law of the European Court of Human Rights are particularly relevant.22 As far as cooperation within the European Union is concerned, the European Court of Justice has ruled that a Member State’s constitutional ordre public did not provide a valid reason to refuse the execution of a European arrest warrant since this would be contrary to the primacy of EU law and the principle of mutual recognition and mutual trust in the criminal law systems of the other Member States.23 However, mutual trust is not without limits: EU legislation in part expressly provides for a European ordre public reservation,24 and according to the case law of the Court of Justice, the executing Member State is not obliged to execute a European arrest warrant if surrender to the issuing Member State would expose a person to the real risk of inhuman detention conditions (Art. 3 ECHR, Art. 4 of the Charter of Fundamental Rights of the European Union (EU-CFR)).25 The German Constitutional Court, however, has maintained its competence to assess whether the execution of a European arrest warrant (or another mutual recognition instrument) would violate core elements of the constitution (Identitätskontrolle).26 In the same vein, scholars have advocated for maintaining national ordre public reservations in the framework of cooperation between EU Member States.27 Finally, the application of foreign law might also be an option to be considered. As far as can be seen, foreign law has not yet been 19 Häde (1997), p. 1 (22 f.); Hofmann (1994), pp. 273 ff.; also BVerfG, decision of 30 June 1964 – 1 BvR 93/64, BVerfGE 18, p. 112 (120 f.). 20 See § 73 sentence 1 IRG. 21 BVerfG, interim order of 26 January 1982 – 2 BvR 856/81, BVerfGE 59, p. 280 (283); BVerfG, decision of 31 March 1987 – 2 BvM 2/86, BVerfGE 75, p. 1 (19 f.). 22 See § 49 para. 1 no. 2 IRG; European Court of Human Rights (ECtHR), judgment of 7 July 1989, Application no. 14038/88 (Soering v. United Kingdom); see regarding the case law of the ECtHR on Article 3 ECHR as an obstacle to extradition and deportation: Lorz and Sauer (2010), pp. 389 ff. 23 CJEU, judgment of 26 February 2013, Case C-399/11 (Melloni), paras. 55 ff., 59. 24 Art. 11 para. 1 lit. f Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, O.J. L 130/1; Art. 20 para. 3 Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, O.J. L 76/16. 25 CJEU, judgment of 5 April 2016, Case C-404/15, C-659/15 PPU (Pál Aranyosi and Robert Căldăraru), paras. 82 ff. 26 BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, Neue Juristische Wochenschrift 2016, p. 1149 (1150 ff.). 27 See the Manifesto of the European Criminal Policy Initiative on European criminal procedural law (2013), p. 412 (419), also Herrnfeld (2019), Art. 67 AEUV para. 25.

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applied to mutual legal assistance proceedings. In Germany, the Federal Court of Justice recently rejected this approach. It refused to examine whether evidence had been obtained in conformity with the lex loci (procedural law of the foreign state).28 The primary responsibility of the requesting state to provide judicial protection against investigative measures (e.g. a search warrant) might suggest that the courts of the requested state may rely on the assessment of the requesting state’s judiciary and confine itself to a summary (incidental) review. Such judicial restraint is reflected in the burden of presenting and substantiating human rights violations where the applicant invokes the constitutional ordre public,29 respectively, the core elements of the German constitution.30 Accordingly, the person concerned must present concrete facts and evidence relating to his or her individual case unless there is a constant practice of gross, blatant or mass human rights violations in the requesting state.31 The Court of Justice even raised the threshold by combining these two elements and held that the suspension of the obligation to execute a European arrest warrant required general or systemic deficiencies in the issuing Member States (general assessment) and a real risk of inhuman or degrading treatment of the person to be surrendered (individual assessment).32 Thereby, systematic human rights violations are no longer a mere indication of an individual risk for the person concerned but have transformed into a self-standing requirement of the European ordre public reservation.33 Apart from detention conditions in the requesting state, the risk of life imprisonment may be invoked as a ground for refusal, which can be derived from the prohibition of inhuman and degrading punishment (Art. 3 ECHR, Art. 4 EU-CFR).34 Under certain conditions, such obstacles to extradition can be removed if the requesting state assures not to impose (or enforce) the prohibited punishment.35 However, it is still not entirely clear, in particular with regard to cooperation between EU Member States, whether and to what extent assurances Federal Court of Justice of Germany (BGH), decision of 21 November 2012 – 1 StR 310/12, Strafverteidiger 2014, p. 193 (196); for the contrary view see Schuster (2006), pp. 105 ff. with further references. 29 BVerfG, decision of 31 May 1994 – 2 BvR 1193/93, Neue Juristische Wochenschrift 1994, p. 2883; decision of 29 May 1996 – 2 BvR 66/96, EuGRZ 1996, p. 324 (326). 30 BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, Neue Juristische Wochenschrift 2016, p. 1149 (1155). 31 BVerfG, decision of 24 June 2003 – 2 BvR 685/03, Neue Zeitschrift für Verwaltungsrecht 2003, p. 1499 (1500). 32 CJEU, judgment of 5 April 2016, Case C-404/15, C-659/15 PPU (Pál Aranyosi and Robert Căldăraru) paras. 82 ff.; Meyer (2016a), p. 621 (638); Satzger (2016), p. 514 (520). 33 Reinbacher and Wendel (2016), p. 333 (341 f.); on the case-law of the ECtHR: Lorz and Sauer (2010), p. 389 (399 ff.). 34 ECtHR, judgment of 4 September 2014, Application no. 140/10 (Trabelsi v. Belgien); see on this and the differences to the case law of the BVerfG in detail: Kromrey and Morgenstern (2014), pp. 704 ff. 35 see on the death penalty § 8 IRG; See in this respect the case-law of the ECtHR: Lorz and Sauer (2010), p. 389 (402 ff.). 28

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(guarantees) provide an appropriate instrument for eliminating human rights objections to extradition36 and—if they do—what requirements have to be met.37 The aforementioned restrictions on the subject matter, standard and scope of judicial review have a negative impact on the effectiveness of judicial protection: due to geographical distance, language problems and unfamiliarity with a foreign legal system, it is much more difficult for the person concerned to lodge a legal remedy with a court of the requesting state than to seek judicial protection in his or her home country. In addition, a legal remedy against a foreign decision may be hampered by the refusal of the foreign authority to grant access to the file.38 On the other hand, judicial review by the courts of the requested state will not provide effective protection if the court renders its judgment after the request has already been executed and the evidence has been transmitted to the requesting state. This gap is particularly relevant for secret surveillance measures, of which the person concerned will not be notified before they have been terminated.39 In order to close this lacuna, the transfer of the collected evidence could be postponed until the court has rendered its decision.40 Alternatively, the requesting state could be obliged to recognise the decision of the requested state’s court and to retransfer (or delete) the evidence. In the Directive on the European Investigation Order, the legislator opted for the latter solution,41 which, however, still requires further elaboration. Furthermore, the right to effective judicial protection might be undermined where foreign authorities directly collect information without domestic authorities being involved. This applies, for example, to the automated retrieval of vehicle registration data42 or access to computer data stored abroad that are either publicly available or accessed with the voluntary consent of the data subject (Art. 32 Convention on Cybercrime of the Council of Europe (CCC)).43 The potential gaps in judicial protection against cross-border access to personal data have raised constitutional concerns, and even though the German Constitutional Court rejected a constitutional

36

See in this regard, Art. 5 Framework Decision on the European arrest warrant; contrary: on prison conditions in conformity with human rights: Meyer (2016a), p. 621 (622). 37 See in this regard the new referral decision of the Higher Regional Court Bremen, decision of 12 September 2016, Neue Zeitschrift für Strafrecht 2017, p. 48. 38 Ahlbrecht and Schlei (2013), p. 265 (272). 39 See § 101 para. 7 StPO. 40 Johnson (2012), § 61 IRG para. 18; also see § 91i para.2 IRG-E, BT-Druck. 18/9757, pp. 13 and 79. 41 See the “obligation to take into account” according to Art. 14 para. 7 of the Directive 2014/41/EU of 3 April 2014 on the European arrest warrant in criminal matters, O.J. L 130/1; Böse (2014), p. 152 (161). 42 Directive (EU) 2015/413 of 11 March 2015 facilitating cross-border exchange of information on road-safety-related traffic offences, O.J. L 68/9; see §§ 37a, 37b of the German Road Traffic Act (StVG). 43 See Art. 32 of the Council of Europe Convention on Computer Crime of 23 November 2001 (BGBl. 2008 II p. 1242).

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complaint against the Cybercrime Convention,44 it is still an open question whether and how German courts shall respectively provide effective judicial protection against investigative measures of foreign authorities. In summary, the subject matter, scope and organisation of judicial protection in international cooperation in criminal matters raise several questions and call for a revision of the existing rules and coherent procedural framework of judicial protection in transnational proceedings. In particular, the revised framework should meet the new challenges arising from the increasing integration of law enforcement within the European Union.

1.2

Research Objectives and Methodology

The research project aims at developing a comprehensive framework for the judicial protection of individuals in transnational criminal proceedings which ensures the right to judicial protection without hampering the effective functioning of international cooperation in criminal matters. To that end, extending the scope of judicial protection in the requested state might be an option. On the other hand, transnational judicial protection in the European Union could be enhanced by developing closer coordination and interconnection of court proceedings in the requesting and the requested states, e.g. by the option to lodge a remedy against a decision of the requesting state (e.g. an arrest warrant) with a court of the requested state. National legislators are not entirely free to design the rules on judicial protection in international cooperation in criminal matters. To a large extent, states are bound by international and European law. While the key question on the balance between effective judicial protection of the individual and interest in a functioning system of international cooperation in criminal matters arises regardless of the relevant sources of law, the design of procedural and organisational rules on judicial protection is influenced by factors to which legislators and courts in various countries may attach different importance. Moreover, the framework of cooperation within the Union significantly differs from the rules on cooperation between or with third countries. Accordingly, the variety of national criminal justice systems and the differences in the applicable international and European framework may offer a wide range of potential solutions to address the challenges of effective judicial protection in transnational criminal proceedings. Hence, this study shall explore the mechanisms of judicial protection in selected criminal justice systems and analyse their strengths and shortcomings to develop a model of judicial legal protection in international cooperation. In order to obtain an accurate picture of different legal systems, legal scholars from eight European countries filed national country reports to the study. The

BVerfG, decision of 21 June 2016 – 2 BvR 637/09, BVerfGE 142, p. 234 with judge Huber dissenting.

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country reports address the issues mentioned above (scope of judicial control and standard of review, organisation and effectiveness of judicial protection in transnational criminal proceedings) in the context of the respective criminal justice systems as well as the distinction between cooperation with EU Member States on the one hand and that with third countries on the other. The country reports, therefore, serve as a basis for a critical appraisal of the existing framework on judicial legal protection and the limitations of judicial protection in particular. As the mechanism of judicial protection is strongly influenced by international law (ECHR) and EU law, the country reports are supplemented by a transversal report on the international and European framework. The study aims at identifying shortcomings in judicial protection but also highlights best practices and elaborate mechanisms of judicial protection that, on the one hand, afford effective protection to the individual while, on the other hand, ensuring the functioning of international cooperation. Although the scope of the study is limited to horizontal cooperation between states, its results may also provide orientation for the vertical distribution of jurisdiction between Union and national courts as far as cooperation between EU institutions (European Public Prosecutor’s Office) and national prosecution authorities are concerned.

1.3

Selection of the Countries Included in the Comparative Analysis

The comparative analysis is based upon country reports on the following countries: Austria, France, Germany, Italy, the Netherlands, Norway, Portugal and Switzerland. Due to the considerable differences in extradition and mutual legal assistance procedures in common law,45 the comparison was limited to continental European countries. On the other hand, both EU Member States and non-Member States were included in order to analyse the different approaches to judicial protection within and outside the Union (and the different rules on cooperation with other Member States on the one hand and third countries on the other). In this respect, Norway is of particular interest because the Scandinavian states have adopted new cooperation instruments that may come close to mutual recognition instruments (e.g. Nordic arrest warrant).46 Furthermore, the selected countries represent different models of judicial protection; in this regard, the Swiss model stands for a mechanism of judicial review in administrative court proceedings47 but also has the unique feature that an appeal can be based upon a violation of foreign law (Art. 25 para. 4, Art. 80i lit. b of

45

Schomburg et al. (2012), introduction paras. 234 ff. Suominen (2014), pp. 41 ff. 47 On the model character of the rules in Austria, Portugal, and Switzerland on legal protection in extradition proceedings: Lagodny (2005), p. 515 (518 f.). 46

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the Swiss Federal Act on International Mutual Assistance in Criminal Matters, IRSG). A different understanding of international cooperation proceedings that may have repercussions on judicial protection may be reflected in the legal and procedural framework, i.e. in a self-standing statutory law (e.g. the German IRG and the Austrian Extradition and Mutual Legal Assistance Act—ARHG) or as part of the code of criminal procedure, which regulates both domestic (national) and transnational criminal proceedings (e.g. in France, Article 694 et seq. of the Code de Procédure Pénale and, in Italy, Article 696 et seq. of the Codice die Procedura Penale). Furthermore, the comparative analysis examines differences in the implementation of mutual recognition instruments in EU Member States: in some Member States, cooperation within the Union forms part of the general framework of international cooperation in criminal matters (Germany); others strictly distinguish the general rules from cooperation within the European Union (e.g. the Austrian law on judicial cooperation in criminal matters with the Member States of the European Union—EU JZG) or have adopted separate laws implementing mutual recognition instruments such as the European arrest warrant (e.g. the overleveringswet in the Netherlands or Law no. 65/2003 in Portugal). Finally, the framework of international cooperation and judicial protection may be affected by the requirement that cooperation must be based upon an international treaty (see, for extradition, Article 2 of the Dutch Uitleveringswet).

1.4

Questionnaire48

I. Overview on the National System The purpose of this section is to get an idea about how judicial protection is structured in your country and which bodies are competent to provide judicial protection in these cases. 1. Is there a constitutional guarantee or a fundamental principle in national law to provide judicial protection (corresponding to Art. 13 ECHR, but granting access to a court; see also Article 6 ECHR)? To what extent does it apply to transnational criminal proceedings? 2. Which bodies are involved in granting a request for cooperation in criminal matters, and which courts are competent to provide judicial protection in this respect? Are there any other bodies providing for judicial protection (public prosecutors’ office, Ministry of Justice)? Please give a brief overview on your national system, taking into account the following questions:

48 The following questionnaire has been sent to the country rapporteurs and was the basis of the country reports.

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• Does your system provide for judicial protection before a decision is taken by the competent body? Or is judicial review only provided after the decision to grant legal assistance has been taken by the competent body? • Does the competent authority have discretion whether or not to grant a request, and, if yes, is the exercise of this discretion subject to judicial control (and to what extent)? • Is there a difference between cooperation with EU Member States and that with non-Member States? • Is there a difference between different modalities of cooperation (extradition, enforcement of prison sentences, gathering of evidence by means of search and seizure, interrogation and telecommunication surveillance)? • Is there a difference depending on whether your state is requesting legal assistance or executing a foreign request? 3. Who can challenge the final decision granting or not granting a request for cooperation (defendant/person concerned, prosecutor’s office, NGOs. . .)? II. Subject Matter of Judicial Control This section aims at establishing what exactly is subject to judicial control. This part has two subsections, which deal with the general framework of international cooperation in criminal matters (cooperation with non-Member States of the EU) and cooperation within the Union. For the purpose of this questionnaire, “request” is meant to include the EU legal instruments that can be regarded as a demand for international cooperation (e.g. European arrest warrant). Please focus on the following cooperation instruments: extradition, enforcement of prison sentences and gathering of evidence. If there is a similar legal framework for these measures, please provide answers to each question in which you deal with all the instruments together; otherwise, please discuss the instruments separately. A. The General Framework of International Cooperation in Criminal Matters (Cooperation with Non-Member States of the EU) 1. The decision on a foreign request requires an examination of two issues, namely on whether to grant legal assistance to the requesting state (international dimension, e.g. ordre public reservations) and on measures necessary to execute the request (internal dimension—e.g. arrest and detention, search and seizure). (a) Are both of these issues addressed within one and the same proceedings or dealt with separately (and by different bodies)? (b) What are the consequences for judicial control (joint or separate judicial control)? Is the decision on either of these issues (international and internal dimensions) subject to judicial control? Is judicial control with regard to the international dimension limited (e.g. because the decision is considered not to affect individual rights, but only the relationship between requesting and requested states)?

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2. For reasons of international law, the authorities of the requested state cannot annul but only refuse a foreign request. (a) Nonetheless, can the judicial authority incidentally examine the lawfulness of the foreign request under foreign law and the decisions on which it is based (e.g. an arrest or a search warrant)? Is there a difference between arguments based on formal requirements (e.g. use of a specific form) and arguments based on substantive law (e.g. insufficient degree of suspicion)? (b) If the foreign request cannot be examined incidentally by the judicial authority, please explain the reasons (respect of foreign legal systems, international policy, lack of information about foreign law. . .). (c) If the foreign request cannot be examined incidentally before national courts of your country as the requested state, is it possible to lodge a legal remedy against the foreign request with a court of your country that triggers judicial review in the requesting state?49 3. Taking the perspective of your country as the requesting state: (a) Is the decision of your state to request legal assistance subject to judicial review and, if so, to what extent? (b) Can the corresponding arguments be raised in the trial phase (incidental review)? For example, can the use of evidence gained by means of international cooperation in criminal trials be challenged (Beweisverwertungsverbot)? • Example 1 (illegal request): upon request of your country, the requested state has transferred evidence. According to the law of your country, the request was illegal. May the evidence be used in trial? • Example 2 (illegal decision in the requested state): upon request of your country, the requested state has transferred evidence. Is the evidence inadmissible because the decision to grant the request was illegal? (c) Is the decision not to initiate a request (e.g. transfer of prisoners, gathering of evidence) subject to judicial review? If not, does your criminal justice system provide for judicial protection in the trial phase (e.g. by appeal against the judgment for a violation of the fair trial principle?) 4. In the second generation of the Schengen Information System (SIS II), legal remedies against an alert can be brought in any EU Member State.50 This leads to a concentration of legal remedies. How does this work in practice? Are there similar rules in your legal system for other areas (e.g. other databases, joint investigation teams)? 5. In some cases, foreign authorities have the right to undertake investigative measures on national territory (e.g. observation, hot pursuit, access to Cf. recital 22 of Directive 2014/41/EU regarding the European Investigation Order: “. . . In cases where objections against the EIO are submitted by an interested party in the executing state in respect of the substantive reasons for issuing the EIO, it is advisable that information about such challenge be transmitted to the issuing authority and that the interested party be informed accordingly.” 50 See Art. 59 Council Decision 2007/533/JHA of 12 June 2007. 49

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databases). Does your state provide judicial review against the foreign investigative measure that has taken place on your territory? If not, does it refer the complainant to the other state’s authorities? B. The Framework of Cooperation Within the EU (if applicable) Please answer questions A.1–5 insofar as there are differences from the general framework (subsection A). III. Scope of Judicial Protection and Applicable Legal Standards This section seeks to explore to what extent judicial protection is provided in cases of international cooperation. It is especially concerned with the applicable legal standards against which a request for cooperation in criminal matters must be measured. Again, this part is divided into two subsections. A. The General Framework of International Cooperation in Criminal Matters (Cooperation with Non-Member States of the EU) 1. When deciding upon a foreign request, please specify the legal standards that will be applied to the foreign decision/proceedings/request. Please indicate whether judicial review is limited in any of these cases (e.g. to clear obvious violations of the applicable standards). Does the competent authority apply: (a) The law of the requesting state? Please focus on limitations to international cooperation in criminal matters; the application of foreign law upon request ( forum regit actum) shall not be addressed. (b) The law of the requested state (criminal law, procedural law, national ordre public, constitutional law)? Are there differences to purely domestic proceedings (e.g. coercive measures taken in the framework of a criminal investigation)? (c) International law (ECHR, international ordre public, fundamental rights)? (d) EU law? Please note that this section only deals with the relationship to non-Member States51 and that cooperation within the EU shall be discussed in subsection B: • Protection against extradition (Art. 19 Charter of Fundamental Rights)52 • Non-discrimination of permanent residents (Art. 18 TFEU)53 • Directives on the rights of the defendant54 51 See Court of Justice of the European Union (CJEU) (Grand Chamber), judgment of 6 September 2016, Case C-182/15 (Petruhhin), paras. 51 ff. 52 See CJEU (Grand Chamber), judgment of 6 September 2016, Case C-182/15 (Petruhhin), para. 60. 53 See CJEU (Grand Chamber), judgment of 6 September 2016, Case C-182/15 (Petruhhin), paras. 25 ff. 54 E.g. Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings OJ L65/1.

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2. When requesting legal assistance, can the request be challenged by the person concerned on the basis of any of the following legal standards: (a) Law of the requesting state (criminal law, procedural law, national ordre public, constitutional law)? (b) Law of the requested state? (c) International law (ECHR, international ordre public, fundamental rights)? (d) EU law (CFR, Directives on the rights of the defendant)? B. The Framework of Cooperation Within the EU (if applicable) Please answer questions A.1 and 2 insofar as there are differences from the general framework (subsection A). IV. Pleading Requirements This section aims at finding out which requirements have to be met under national law in order to successfully invoke a reason for refusing cooperation. If necessary, distinguish between cooperation with EU Member States and that with non-Member States in different subsections (see supra III.A and B). 1. Who can invoke a reason for refusal? Who bears the burden of proof? 2. What has to be argued before the court? How much detail must be provided? 3. Are there differences between arguments based on the law of the requesting state, the law of the requested state, international law, and EU law (see supra III.A.1.)? 4. Are there differences between different types of cooperation (extradition, enforcement of prison sentences, gathering of evidence)? V. Guarantees Given by the Requesting State (Zusicherung) If a request must not be granted for the risk of human rights violations (e.g. inhuman detention conditions, in absentia proceedings), the requesting state might meet these concerns by a guarantee to treat the surrendered person in accordance with international human rights standards. If necessary, distinguish between cooperation with EU Member States and that with non-Member States in different subsections (see supra III.A and B). 1. What is the legal status of such a guarantee? • Under which conditions can a guarantee remove an obstacle to international cooperation? • Is the requested state obliged to accept the guarantee? • Is the requested state required to monitor the case after the request has been granted? 2. If your state has given such a guarantee, can the individual concerned file a complaint against a violation of the guarantee? 3. If your state has accepted such a guarantee, what happens if the guarantee is violated after the request has been executed?

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(a) Can the person concerned file a complaint against the authority that has granted the request? Can the individual require the competent authority to take action against the requesting state? (b) Can the person concerned claim damages from your country? VI. Effectiveness of Judicial Review This section examines the effectiveness of judicial review, taking into account the specific situation of transnational criminal proceedings. If necessary, distinguish between cooperation with EU Member States and that with non-Member States in different subsections (see supra III.A and B). 1. General requirements for effective judicial review: (a) Is the requested state obliged to inform the person concerned of the request before taking a decision on whether or not to grant the request? If yes, does this information include the legal basis of the request under foreign law and, if necessary, a translation? (b) Is the requesting state obliged to inform the person concerned of the request? Does the person concerned have access to information about a request for provisional arrest in an international database (e.g. in the Schengen Information System II)? (c) Does the individual concerned have access to the file before or after lodging the appeal or another legal remedy? (d) Does the remedy have a suspensory effect in the requested state; i.e., is the execution of the request or the transfer of information stopped until the court has decided about the remedy? (e) Does challenging the foreign request in the foreign legal system have a suspensory effect on cooperation? (f) What are the consequences if the court holds that international cooperation is inadmissible before it is executed? Is it possible to claim damages (e.g. for wrongful detention)? 2. The traditional model of judicial review in the mutual legal assistance framework causes certain hardships for the individual who has to apply for judicial review in both the requesting and the requested states. This situation can be addressed by additional procedural safeguards. For instance, in proceedings about the execution of a European arrest warrant, EU law contains special procedural guarantees in both the issuing and the executing state.55 (a) Does national law provide help in finding a lawyer in the foreign state? If so, does this right apply to all kinds of legal assistance procedures? (b) Does national law provide support for translating a legal remedy?56

55 See, e.g., Art. 3 (6) Directive 2010/64/EU of 20 October 2010, OJ 2010 L 280/1; Art. 5 Directive 2012/13/EU of 22 May 2012, OJ 2012 L 142/1; Art. 10 Directive 2013/48/EU of 22 October 2013, OJ 2013 L 294/1. 56 See, in this context, for instance CJEU, judgment of 12 October 2017, Case C 278/16 (Sleutjes) on the need to translate a penal order (“Strafbefehl”).

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(c) Is there any other procedural support available? Please limit your analysis to special provisions for international cooperation in criminal matters that have to do with the need for legal remedies in two states. 3. Ineffectiveness of ex post facto judicial review If a legal remedy does not have suspensory effect, it could happen that the request has already been executed, i.e. the information transferred or the person surrendered/extradited or the judgment enforced, before it is finally found that legal assistance must not be granted. (a) If your state has requested cooperation and is later on informed that the granting of legal assistance or the execution was declared illegal by the courts, what are the consequences? May the transmitted information still be used in criminal proceedings as evidence? Is there an obligation to have the information that followed from the execution of the request transferred back? What happens in extradition cases? (b) If your state has executed the request and this decision is later on repealed by the competent court, what are the consequences? Is there an obligation of the state to inform the foreign state? Does the competent authority have to call upon the requesting state to return the evidence (or delete the information) or the extradited/surrendered person? (c) Considering that it might be difficult to undo an illegal transfer of information or persons, is your state obliged to make such an undoing possible, e.g. by making the transfer of evidence subject to the condition that the evidence must be returned if a court of the requested state takes a final decision that the evidence has been transferred illegally?

References Ahlbrecht H, Schlei M (2013). Verteidigung gegen und mit Rechtshilfe. Strafverteidiger Forum 7:265-278 Böse M (2012) § 83 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationale Rechtshilfe in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Böse M (2013) Recommendations on making proportionate use of the European Arrest Warrant. In: Albers P, Beauvais P, Bohnert J-F, Böse M, Langbroek P, Renier A, Wahl T (eds) (2013) Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters, Available at https://www.government.nl/documents/reports/ 2013/09/27/final-report-towards-a-common-evaluation-framework-to-assess-mutual-trust-inthe-field-of-eu-judicial-cooperation-in-criminal-m Böse M (2014) Die Europäische Ermittlungsanordnung – Beweistransfer nach neuen Regeln? Zeitschrift für Internationale Strafrechtsdogmatik 4:162–164 Esser R (2011) Auswirkungen der Europäischen Beweisanordnung auf das deutsche Strafverfahren. In: Heinrich M, Jäger C, Achenbach H, Amelung K, Bottke W, Haffke B, Schünemann B, Wolter J (eds) (2011) Strafrecht als Scientia Universalis - Festschrift für Claus Roxin zum 80. Geburtstag, De Gryter, Berlin/New York

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Gaede K (2013) § 3. In: Böse M (ed) (2013) Europäisches Strafrecht mit polizeilicher Zusammenarbeit, Enzyklopädie Europarecht, vol. 9, Nomos, Baden-Baden Gleß S (2013) Transnational cooperation in criminal matters and the guarantee of a fair trail: approaches to a general principle. Utrecht Law Rev 9(4):90–108 Hackner T (2020a) § 74 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T (2020b) § 78 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Häde U (1997) Die Auslieferung – Rechtsinstitut zwischen Völkerrecht und Grundrechten. Der Staat 36:1–26 Harings L (1998) Grenzüberschreitende Zusammenarbeit der Polizei- und Zollverwaltungen und Rechtsschutz in Deutschland, Berlin Herrnfeld HH (2019) Art. 67 AEUV. In: Schwarze J, Becker U, Hatje A, Schoo J (eds) (2019) EU-Kommentar, 4th edn. Nomos, Baden-Baden Hofmann R (1994) Grundrechte und grenzüberschreitende Sachverhalte, Berlin Johnson C (2012) §§ 60 – 61 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Kahl W (2013) § 253. In: Isensee J, Kirchhof P (eds) (2013) Handbuch des Staatsrechts, vol.11. Internationale Bezüge, C.F. Müller, Heidelberg Kromrey H, Morgenstern C (2014) Auslieferung bei drohender lebenslanger Freiheitsstrafe ohne Aussetzungsmöglichkeit. Zeitschrift für Internationale Strafrechtsdogmatik 13:704–716 Lagodny O (2005) Eckpunkte für die zukünftige Ausgestaltung des deutschen Auslieferungsverfahrens. Der Strafverteidiger 9:515–519 Lorz A, Sauer H (2010) Wann genau steht Art. 3 EMRK einer Auslieferung oder Ausweisung entgegen? Europäische GRUNDRECHTE-Zeitschrift 37:389–407 Manifest zum Europäischen Strafverfahrensrecht (2013) Zeitschrift für Internationale Strafrechtsdogmatik 11:406–482 Meyer F (2014) § 38 Rechtsschutz im europäischen Strafrecht. In: Leible St, Terhechte JP (eds) (2014) Europäisches Rechtsschutz- und Verfahrensrecht, Enzyklopädie Europarecht, vol. 3, Nomos, Baden-Baden Meyer F (2016a) Anmerkung zum Urteil des EuGH vom 05.04.2016 (Az: C-404/15) – “Zur Frage der Auslegung des Rahmenbeschlusses zum Europäischen Haftbefehl”. JuristenZeitung 2016:621–624 Meyer F (2016b) Verbundstrafverfolgung in der EU. Funktionelle und verfahrensrechtliche Vermessung eines neuen Phänomens. In: Herzog F, Schlothauer R, Wohlers W (eds) in Verbindung mit Wolter J (2016) Rechtsstaatlicher Strafprozess und Bürgerrechte. Gedächtnisschrift für Edda Weßlau, Duckner&Humblot, Berlin Meyer F, Hüttemann SD (2016) Internationale Fahndung nach Personen – von Steckbriefen, Rotecken und Funksprüchen. Zeitschrift für die gesamte Strafrechtswissenschaft 128:394–445 Reinbacher T, Wendel M (2016) Menschenwürde und Europäischer Haftbefehl – Zum ebenenübergreifenden Schutz grundrechtlicher Elementargarantien im europäischen Auslieferungsverfahren. Europäische GRUNDRECHTE-Zeitschrift 43:333–343 Roger B (2010) Europäisierung des Strafverfahrens- oder nur der Strafverfolgung? Zum Rahmenbeschluss über die Europäische Beweisanordnung. Goldtdammer’s Archiv für Strafrecht 157:27–44 Satzger H (2016) Grund- und menschenrechtliche Grenzen für die Vollstreckung eines Europäischen Haftbefehls? – “Verfassungsgerichtliche Identitätskontrolle” durch das BVerfG vs. Vollstreckungsaufschub bei “außergewöhnlichen Umständen” nach dem EuGH. Neue Zeitschrift für Strafrecht 9:514–522 Schallmoser N (2012) Europäischer Haftbefehl und Grundrechte, Wien Schmidt-Aßmann E (2012) Ansätze zur Internationalisierung verwaltungsgerichtlichen Rechtsschutzes. In: Hestermeyer HP, König D, Matz-Lück N, Röben V, Seibert-Fohr A, Stoll PT, Vöneky S (eds) (2012) Liber amicorum Rüdiger Wolfrum, Leiden

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Schomburg W, Lagodny O, Gleß S, Hackner T (eds) (2012) Einleitung. Internationale Rechtshilfe in Strafsachen, 5th edn. C.H. Beck, München Schomburg W, Lagodny O, Schallmoser N (2013) § 13 Grundlagen der Zusammenarbeit. In: Böse M (ed) (2013) Europäisches Strafrecht mit polizeilicher Zusammenarbeit, Enzyklopädie Europarecht, vol. 9, Nomos, Baden-Baden Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Einleitung. Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Schünemann B (2006) Ein Gesamtkonzept für die europäische Strafrechtspflege. In: Schünemann B (ed) (2006) Ein Gesamtkonzept für die europäische Strafrechtspflege, Köln Schünemann B, Roger B (2010) Stellungnahme zum Grünbuch der EU-Kommission “Erlangung verwertbarer Beweise in Strafsachen aus einem anderen Mitgliedstaat” (KOM [2009] 624 endg.) Zeitschrift für Internationale Strafrechtsdogmatik 2:92–99 Schuster FP (2006) Verwertbarkeit im Ausland gewonnener Beweise im deutschen Strafprozess, Berlin Suominen A (2014) The Nordic Arrest Warrant finally in force. Eur Crim Law Rev 4(1):41–45 Vogel J, Burchard C (2017) Vor § 1 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg von Arnauld A (2011) Die Rückkehr des Bürgers: Paradigmenwechsel im Europäischen und Internationalen Verwaltungsrecht? In: Häberle P (ed) (2011) Jahrbuch des öffentlichen Rechts, Neue Folge, vol. 59, Mohr Siebeck, Tübingen

Martin Böse Professor of Criminal Law, Criminal Procedure, International and European Criminal Law, University of Bonn, Germany. Maria Bröcker Research assistant, University of Bonn, Germany. Anne Schneider Professor of German, European and International Criminal Law, Criminal Procedure, White Collar Crime, University of Mannheim, Germany.

Chapter 2

Country Report “Austria” Nina Marlene Schallmoser

2.1 2.1.1

Overview Judicial Protection in the Criminal Justice System

The right to judicial protection in criminal proceedings, in Austria, is anchored in the European Convention on Human Rights (ECHR). The ECHR is directly applicable as a national constitutional law.1 Therefore, there is a comprehensive guarantee to judicial protection and to access to a national criminal court in purely national and also in matters of transnational criminal proceedings. Both relevant legal acts (below Sect. 2.1.2) dealing with matters of transnational criminal proceedings ensure, in principle, a procedure with two instances. The institutional and procedural framework of these proceedings will be described more precisely in the following.

2.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

The Austrian legal system of transnational mutual assistance is divided into two different legal acts. In both, the right to a judicial review of decisions on mutual legal assistance is expressed by a provision, according to which the Austrian Criminal Procedure Code (StPO) is applicable subsidiarily (§ 9 of Auslieferungs- und 1 Art II No 7 of Constitutional Law Act from 4 March 1964, Federal Law Gazette No 59/1964, available online: www.ris.bka.gv.at/Bund (31 March 2020).

N. M. Schallmoser (*) University of Salzburg, Salzburg, Austria © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_2

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Rechtshilfegesetz (AHRG)/§ 1 Sec 2 of Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union (EU-JZG), together with § 9 ARHG). First of all, the ARHG2 as Law on Extradition and Mutual Assistance is applicable in relation to non-Member States of the EU. Together with the ARHV (Auslieferungs- und Rechtshilfeverordnung) as additional regulation, it regulates several forms of international cooperation in criminal matters with states that are not members of the EU, insofar as there are no bilateral treaties (§ 1 ARHG). It contains provisions on extradition (Austria as requested state: §§ 10 ff ARHG, Austria as requesting state: §§ 68 ff ARHG), the enforcement of prison sentences (Austria as requested state: §§ 64 ff ARHG, Austria as requesting state: § 76 ARHG), gathering of evidence by means of search and seizure, interrogation and telecommunication surveillance (Austria as requested state: §§ 50 ff ARHG, Austria as requesting state: §§ 71 ff ARHG). The second legal act deals with judicial cooperation in criminal matters with the Member States of the European Union (EU-JZG3) and provides rules for surrender (Austria as executing state: §§ 3 ff EU-JZG, Austria as issuing state: §§ 29 ff EU-JZG), the enforcement of prison sentences (Austria as executing state: §§ 39 ff EU-JZG, Austria as issuing state: §§ 42 ff EU-JZG), search and seizure (Austria as executing state: §§ 45 ff EU-JZG, Austria as issuing state: no regulations) and the gathering of evidence, which is the object of the present project (Austria as executing state: §§ 55 ff EU-JZG, Austria as issuing state: §§ 56 ff EU-JZG). The last large amendment of the EU-JZG dealt with the implementation of the European investigation order.4 Following from the described guarantee to judicial review (2.1.1), the defendant/ concerned person as well as the public prosecutor can raise a complaint to a higher court against a judicial decision in matters of transnational cooperation (“Beschwerde”, §§ 87 ff StPO5) as a legal remedy.6 In these cases, first of all, the defendant/concerned person himself/herself is legitimated to challenge the final decision; second, the public prosecutor can challenge the court’s decision; and, 2

Federal Law Gazette No 529/1979 in the current version. Federal Law Gazette No I 36/2004 in the current version. 4 Federal Law Gazette No I 28/2018. 5 To the special legal situation before the year 2004: RIS-Justiz RS0117728, available online: www. ris.bka.gv.at/Judikatur (18 February 2020); Göth-Flemmich (2016b), Vor §§ 26-41 ARHG para 2: After a decision of the Austrian Constitutional Court (decision of 12 December 2002 – G 151, 152/02, VfSlg 16772 ¼ Juristische Blätter 2003, p. 437, Federal Law Gazette No I 6/2003) this right to a complaint was explicitly anchored in the ARHG. 6 The appeal must be filed within 14 days of notification of the decision (§ 88 Sec 1 StPO in conjunction with § 1 Sec 2 EU-JZG and § 9 Sec 1 ARHG). The Higher Regional Court is the competent appeal Court (§ 33 Sec 1 No 1 StPO in conjunction with § 1 Sec 2 EU-JZG and § 9 Sec 1 ARHG) and decides as a three-judge senate. There is no prohibition to bring forward new facts or evidence in the second instance (“kein Neuerungsverbot”; see for further details e.g. Hinterhofer [2019b], § 21 EU-JZG para 27; Wirth and Hinterhofer [2015], § 46 EU-JZG para 8; Göth-Flemmich [2018b], § 31 ARHG para 9 f). 3

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third, “any other person who is directly denied rights or obligations by the decision or who is affected by a coercive measure may appeal to the Appeal Court against a decision”7 (e.g. the owner of a seized object). In addition, there are several special remedies that can be raised, not only in national but also in transnational criminal proceedings. Against a violation of rights through the national police8 or the prosecutor when executing an arrest warrant or investigative measure, there is the possibility to plea for an appeal (Einspruch) to a court (§ 106 StPO). The same legal remedy exists if the defendant/concerned person wants to appeal against the decision of an Austrian public prosecutor to request legal assistance from a foreign country. For example, an appeal may be lodged against an infringement under the preconditions of § 106 StPO (in conjunction with § 1 Abs 2 EU-JZG in conjunction with § 9 Sec 1 ARHG; see also below Sect. 2.2.3) against the obtainment of a seizure in other EU countries by the public prosecutor.9 If the defendant/concerned person feels violated in fundamental rights, the person moreover can request a renewal of the proceeding (Erneuerungsantrag) to the Austrian High Court in Criminal Matters (Oberster Gerichtshof in Strafsachen (OGH), § 363a StPO).10 To assert other legal mistakes, the defendant/concerned person can also suggest to the so-called general procurator (Generalprokuratur, § 22 StPO) to raise a “nullity complaint for the purpose of maintaining the law” (“Nichtigkeitsbeschwerde zur Wahrung des Gesetzes”, §§ 23, 292 StPO) to the Austrian High Court, but the defendant/concerned person has no legal right for the general procurator to follow his/her suggestion. Finally, according to the Austrian Law on Fundamental Rights Complaints (Grundrechtsbeschwerdegesetz (GRBG)11), several violations of illegal arrest of persons during transnational criminal proceedings (not in the state of executing a sentence, only during custody) can also be brought before the Austrian High Court (§ 1 Sec 2 GRBG). § 1 Sec 1 GRBG refers to any violation of the fundamental right to personal freedom (as anchored, e.g., in Art 5 ECHR) through domestic criminal court decisions and allows the referral to the Austrian High Court by means of a fundamental rights complaint after exhaustion of appeal. According to § 87 Sec 1 StPO translated. With some exceptions. 9 Wirth and Hinterhofer (2015), § 46 EU-JZG para 10. 10 Such a claim for renewal of the proceeding is also possible in cases where Austria grants legal assistance to a foreign country: RIS-Justiz RS0124738; for details to this possibility GöthFlemmich (2018c), § 33 ARHG para 10 ff: Prerequisite is the clear and definite designation in which fundamental right the complainant considers himself/herself to have been injured (Austrian High Court, decision of 13 February 2008 – 13 Os 150/07v ¼ Evidenzblatt 2008/83, 416 ¼ Juristische Blätter 2009, 60; Austrian High Court, decision of 8 January 2010 – 15 Os 178/09d; Austrian High Court, decision of 28 April 2015 – 14 Os 28/15x ¼ Evidenzblatt 2015/136, 950; see also RIS-Justiz RS0124359). In this framework the Austrian High Court also examines possible violations of Art 2, 3, 6 or 8 ECHR (Göth-Flemmich [2018c], § 33 ARHG para 11). The Court can also grant a suspensory effect of such a claim (Austrian High Court, decision of 19 January 2012 – 13 Os 156/11g; Austrian High Court, decision of 15 April 2015 – 13 Os 27/15t; RIS-Justiz RS0125705). 11 Federal Law Gazette 864/1992 in the current version. 7 8

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§ 2 GRBG, there is a violation of fundamental rights in particular if the imposition or maintenance of imprisonment is disproportionate; the duration of detention has become disproportionate; the preconditions of imprisonment, such as suspicion or grounds for detention, have been assessed incorrectly or the law was incorrectly applied to an arrest or detention in any other way (Sec 1); or if a court’s decision terminating a restriction of freedom was taken too late (Sec 2).12 This means that, e.g., also detention during an extradition/surrender procedure can be challenged (even in cases where the extradition/surrender is requested for the execution of an imprisonment sentence13) if it was unlawful,14 but, of course, the admissibility of extradition itself is no prerequisite for lawful detention during the extradition proceeding.15 Following the rules of the ARHG, mutual legal assistance also depends on the granting of the Austrian Minister of Justice (see below). To challenge his/her decision, it is possible to raise a claim to the Austrian Administrative High Court or even to the Austrian Constitutional Court.16 The responsibilities for decisions during transnational criminal proceedings depend, on the one hand, on the form of cooperation and, moreover, on the legal act applicable and, on the other hand, on the role of Austria as the requested or the requesting state. Therefore, differentiation is necessary. According to the ARHG, the involved persons in trials to grant or refuse a request for cooperation in criminal matters are the single judge at the Regional Court (Landesgericht als Einzelrichter), the public prosecutor and the Minister of Justice in the first instance. In detail, the responsibility for first-instance decisions in extradition matters lies with the single judge at the Regional Court (§ 31 ARHG). A single judge at the Regional Court is also responsible for deciding on detentions in extradition cases (§ 29 Sec 1 ARHG and § 31 Sec 1 No 2 StPO). If the conditions of simplified extradition (§ 32 ARHG) are met, the Minister of Justice must, in principle, order the surrender of the person to be extradited without prior judicial proceedings; an exception has to be made if one of the conditions laid down in the first section of Part II of the ARHG applies. Such exceptions apply if Göth-Flemmich (2018a), § 29 ARHG para 22; to decisions especially in extradition cases para 23 ff. 13 RIS-Justiz RS0118056; Göth-Flemmich (2018a), § 29 ARHG para 30. 14 RIS-Justiz RS0061063: Raising such a complaint successfully is also possible if Austria is requesting extradition/surrender of a person: In such proceedings for obtaining extradition to Austria, a judicially granted arrest warrant as basis of international warrants can be object of such a complaint if it is prejudicial to the foreign decision on detention as soon as the foreign arrest has been effectuated. It is therefore essential that on the basis of the Austrian arrest warrant an arrest by the foreign country actually took place (RIS-Justiz RS0111222, RS0114093; Göth-Flemmich [2018a], § 29 ARHG para 33). 15 RIS-Justiz RS0120452. The Court’s decision on granting or refusing the extradition or surrender also cannot be challenged with the legal remedy anchored in the GRBG (RIS-Justiz RS0116089; Hinterhofer [2019a], § 18 EU-JZG para 30). 16 See for an example Austrian High Court, decision of 1 April 2008 – 11 Os 46/08m ¼ Richterzeitung 2009, 16; or Austrian Administrative High Court, decision of 13 June 2002 – 2002/06/0073. 12

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there are doubts about the admissibility of the extradition due to the prohibition of extradition of Austrian citizens, criminal acts of a political nature, military and fiscal criminal acts, statute of limitation (Verjährung) or also principles of the rule of law, including Arts 3 and 6 ECHR as well as cases of discrimination and hardship cases. In these cases, instead of ordering the extradition, the judicial proceedings (according to Arts 31, 33 and 34 Secs 1, 2 and 4 ARHG) must be carried out at first. In this respect, the Minister of Justice also ensures legal protection to a certain, although limited, extent, as well as for fundamental rights considerations. In the framework of the ARHG, the public prosecutor is responsible for granting general legal assistance (§ 55 ARHG). Additionally, approval by the Minister of Justice is required each for extradition and the granting of legal assistance. A single judge finally decides on the enforcement of foreign prison sentences, except for sentences of at least 5 years of imprisonment; in these cases, a senate of three judges is responsible for deciding (§ 67 Abs 1 ARHG). Competent to provide judicial protection in cases of legal remedies is the Higher Regional Court (for complaints, as mentioned in §§ 87 ff StPO, § 33 Sec 1 No 1 StPO); the Regional Court for appeals, as regulated in § 106 StPO (§ 31 Sec 1 No 3 StPO); and, in special cases, the Austrian High Court (§§ 23, 292 StPO, § 363a StPO, § 1 Sec 1 GRBG). According to the EU-JZG, the Minister of Justice has no—with one exception— competence at all. The competent authorities in the first instance, therefore, are only the public prosecutor and the Regional Court. In detail, decisions on detention (§ 18 EU-JZG) are taken by a single judge at the Regional Court (§ 18 Sec 2 EU-JZG and § 29 ARHG), as well as on surrender (§ 21 EU-JZG) based on an application of the public prosecutor (§ 16 EU-JZG). According to § 40a Sec 1 EU-JZG, the jurisdiction for enforcements of prison sentences is the same as within the framework of the ARHG (§ 31 Abs 6 StPO). The decision on foreign requests for search and seizure is made by a single judge at the Regional Court (§ 46 Sec 1 EU-JZG).17 For cross-border gathering of evidence, usually the public prosecutor is competent (§ 55c EU-JZG, with exceptions in Sec 3). Legal remedies can be lodged, as in ARHG cases, in the Regional Court (in cases of § 106 StPO), the Higher Regional Court (in cases of §§ 87 ff StPO) and the Austrian High Court in the mentioned special cases. All responsibilities, in principle, have the following common characteristics: first of all, the competent judicial authorities have no discretion whether or not to grant a request. As several provisions in the ARHG and EU-JZG dealing with the granting or refusing of foreign requests, especially the different explicitly formulated grounds for refusal, are formulated as obligatory rules, there is no discretion for public prosecutors and courts.18 Second, as a result of the above mentioned, in Austrian Wirth and Hinterhofer (2015), § 46 EU-JZG para 4 referring to § 31 Sec 1 No 2 StPO. In the framework of the ARHG, where the Minister of Justice decides on extraditions as an instance, there is some scope for discretion in political belongings: According to § 34 Sec 1 ARHG, the Minister shall decide on the extradition request in accordance with international agreements and the principles of intergovernmental legal relations. In so doing, he shall take into account the interests and obligations of Austria under international law. The discretion in weighing the colliding 17 18

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law on transnational criminal proceedings, there is no ex ante review of a judicial decision. The second instance can only be appointed for review after a first-instance decision (ex post). If Austria has the role of the requesting/issuing state, the competences are different: in ARHG cases (obtaining of cooperation with non-Member States of the EU), for decisions on a request to another state for extradition, the single judge at a Regional Court shall, on the basis of an application of the public prosecutor, send the relevant documents to the Ministry of Justice, which shall then ask for legal assistance (§ 68 Sec 1 ARHG). The decision to issue a request for extradition is therefore made by the public prosecutor jointly with the Minister of Justice. If an Austrian sentence of imprisonment shall be executed in a foreign state, according to § 76 ARHG, the single judge or the chairman of the senate who decided on the case is responsible for sending the relevant documents to the Ministry of Justice in order to obtain the execution of the penalty (the competence, therefore, depends on the competences for the main trial according to the StPO). In cases within the scope of application of the EU-JZG (intended cooperation with Member States of the EU), the public prosecutor needs the judicial approval of a national arrest warrant, which then can be expanded to a European arrest warrant, which has again to be approved by the court. Such approvals are given by the single judge at the Regional Court in the pretrial phase (§ 31 Sec 1 No 2 StPO, § 29 EU-JZG). The decision to issue a European arrest warrant is then made by the public prosecutor.19 If the execution of a national sentence of imprisonment shall be obtained, the responsibility is regulated in §§ 42a f EU-JZG and § 76 ARHG: if the convicted person resides in Austria, the director of the penitentiary has to initiate contact to the foreign Member State via the Ministry of Justice (§§ 42a and 42b EU-JZG). If the convicted person does not reside in Austria, according to § 76 ARHG, the single judge or the chairman of the senate who decided on the case is responsible for sending the relevant documents to the Ministry of Justice to obtain the execution of the penalty. If a European investigation order shall be issued, the public prosecutor is the competent authority; there is no separate judicial approval needed. Only in cases of judicial investigation measures (§ 104 StPO) and after the indictment shall the court issue the European investigation order (§ 56 Abs 2 EU-JZG). The responsibility for other forms of mutual legal assistance within the scope of the EU-JZG depends on the competences according to the StPO for corresponding purely national criminal proceedings (§§ 71 ff ARHG e contrario). If, for example, a national decision on search and seizure shall be executed by a foreign state (§ 46 EU-JZG), the EU-JZG does not contain a provision on the competence to issuing such a request. In purely national criminal proceedings, the public prosecutor is,

interests is therefore limited to these merely political aspects. It does not extend to fundamental rights questions or any other individual rights of the defendant/concerned person. 19 For a European arrest warrant in sum two Court decisions are necessary (§ 29 Sec 1 EU-JZG; RIS-Justiz RG0000053; different opinion: RIS-Justiz RL0000073).

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according to §§ 109 No 2, 115 StPO, competent to order such a seizure on the basis of judicial approval. Therefore, issuing such a request to a foreign EU country also needs a decision of a court and an order of the public prosecutor (§§ 109 No 2, 115 StPO, together with § 1 Sec 2 EU-JZG and § 9 Sec 1 ARHG).20

2.2 2.2.1

Subject Matter of Judicial Control International and Internal Dimensions of the Granting Decision

The decision on a foreign request requires an examination of two issues, namely on whether to grant legal assistance to the requesting state (international dimension, e.g. ordre public) and on the measures to execute the request (internal dimension, e.g. search and seizure as regulated in §§ 109 ff StPO). Both issues are usually dealt with jointly in the same procedure under both ARHG (§ 31, § 55, § 67 ARHG) and EU-JZG (§§ 20, 21, § 41b EU-JZG). An exception is provided in cases where the Minister of Justice decides separately, as he or she alone considers the international dimension (e.g. § 34 ARHG). Another exception exists in matters of the execution of a European investigation order, where the decisions are taken in two steps (§ 55e EU-JZG). All issues underlie, as mentioned before, judicial control. The ordinary legal remedy against the judicial decision of the first instance is a complaint, as laid down in §§ 87 ff StPO, to the Higher Regional Court. Only in cases of the European investigation order, for the decision of the public prosecutor about its enforcement the (separate) legal remedy would be an appeal according to § 106 StPO (§ 55e Sec 4 ARHG). In all cases, it is important to note that mutual legal assistance can only be granted if the prerequisites for the different measures according to purely national law are fulfilled too: detention to ensure the enforcement of a European arrest warrant is only possible, for example, if the prerequisites of pretrial detention according to §§ 173 ff StPO are fulfilled in principle; only the degree of suspicion is lower than according to the StPO (see also below).21 Whilst judicial control of the internal dimension is mostly comprehensive, control of the international dimension is limited to strictly formulated grounds for refusal and narrow review. Only in some cases would the circumstance of the procedure being a transnational one also lead to a narrower scope of review of the purely internal dimension. One example, of course, is the review of the grounds of suspicion: according to § 173 Sec 1 StPO, a detention is only possible if the suspicion is “urgent” (dringend), whereas following § 33 Sec 2 ARHG, it only has to be “sufficient” (hinreichend). 20 21

Wirth and Hinterhofer (2015), § 46 EU-JZG para 9. Göth-Flemmich (2018a), § 29 ARHG para 4; Hinterhofer (2019a), § 18 EU-JZG para 6.

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2.2.2

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Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

At this point of consideration, the question arises if the Austrian judicial authority can incidentally examine the lawfulness of the foreign request under foreign law and the decisions on which it is based (e.g. an arrest or a search warrant). According to Austrian law, not surprisingly, the standard of judicial review, in principle, is never the foreign law. A look at ARHG and EU-JZG shows that only two cases could be qualified as situations where Austrian authorities incidentally examine the lawfulness of the foreign request under foreign law. The first constellation relates to a limited review of suspicion in extradition/surrender cases: in the scope of § 33 Sec 2 ARHG (together with § 19 Sec 1 EU-JZG for European arrest warrants), in exceptional constellations, it is allowed to examine whether or not the defendant/concerned person is sufficiently suspected of the offence to which he/she is accused according to the extradition documents/form. This can be examined if there are significant doubts, in particular, where evidence exists or is available to undermine the suspicion without any delay. Immediate proof of the impossibility of the offence makes extradition inadmissible.22 The defendant/concerned person must state substantiated arguments that raise significant concerns about the suspicion. Documents that only reduce the suspicion but do not immediately and without doubt invalidate it are not enough; they do not even lead to a narrower examination by the court.23 Solely denying responsibility of the person is also not suitable for reducing the credibility of the arrest warrant.24 Vice versa, if the foreign arrest warrant is coherent, in principle, there must be no strict control of suspicion according to Austrian law. This coherence has to be examined by checking the sent documents and not by generating facts independently.25 Therefore, not the completeness and flawless justification of the assumptions of facts in the foreign request are the reference points of examination but (only) the (key) statements.26 Exculpatory evidence must be collected only if this is possible without delay.27 The second constellation relates to very narrow cases in which Austrian law refers directly to foreign law. Some provisions should be mentioned by way of example: especially according to the ARHG, different provisions take foreign law into consideration. § 18 ARHG, for example, declares extradition inadmissible if the prosecution of the person is statute-barred according to the law of the requesting state; § Mayerhofer (2015), § 33 ARHG E 6. RIS-Justiz RS0125233. 24 Mayerhofer (2015), § 33 ARHG E 2 and 9. 25 RIS-Justiz RS0087119; Austrian High Court, decision of 16 February 2012 – 13 Os 15/12y; Göth-Flemmich (2018a), § 29 ARHG para 4, § 33 ARHG para 3. 26 Austrian High Court, decision of 19 August 2015 – 13 Os 89/15k. 27 According to Göth-Flemmich (2018c), § 33 ARHG para 5, evidences which can be taken in Austria are usually qualified as such which can be collected without delay. 22 23

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21 does the same for cases in which the defendant/concerned person is incapable of crime due to young age under foreign law. § 11 ARHG (for the framework of the cooperation with EU Member States: § 4 EU-JZG) anchors a minimum threat of penalty under the law of the requesting state as a prerequisite for extradition. In these constellations, the Austrian judicial authority is obliged to consider the foreign legal situation and to assess whether foreign law was violated or not. It can only be speculated as to why a foreign request, with the exception of the cases mentioned above, as a rule cannot be examined incidentally by the Austrian judicial authorities. Most likely, the reasons are of political nature: within the scope of the ARHG, the traditional maxims of cooperation were not to interfere in foreign proceedings. Moreover, the lack of legal knowledge about the foreign law system would also be a significant problem, especially since the several documents and evidence are in the foreign country. For the scope of the EU-JZG, a judicial review of the foreign request under foreign law would also contradict the principle of mutual recognition, which is stated as the milestone of cooperation within the Member States of the EU. A rule according to which such a review was possible in Austria can be considered as infringing EU law. On those grounds, the Austrian High Court argues as follows (freely translated to English): In accordance with the Continental European legal tradition, not only the extradition procedure but also legal assistance, in general, is dominated by the principle of solely formal examination. The assumption of a more extensive duty to examination through the requested state would oppose the nature of mutual legal assistance, which is based precisely on the fact that the person concerned can defend himself or herself in the requesting state within the framework of a proceeding in accordance with the rule of law.28

Besides, it is not possible to lodge a legal remedy against the foreign request in a court of Austria that triggers judicial review in the requesting state.

2.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

As a rule, the abstract decision of an Austrian judicial body to request legal assistance is not itself the subject of judicial review (external dimension) during transnational criminal proceedings. Therefore, a direct review is not intended. If a court or the public prosecutor wants to request foreign legal assistance, it is necessary that the national prerequisites for the procedural measure which the foreign state should take instead of Austria are met. If they are not, the defendant/concerned person can raise a legal remedy against this national/internal mistake (e.g. a complaint or an appeal as described above in Sect. 2.1.2, internal dimension29). There is

28

RIS-Justiz RS0125233. E.g. § 56a EU-JZG: “The executing authority must be informed if an appeal on the grounds of infringement of rights under Section 106 of the Code of Criminal Procedure or a complaint under

29

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especially one exception from this rule: according to § 29 Sec 1 EU-JZG, the public prosecutor can only order the arrest of a person on the basis of a judicially authorised European arrest warrant. This judicial decision is also contestable by an appeal, as described above in Sect. 2.1.2. Another question is if the corresponding arguments can be raised in the trial phase (incidental/indirect review), especially as a prohibition of the use of certain evidence gained by means of international cooperation. The question cannot be answered uniformly for all kinds of evidence. According to the jurisdiction of the Austrian High Court, the rule in purely national criminal proceedings is that the injury of a prohibition of evidence in the preliminary proceedings does not automatically result in a prohibition against using the evidence in the trial.30 This can be concluded from the circumstance that the Austrian Criminal Procedure Code expressively formulates such prohibitions of use of evidence (Beweiswertungsverbote) in certain cases. Resulting from a reversal, in cases in which the evidence was gained by violating the norms of the StPO without such explicit prohibitions, the use of evidence in the trial can only be challenged with a so-called complaint of nullity based on § 281 Sec 1 No 4 StPO: according to this provision, the judgment of the first instance is null if the court did not deal with an application of the defendant or notwithstanding his/her application or objection, laws or procedural principles have been disregarded or incorrectly applied during the main trial. Such principles are especially those granted by Art 6 ECHR. So threatening the fairness of a trial by violating evidence rules can lead to a renewal of the trial. These principles, although they were gained from law of purely national proceedings, must, in my opinion, also be applied to transnational criminal proceedings (unity of law). Relevant jurisdiction to this question could not be found. For illegal requests from Austria, this means the following: if the national prerequisites for a certain investigative measure are not fulfilled, a request of Austria to a foreign country to execute this investigative measure is also illegal. The use of evidence gained in this investigative measure in a later trial nevertheless depends on the above-mentioned principles of (in)admissibility of evidence, according to which especially the StPO must explicitly forbid the usage. A look at the national provisions for the gathering of evidence through search and seizure (§§ 109 ff StPO), interrogation (§§ 164 ff StPO) and telecommunication surveillance (§§ 134 ff StPO) shows the following: § 139 Sec 4 and § 140 StPO contain such explicit prohibitions against the use of evidence gathered through illegally executed telecommunication surveillances. § 159 Sec 3 StPO formulates the duty to destroy the protocols of interrogations of certain witnesses and anchors the nullity of such testimonies. A list of further prohibitions on evidence gathered through an interrogation of accused persons or witnesses is formulated in § 166 StPO: if the testimony was given under

Section 87 of the Code of Criminal Procedure has been lodged against the measure referred to in the European Investigation Order. . .” 30 E.g. Austrian High Court, decision of 21 July 2009 – 14 Os 46/09k (14 Os 47/09g) ¼ Evidenzblatt 2009/131, 867.

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torture (Art 3 ECHR) or under violation of fundamental principles of fair trial, it must not be used in the further trial. For illegal decisions on the Austrian request in the requested state, the above considerations mean the following: taking into account the mentioned principles of (in)admissibility of evidence, ARHG or EU-JZG must explicitly formulate a prohibition against the use of certain evidence that was gained via legal assistance which was later declared illegal. § 56b EU-JZG is the only provision in the scope of transnational criminal proceedings that formulates such a prohibition for certain evidence gained with a European investigation order. § 56b EU-JZG deals with a case where the execution of such an order is declared illegal by the executing state after transferring evidence gained via confiscation of letters, information on data transmission, localisation of technical device, recording of incidental data and monitoring of electronic messages and of persons (§§ 134–143 StPO). Such devices must be destroyed by the Austrian authorities and therefore must not be used in the national trial. Finally, the question arises whether or not the decision of an Austrian authority not to initiate a request is subject to judicial review and, in the latter case, if the Austrian system at least provides judicial protection in the trial phase. According to § 2 StPO, the police and the public prosecutor are obliged in the course of their duties to investigate any initial suspicion of a criminal offence during the pretrial stage. In the main trial, the court must declare the guilt of the defendant. To this end, all these authorities must investigate the truth and clarify all facts that are relevant to the judgment (§ 3 StPO). This also includes the duty to search for all facts that are relevant for the accused person. If it is necessary for these purposes to initiate a request to another country (arrest of an accused person, transfer of prisoners, gathering of evidence), the competent bodies have to initiate such a request. Otherwise, the defendant/concerned person has the right to apply for it (§ 55 StPO). If this application is rejected especially by the court, the later convicting judgment can be challenged under § 281 Sec 1 No 4 StPO ( fair trial; see above). Moreover, it could be a ground for the nullity of an Austrian judgment if the protocol on an interrogation of a witness/accused person is read during the main procedure before the court instead of interrogating him/her again (§ 252 StPO, § 281 Sec 1 No 3 StPO). Such a reading is, reversely, allowed if the witness was summoned, searched via SIS in the EU Member States and third European countries and via issuing a European arrest warrant.31 The abstract decision of the competent body not to initiate a request is not itself subject to judicial review.

31

RIS-Justiz RS0098248.

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2.2.4

N. M. Schallmoser

Concentration of Judicial Review (SIS II)

According to the current legal situation, every person in Austria has the right to request information about several personal data stored in SIS II and to apply for a correction of wrong data or for a deletion of unlawfully stored personal data. The request for information can be addressed to the Supplementary Information Request at the National Entries (SIRENE) office situated at the Ministry of Internal Affairs.32 Within 3 months, the person has to be informed by SIRENE which measures were taken to safeguard his/her rights. The statutory period for all data information is 8 weeks. If the information is not or not completely given within this time, the person seeking information can file a complaint to the Austrian Data Protection Authority (Datenschutzbehörde). The same applies to the insufficient correction or deletion of data in SIS II. Several claims for damages must be asserted before the courts.33 Quite similar rules exist in the Austrian legal system for the protection of data used by EUROPOL. The European Data Protection Supervisor (Europäischer Datenschutzbeauftragter) is responsible for protecting the fundamental rights of individuals with regard to the processing of personal data by EUROPOL. Any person may lodge a complaint to the Supervisor if he/she considers that EUROPOL is infringing the EUROPOL regulation when processing his/her personal data. Additionally, the person may request the national supervisory authority to verify the legality of any transmission of his/her personal data to EUROPOL and the processing of such data by the Member State concerned.34 To sum it up, these rights cannot be enforced before courts.

2.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

According to the current legal system of Austria, foreign authorities have no right to undertake investigative measures as extraterritorial operations on national territory, as far as the gathering of evidence through search and seizure (§§ 109 ff StPO), interrogation (§§ 164 ff StPO) and telecommunication surveillance (§§ 134 ff StPO) is concerned. § 59 Sec 1 ARHG (Admission of foreign bodies and the involved persons during legal assistance) says that carrying out investigations and procedural acts by foreign bodies on the territory of Austria is inadmissible. It only allows the presence of foreign authorities and their participation during the legal assisting process—the attendance of foreign authorities can be granted (discretion) during 32

A form for the request can be found online under https://www.dsb.gv.at/documents/22758/ 112500/Formular_zur_Auskunft_aus_dem_Schengener_Informationssystem_(deutsch_und....pdf/ d2e132c2-97b0-4363-9953-88ce6e5d76a3 (31 March 2020). 33 Information taken from https://www.dsb.gv.at/-/auskunft-uber-daten-des-sis-ii (31 March 2020). 34 Information taken from https://www.dsb.gv.at/Europol (31 March 2020).

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the execution of investigative measures on Austrian territory.35 Consequently, it is, for example, inadmissible for foreign judicial or police authorities to act without official knowledge and without the cooperation of the Austrian authorities in Austria in order to obtain information required for criminal proceedings from persons located in the Austrian territory.36 These traditional rules do not provide a legal remedy against this mere presence. Also, the allowance to join is not subject to a legal remedy. Probably, it is not considered necessary for the person to have legal protection. Different is the provision laid down in § 55k EU-JZG (Assistance to executing a European investigation order) for the cooperation between EU Member States. According to this provision, the presence of foreign bodies during the execution of a European investigation order must be granted if no fundamental procedural principles of Austria are violated. Independent investigations by foreign authorities are always forbidden; such investigations must be executed under Austrian leadership. If, nevertheless, the foreign authorities cause damage, the compensation can be claimed under Austrian law as if an Austrian authority would have caused the damage. Access to national police databases (the most important one is EKIS— Elektronisches Kriminalpolizeiliches Informationssystem, which combines six very important registers or data collections with relevance for the police37) for foreign authorities is not regulated by law in Austria. Consequently, it has to be assumed that an independent access for foreign authorities is not provided by the Austrian legal system. Information about persons from these databases therefore has to be requested via the traditional tools of transnational cooperation and within the EU, especially with a European investigation order.

35 Martetschläger (2019), § 59 ARHG para 1. Of course, bilateral treaties can anchor different regulations: e.g. Austrian High Court, decision of 6 September 2001 – 15 Os 113/01 (15 Os 114/01) (Austria – Germany). 36 See EBRV (Explanatory remarks on the government bill) 4 BlgNR 15. GP 40; to the competent authorities deciding on the presence of foreign persons: Martetschläger (2019), § 59 ARHG para 1. 37 https://www.bmi.gv.at/402/ekis.aspx (31 March 2020).

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2.3

N. M. Schallmoser

Scope of Judicial Protection and Applicable Legal Standards

2.3.1

The General Framework of International Cooperation in Criminal Matters

2.3.1.1

Judicial Protection and Applicable Standards in the Requested State

When deciding upon a foreign request, primarily the grounds for refusing such a request have to be examined in detail, which at the same time formulate the legal standards for the possible scope of judicial review. In matters of cooperation with non-Member States of the EU, such grounds for refusal are formulated in § 2 (ordre public); § 3 (reciprocity); §§ 11–23, 33, 34 (grounds for refusing extradition); § 51 (for refusing general legal assistance, e.g. gathering of evidence); and § 64 (for refusing the execution of a foreign sentence to imprisonment) ARHG. It is a principle of international criminal law that the requested state follows its procedural rules.38 Consequently, in Austrian criminal proceedings, it does not need to be examined whether the requested state was contractually obliged to grant the Austrian request or has fulfilled the necessary formalities for extradition.39 Even unlawfulness in the foreign extradition procedure, e.g., cannot affect criminal prosecution by Austrian courts. They are only limited in their jurisdiction by the principle of speciality.40 This basic rule is, in principle, also applicable in the reverse case, i.e. if Austria is the requested state deciding on a foreign request. Notwithstanding this principle, in some cases, the legal situation in the requesting state is relevant for the Austrian decision on a foreign request. Some examples shall be given: § 11 Sec 1 ARHG, e.g., states that extradition for persecution is only admissible for acts that are punishable by a sentence of more than one-year imprisonment or a preventive measure of this duration under the law of the requesting state. Extradition also has to be refused in cases where according to the law of the requesting state the persecution or execution is already time-barred (§ 18 ARHG). Also, § 19 ARHG explicitly refers to foreign law since extradition is illegal if certain fundamental principles would otherwise be threatened in the requesting state (through execution of their national law, details below and in Sect. 2.3.2.1). In cases of trials in absentia, extradition to execute a foreign sentence of imprisonment is permitted only if there will be a possibility under the foreign law for the convicted person to renew the trial (§ 19a ARHG). Extradition is moreover explicitly forbidden

38 Consequently, e.g. the claim about an interrogation of witnesses in the office of their lawyer in the USA is irrelevant, as this form of interrogation is allowed in the USA (Austrian High Court, decision of 30 October 1997 – 15 Os 18/97). 39 Austrian High Court, decision of 4 August 1994 – 11 Os 108/94; Austrian High Court, decision of 25 July 1995 – 11 Os 85/95; RIS-Justiz RS0087150. 40 Austrian High Court, decision of 25 July 1995 – 11 Os 85/95.

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if the person might face a death penalty under the law of the requesting state with a view to the foreign law (§ 20 ARHG). Furthermore, the extradition must be refused if the defendant/concerned person cannot be punished because of his/her minor age according to the law of the requesting state (“Strafunmündigkeit”, § 21 ARHG). The principle of speciality (§ 23 ARHG) can also be qualified as a limitation to international cooperation, which takes the foreign legal situation/law into account. The enforcement or further enforcement of foreign imprisonment sentences is not possible if the decision of the foreign court has been adopted in a trial infringing the principles of Art 6 ECHR (§ 64 Sec 1 No 1 ARHG). And finally, § 56 Sec 2 ARHG, dealing with the necessary form and content of foreign requests, states that it is necessary for certain investigative measures, according to the StPO, which shall be executed for a foreign state, that the requesting state adds an approval of the foreign court or otherwise a clear statement that the foreign national prerequisites for the investigative measure are completely fulfilled. The law of Austria as the requested state is, as a rule, the relevant applicable standard, although there are some differences to purely domestic proceedings, as will be shown in the following. § 2 ARHG anchors a national ordre public clause, according to which legal assistance is only allowed if the public order or other essential interests of Austria will not be infringed. Most of the grounds for refusing extradition in the ARHG explicitly refer to Austrian law as a relevant standard: § 11 formulates a minimum threat of punishment for extraditable crimes and the principle of double criminality; § 12 forbids extradition of Austrians; § 15 says that extradition has to be refused for acts that are, according to Austrian law, of a military nature or fiscal offences; § 16 forbids extradition in cases of Austrian jurisdiction according to §§ 62 ff StGB; and § 18 declares extradition as illegal in cases of limitation of time and § 21 in cases where the defendant/concerned person is of minor age according to Austrian law. § 33 Sec 3 ARHG says that a request for extradition must also be examined under several constitutional aspects. General forms of mutual legal assistance are, according to § 51 ARHG, inadmissible if there is a lack of double criminality or if the national prerequisites for national investigative measures are not fulfilled (namely those regulated in the eighth main chapter of the StPO: Investigations and taking of evidence) or if the execution of the foreign request would lead to an infringement of national obligations of confidentiality, as laid down in § 76 Sec 2 StPO. The execution of a foreign sentence in Austria presupposes (besides other conditions) that the principle of double criminality is fulfilled, that there is no time limitation for the execution according to Austrian law and that there is no problem of ne bis in idem due to a parallel prosecution in Austria (§ 64 Sec 1 ARHG). For all the different forms of cooperation in criminal matters with non-Member States of the EU, it is possible to refuse legal assistance due to a violation of fundamental rights and for reasons of discrimination of the defendant/concerned person (§ 19 Sec 4, § 51 Sec 1 No 2, § 64 Sec 1 No 1 ARHG; details below in Sect. 2.3.2.1, which are also applicable here). Finally, international law (especially the ECHR), on the one hand, is an applicable legal standard for international cooperation in criminal matters: as already

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mentioned above in Sect. 2.1.1, the ECHR and its additional protocols are qualified as directly applicable constitutional law in Austria. Therefore, its limitations for all kinds of cross-border cooperation in criminal matters must always be taken into consideration. According to the ARHG, on the other hand, there is no provision that refers to Art 19 EU-Charter of Fundamental Rights (protection against extradition), as the scope of the ARHG does not fall under the phrase “implementation of the law of the EU” (§ 51 Sec 1 of the Charter). For the same reason, there is also no provision referring to Art 18 Treaty on the Functioning of the European Union (TFEU). Nonetheless, Art 19 of the Charter seems to be covered by § 20 ARHG (see above in this chapter). The EU directives on the rights of the defendant in criminal proceedings41 have been implemented into the StPO.42 Because of its subsidiary application also to transnational proceedings (§ 9 ARHG, see above Sect. 2.1.2), its principles are also considered within the scope of the ARHG.

2.3.1.2

Judicial Protection and Applicable Standards in the Requesting State

An important question is whether or not the concerned person can challenge the decision of an Austrian authority on a request for foreign legal assistance and, in the latter case, to what extent the concerned person can challenge it, e.g. on the basis of which legal standard. As already described above in Sect. 2.2.3, the abstract decision of an Austrian judicial body to request legal assistance is itself not the subject of a judicial review and therefore cannot be challenged by the defendant/concerned person. If a court or the public prosecutor wants to request for foreign legal assistance, it is a necessary prerequisite that the national conditions for the procedural measure, which the foreign state should take instead of Austria, are fulfilled. If this prerequisite is not met, the defendant/concerned person can raise a legal remedy against this national/internal mistake (e.g. a complaint or an appeal as described above in Sect. 2.1.2). The standard for such a legal remedy against the national/ internal mistake, which leads to an inadmissibility of a request for legal assistance, is always national—Austrian—law. Moreover, as already mentioned above in Sect. 2.1.1, the ECHR and its additional protocols are qualified as directly applicable constitutional law in Austria. Therefore, its limitations for all kinds of investigative or other procedural measures in criminal matters must always be taken into consideration. And finally, the directives on the rights of the defendant in criminal

41

E.g. Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65/1. 42 Federal Law Gazette No I 121/2016.

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proceedings43 are implemented into the StPO.44 As far as these rights of the defendant are concerned, he/she can challenge the national decision that infringes these procedural safeguards, especially per complaint (§§ 87 ff StPO) and appeal (§ 106 StPO). In these cases, a reference to the EU-Charter on Fundamental Rights is possible, too, as such constellations are always “implementation of the law of the EU” (§ 51 Sec 1 of the Charter).

2.3.2

The Framework of Cooperation Within the EU

2.3.2.1

Judicial Protection and Applicable Standards in the Requested State

In the framework of cooperation with other Member States of the EU, the applicable legal standards for deciding upon a foreign request differ. Primarily, the grounds for refusing a foreign request, which at the same time formulate the legal standards for the possible scope of judicial review, are other than in matters of cooperation with non-EU Member States. In matters of cooperation with EU states, such grounds for refusal are formulated in §§ 4–12, 19 (grounds for refusing a surrender); §§ 39, 40 (grounds for refusing the execution of a foreign sentence of imprisonment); §§ 45, 46 Sec 2, 47 (grounds for refusing search and seizure); and § 55a (grounds for refusing European investigation orders) EU-JZG. The EU-JZG sometimes refers to the foreign state’s law for limitations to this cooperation. Some examples shall be given: § 4 Sec 1 EU-JZG, first of all, anchors a minimum punishing threat according to the law of the issuing state as a prerequisite for surrender (so-called Übergabe) to this state. § 4 Sec 2 EU-JZG formulates the principle of double criminality under both the law of the issuing and the executing states for the execution of European arrest warrants. Exceptions from the principle of double criminality can be found in Sec 3 for a list of certain offences with a certain gravity. Similar rules are laid down in § 45 Sec 3 EU-JZG for the execution of foreign decisions on search and seizure and in § 55a Sec 2 EU-JZG for European investigation orders. The classification of an offence as one of those in the list depends on the law of the issuing state. § 19 Sec 3 EU-JZG allows, nevertheless, a very restrictive review of the classification of an offence as one in the catalogue. § 19 Sec 4 EU-JZG anchors a fundamental rights clause, which enables Austria to take threats of fundamental rights violations in the issuing state into consideration (details below). A similar clause is also formulated in § 40 No 12 for the execution of foreign

43

E.g. Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65/1. 44 Federal Law Gazette No I 121/2016.

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imprisonment sentences45 and in § 55a Sec 1 No 7 for the execution of a European investigation order (see below). The execution of a sentence of imprisonment is also forbidden in cases of amnesty and pardon under the law of the issuing state (§ 40 No 7 EU-JZG) and, furthermore, in cases of trials in absentia if the convicted person has no chance to achieve a renewal of this proceeding according to the issuing state’s legal situation (§ 40 No 9 EU-JZG). Other arguments can only concern the form of the foreign request. Such formal errors of the foreign request can be usually remedied by setting a new deadline and demanding further information or a correction of the formal error (§ 35 Sec 2, § 66 ARHG; § 19 Sec 2, § 41a Secs 2–4, § 45 Sec 4, § 55d Sec 2–8 EU-JZG). Quite a lot of provisions that provide restrictions on transnational cooperation in criminal matters in the EU-JZG explicitly refer to purely national—Austrian—law. Some examples are as follows: first of all, the principle of double criminality is formulated as a condition for every surrender in § 4 Secs 1 and 2 EU-JZG (regardless of substantial exceptions in Sec 3 for “catalogue offences”). Lots of restrictions on the surrender of Austrians are laid down in § 5 EU-JZG; they all refer to different provisions of Austrian law (citizenship, Austrian jurisdiction according to §§ 62 ff StGB etc.). When the offence was committed in Austria or if other reference points to Austrian jurisdiction as laid down in § 62 ff StGB exist, the surrender must be refused (§ 6 EU-JZG), as well as in cases of different forms of ne bis in idem due to different Austrian decisions in the same case (§ 7 EU-JZG). Further grounds for refusal are cases of minor age under Austrian law (§ 9 EU-JZG) and of amnesty or limitation of time, each examined under Austrian law (§ 10 EU-JZG). § 11 EU-JZG formulates restrictions on surrender in cases of trials in absentia, quite similar to § 19a ARHG (see above Sect. 2.3.1.1). In the framework of the execution of prison sentences, a lack of double criminality is stated as a ground for refusing execution in § 40 No 1 EU-JZG, as well as the commitment of the offence in Austria as defined in §§ 62 ff StGB (§ 40 No 3 EU-JZG), minor age according to Austrian law (No 5), time limitation under Austrian law (No 6), amnesty or pardon (No 7) under Austrian law and immunity under national law (No 8). Another ground for refusal of the execution of such a sentence is the impossibility of an adequate adaption of the sentence under Austrian law (No 10). Quite similar grounds for refusal are stated for the execution of foreign decisions on search and seizure (lack of double criminality (§ 45 Secs 1 and 2 EU-JZG), infringement of fundamental procedural principles as laid down in the first main chapter of the StPO (§ 46 Sec 2 EU-JZG) and the existence of privileges or immunities under national law (§ 47 Secs 1 No 2 EU-JZG)). The situation is also quite similar when refusing a European investigation order (lack of double criminality (§ 55a Sec 1 No 1 EU-JZG), commitment of the offence in Austria as defined in §§ 62 ff StGB (No 2) and immunity under Austrian law

RIS-Justiz RS0122320: The Austrian “Exequaturverfahren” itself does not fall within the scope of Art 6 ECHR.

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(No 5)). Furthermore, there is a prohibition on executing a European investigation order if under Austrian law the investigation measure is only allowed for specific punishable acts under specific requirements which are not fulfilled by those offences underlying the order (No 4, exceptions in § 55b Sec 2 EU-JZG). Another restriction is provided in cases in which national prohibitions on interrogation would be circumvented through the execution of the order, as laid down in §§ 155 Sec 1 No 1 and 157 Sec 1 Nos 2–5 StPO (No 8). For cases of surveillance of telecommunication, the execution of a foreign order is finally forbidden if this investigative measure would not be allowed under the requirements of the StPO in a similar national case (No 13). For all mentioned different forms of cooperation in criminal matters with Member States of the EU, it is possible to refuse mutual legal assistance for reasons of violation of fundamental rights and for reasons of discrimination of the defendant/ concerned person (§ 19 Sec 4, § 40 No 12, § 55a Sec 1 No 7 EU-JZG). The limitations for this ground of refusal are quite strict: the defendant/concerned person has to raise significant concerns on the lawfulness of the request. For example, in cases of violation of “ne bis in idem” (especially Art 54 Schengener Durchführungsübereinkommen (SDÜ)), the person must bring sufficient evidence, whilst the court is not obliged to take investigative measures to clarify the circumstances (especially no obligation to collect information according to Art 57 SDÜ). Sufficient evidence is conversely delivered if the defendant/concerned person submits a letter of a foreign public prosecutor, in which he/she was informed about the final discontinuation (Einstellung) of the foreign procedure in the same case (idem).46 Also, threatening violations of Art 3 or 6 ECHR in the requesting state can build a ground for refusing mutual legal assistance according to the different fundamental rights clauses: surrender, for example, can lead to a violation of the ECHR through Austria if there is valid evidence for believing that the person concerned might face a risk of being treated in conflict with Art 3 ECHR in the requesting state. The seriousness of the imminent threat, the concrete behaviour of the foreign state and the specific circumstances play a role in arguing whether fundamental human rights could be violated in the requesting state. Such evidence is only dispensable if the requesting state has a permanent practice of extensive and systematic human rights abuses. The guarantees of Art 6 ECHR can play a role for the decision on granting or refusing a surrender if the defendant/concerned person proves that he/she is threatened by a “flagrant denial of justice” in the requesting state.47 Finally, the mentioned fundamental rights clauses all refer to Art 6 of the EU treaty for the relevant human rights standard. As the ECHR and its protocols are

46 Austrian High Court, decision of 28 January 2014 – 14 Os 133/13k ¼ Evidenzblatt 2014/70, 466; Austrian High Court, decision of 17 September 2013 – 11 Os 73/13i ¼ Evidenzblatt 2014/6, 35 ¼ Juristische Blätter 2014, 201. 47 E.g. Austrian High Court, decision of 28 January 2016 – 12 Os 154/15m ¼ Evidenzblatt 2016/69, 465; RIS-Justiz RS0123201, RS0123229 (Art 3 ECHR); RIS-Justiz RS0123200 (Art 6 ECHR).

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constitutional law in Austria, the rights they anchor have to be taken into account too in each case of mutual legal assistance for other Member States of the EU. At the same time, other provisions in the EU-JZG do not explicitly refer to EU law: Art 19 of the Charter of Fundamental Rights, e.g., is not mentioned in the EU-JZG. Nevertheless, it is covered by the mentioned fundamental rights clauses in the EU-JZG (especially § 19 EU-JZG). Article 18 TFEU is implemented in § 5a EU-JZG for the equal status of permanent residents and Austrians. The directives on the rights of the defendant are, on the one hand, implemented in the StPO and therefore also relevant for the scope of the EU-JZG due to the subsidiary applicability (§ 1 Sec 2 EU-JZG and § 9 ARHG; I.2.). Some rights of the defendant/ concerned person are even laid down explicitly in the EU-JZG: especially § 16a EU-JZG has to be mentioned in this context, which obliges the competent bodies to give a comprehensive legal instruction after the person who shall be surrendered is arrested (see, for more information on § 16a EU-JZG, also below Sects. 2.6.1 and 2.6.2).

2.3.2.2

Judicial Protection and Applicable Standards in the Requesting State

If Austria requests legal assistance within the framework of cooperation with Member States of the EU, the request can be challenged by the person concerned. The standard for such a legal remedy against the national/internal mistake which leads to an inadmissibility of a request for legal assistance is, in principle, national— Austrian—law (see already above Sect. 2.2.3). Of course, international legal standards have an enormous influence on the Austrian legal standard in such cases: first of all, as already mentioned above in Sect. 2.1.1, the ECHR and its additional protocols are qualified as directly applicable constitutional law in Austria. Therefore, its limitations for all kinds of investigative or other procedural measures in criminal matters must always be taken into consideration. And, second, EU law plays an important role in these matters, as the cross-border cooperation in criminal matters between the Member States of the EU is always to be qualified as “implementation of the law of the EU” (§ 51 Sec 1 of the Charter).

2.4

Pleading Requirements

Looking at the pleading requirements for both “systems”—according to ARHG and EU-JZG— first of all, differentiation is necessary: in some constellations, in which a foreign state asks Austria for legal assistance, the current legal situation provides a trial in Austria, in which the defendant/concerned person already takes part (e.g. § 31 Sec 2 ARHG, § 29 Sec 3 ARHG) before the national decision is made by the competent authority. In other cases, the competent body is at least obliged to grant a legal hearing to the person (e.g. § 41a Sec 8 EU-JZG). In these hearings, the

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defendant/concerned person can invoke a reason for refusal. In all constellations, the person has the right to a legal remedy, either against the final decision or its execution, as already described above in Sect. 2.1.2. The following explanations focus on the legal remedies “complaint”, as laid down in §§ 87 ff StPO, and “appeal”, according to § 106 StPO.48 Grounds for refusal have to be, in principle, discovered and considered by the competent authority to decide on the foreign request (§ 2 StPO—“Amtswegigkeit”). Consequently, there are no rules on the burden of proof. Some exceptions exist: in cases where a review of suspicion is possible, the court has to initiate such a review if there are “significant concerns” on the existence of a sufficient suspicion (especially in cases of extradition/surrender: § 33 Sec 2 ARHG, § 19 Sec 1 EU-JZG). The defendant/concerned person has to raise such concerns by submitting evidence that immediately invalidates the suspicion. As mentioned above in Sect. 2.3.2.1, the issuing state in the scope of the EU-JZG often has the opportunity to avoid an examination of whether the principle of double criminality is violated by classifying the offence underlying the request to be one of a certain catalogue of crimes (e.g. § 4 Sec 3 EU-JZG for cases of surrender). If the defendant/concerned person wants to challenge the classification of an offence to be one in the catalogue, it is necessary to “raise justified/well-founded objections” because the court only has to review this classification automatically in cases of obvious incorrectness (§ 19 Sec 3 EU-JZG). Finally, the fundamental rights clause in § 19 Sec 4 EU-JZG as a ground for refusing the surrender of a person to another Member State of the EU has, as a sole exception, only to be picked up by the court if the defendant/concerned person raises objections (above Sect. 2.3.2.1). The defendant/concerned person can invoke a reason for refusal either in the oral hearing, if scheduled, or in the legal remedy. If the defendant/concerned person shall be taken into custody or is in custody—especially in cases of foreign requests for extradition/surrender—he/she must always be represented by a lawyer (§ 29 Sec 4 ARHG and § 61 Sec 1 No 1 StPO). In these cases, the lawyer invokes the reasons for refusal. The same applies in all the other constellations as the person has the right to authorise a lawyer at any time (§ 58 Sec 1 StPO). Regarding the above considerations, there are no differences between arguments based on the law of the requesting state, the law of the requested state, international law and EU law, at least according to the current legal situation in Austria. Furthermore, there are also no differences between various types of cooperation (extradition/surrender, enforcement of prison sentences or gathering of evidence) in the written law. It is quite unclear how the jurisdiction works in practice in these cases as there are hardly any decisions of the competent courts (mainly single judge at the Regional Court, Higher Regional Court) available.

48 They—on the contrary—do not explicitly involve especially complaints under the GRBG, trials on the renewal of proceedings as formulated in § 363a StPO or—as they are, of course, not relevant for the present constellations—the legal remedies against final national judgements (especially complaint of nullity in § 281 StPO).

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2.5 2.5.1

N. M. Schallmoser

Guarantees Given by the Requesting State (Zusicherung) Legal Nature, Requirements and Effects

The possibility to eliminate concerns about possible risks of a violation of human rights with special guarantees (in Austria: conditions—“Bedingung”, § 4 ARHG) is not anchored as a general principle in the ARHG. § 4 ARHG conversely deals with the opposite constellation: it formulates an obligation of the Austrian authorities to fulfil all conditions that were given as a prerequisite for legal assistance by another state. For further consideration, again, a differentiation between the legal situation in the ARHG on the one hand and the EU-JZG on the other hand is necessary. In the legal framework for the ARHG that is relevant here, there are only a few provisions that explicitly take into account guarantees of the requesting state (§ 19a Sec 2 ARHG, § 38 Sec 1 and § 54 Sec 1 ARHG). For example, § 19a Sec 2 ARHG requires the guarantee of the requesting state that the convicted person will have the opportunity to fully renew his or her trial after his/her extradition in case the trial was held in absentia. A guarantee can be considered as sufficient if it shows that there will be an opportunity for the convicted person to repeat the proceeding in the foreign state if a complete instruction on legal remedies (Rechtsmittelbelehrung) is provided, including any existing deadlines, and the availability of a not-too-complicated legal remedy is guaranteed which does not require any special burden of proof and leads to a repeated proceeding. The person must have the comprehensive right of defence in the renewed procedure so that the whole case can be re-examined, including all new facts and evidence.49 The background is probably Art 6 ECHR (fair trial). The provision is, moreover, quite new: it was adopted in 2014.50 § 38 Sec 1 ARHG deals with the temporary surrender of a person, as well as § 54 Sec 1 ARHG. Both surrenders are possible, especially if the requesting states guarantee the person’s return. The background of these provisions seems to be of a political nature. In the scope of the EU-JZG, which is relevant here, § 5 Sec 5 EU-JZG allows the surrender of Austrians for prosecution only under the condition that the person is brought back to Austria for the execution of a sentence. § 26 Sec 1 EU-JZG additionally enables the competent authorities to temporarily surrender a person if the issuing state guarantees his/her return in a contract (Sec 3). A similar provision is laid down in § 55g EU-JZG for European investigation orders. § 40 No 11 EU-JZG

49 See the enactment of the Ministry of Justice from 25 February 2014, BMJ-S 303.005/0001-IV 4/2014; Göth-Flemmich (2016a), § 19a ARHG para 9: If, vice versa, the Court declares an extradition as inadmissible because of an insufficient guarantee, but without examining the lawfulness of the trial in absentia, the concerned person is violated in his/her right to a fair trial (Art 6 ECHR; Austrian High Court, decision of 5 November 2013 – 14 Os 145/13z ¼ Evidenzblatt 2014/27, 179). 50 Federal Law Gazette No I 107/2014.

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forbids the execution of a foreign prison sentence if the foreign state does not give a guarantee to ensure the principle of speciality. § 55l Sec 3 EU-JZG fixes the obligation of the state issuing a European investigation order for the surveillance of telecommunication to accept the condition not to use the results of the surveillance in another proceeding without the foregoing approval of Austria. The background of this provision is—besides others—probably Art 8 ECHR. All in all, most of the guarantees do not have a fundamental rights background. They rather seem to serve as political safeguards for Austria as the requested/ executing state. An argument for this presumption might be the fact that there is no opportunity for the defendant/concerned person to exercise a legal remedy if such conditions are not fulfilled by the foreign state. The only exception is the possibility to demand compensation if foreign authorities, in the framework of § 55k Sec 3 EU-JZG, cause damages (§ 55k Sec 5). If a sufficient guarantee is given by the foreign state, the Austrian authorities are obliged to accept it since the above-mentioned provisions are not formulated to be norms of discretion. Nevertheless, of course, they have certain discretion in assessing such a guarantee as “sufficient”. Unfortunately, according to the current legal situation, it is not regulated under which conditions a guarantee can remove an obstacle to international cooperation. Moreover, according to law, Austria is not required to monitor the case after the request has been granted.

2.5.2

Legal Remedies Against the Violation of a Guarantee in the Requesting State

The guarantee that Austria gives to the foreign state, in principle, does not constitute an individual right of the concerned person to the fulfilment of the guarantee. Nevertheless, if the violation of the guarantee leads to a violation of any individual right (e.g. detention is too long), the defendant/concerned person has legal protection, as described above in Sect. 2.1.2. An exception is the principle of speciality, which is qualified procedurally as an impediment of prosecution: breaching the commitment of Austria that the principle of speciality will be respected during a criminal procedure causes the nullity of the judgment, according to § 281 Sec 1 No 9 StPO, because an acquittal has to be made for the acts excluded from the speciality.51

51 E.g. Austrian High Court, decision of 16 December 2008 – 14 Os 148/08h; Austrian High Court, decision of 19 February 2009 – 12 Os 152/08g ¼ Juristische Blätter 2013, 743; Austrian High Court, decision of 9 October 2012 – 11 Os 106/12s; Göth-Flemmich (2019), § 70 ARHG para 15; RIS-Justiz RS0098426, RS0092340.

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2.5.3

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Legal Remedies Against the Violation of a Guarantee in the Requested State

The current legal situation in Austria does not provide a possibility for the person concerned to file a complaint against the authority granting the request if the guarantee was violated by the foreign state. There is also no possibility for the individual to require the competent authority to take action against the requesting state. At least, in the case of § 55k Sec 3 EU-JZG, as mentioned above in Sect. 2.5.1, the person concerned can claim damages from Austria.

2.6 2.6.1

Effectiveness of Judicial Review General Requirements (Access to Information and Suspensory Effect of the Remedy)

Looking at the effectiveness of judicial review, an important question arising is whether Austria as the requested state is obliged to inform the person concerned of the request before taking a decision on whether or not to grant the request. The answer depends once again on the tool of legal assistance that shall be granted and on the legal framework that is applicable—ARHG or EU-JZG. As to the ARHG, in cases of extradition in general as well as before the imposition of custody during an extradition procedure in particular, information is provided before the decision on the foreign request itself or on the admissibility of the custody is taken (§ 31 No 1, § 29 Sec 3 ARHG). In cases in which an arrested person shall be transferred to a foreign state for certain investigative measures (as a tool of mutual legal assistance), the information is also provided before the decision (§ 54 Sec 1 ARHG). For other investigative measures, there is no information provided before the decision on the request (e.g. before search and seizure), at least according to the ARHG. Such information could be provided nevertheless by the StPO, which is subsidiarily applicable (see above in Sect. 2.1.2). For example, telecommunication surveillance is, in certain cases, only allowed if the concerned person gives his/her approval (§ 135 Sec 3 No 2 StPO). In these constellations, corresponding information, of course, has to be given before the surveillance starts. If a foreign prison sentence shall be executed in Austria, according to § 64 Sec 2 ARHG, a prerequisite is—among others—the approval of the convicted person. If Austria is the requesting/issuing state, there is no previous information provided for the person concerned. In case he/she is in custody and shall now be transferred to a foreign country for certain investigative measures, it is explicitly provided that his/her approval is not necessary (e.g. § 73 Sec 2 ARHG). For access to personal information in international databases, see above in Sect. 2.2.5. In the scope of the EU-JZG, the situation is different: § 16a anchors an obligation of the competent bodies to immediately instruct a person who was arrested on the

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basis of a European arrest warrant about his/her rights. The person must be informed about his/her rights in written form and in an understandable language (§ 171 Sec 4 StPO). The rights include information on the content of the European arrest warrant and a written translation of it before the decision on the request is made. The execution of a foreign prison sentence is, in certain cases, only possible with the approval of the convicted person (§ 39 Sec 1 Nos 2 and 3 EU-JZG), sometimes also without such a consent (§ 39 Sec 1 No 1 EU-JZG). On the occasion of an interrogation, there is no information provided before; during the interrogation, of course, the defendant/concerned person can nevertheless remain silent. If the interrogation shall be carried out by the issuing state via technical device for word and image transfer or telephone conference, according to § 55a Sec 1 No 11 EU-JZG, a previous approval of the defendant is necessary; otherwise, the European investigation order must be rejected. In cases of such an interrogation via technical devices, the Austrian authorities must also provide instruction on the rights of the defendant, in the issuing state as well in the executing state (§ 55h Sec 1 EU-JZG). The right of the defendant/concerned person being arrested in Austria and who shall now be transferred to another country for certain investigative measures is also anchored in the EU-JZG: according to § 55g, the person has to be heard before the decision. No previous information is installed in cases of search and seizure for a foreign state and, in principle, for telecommunication surveillance (exception as described above: § 135 StPO). The right of access to the file is laid down in § 51 StPO, which is also applicable to several transnational proceedings (StPO is subsidiarily applicable; Sect. 2.1.2). Therefore, to sum up, the person has access to the file already before lodging a legal remedy against a decision to legal assistance. The extent to which help with the translation is granted during the procedure is purely oriented to national criminal proceedings and therefore to § 56 StPO. Another important question is whether the remedy has a suspensory effect if Austria is the requested state, meaning an effect that leads to a stop of the execution of the request or the transfer of information until an Austrian court has decided on the remedy. The following explanations answering this question focus on the legal remedy “complaint” according to §§ 87 ff StPO (and, therefore, especially do not involve “appeals” as anchored in § 106 StPO, complaints based on the GRBG and the renewal of procedure as laid down in § 363a StPO52). Whether or not the complaint against the court’s decision to grant or not to grant legal assistance to a foreign state has a suspensory effect cannot be answered uniformly for all constellations of transnational criminal proceedings. In some cases, a complaint has a suspensory effect according to law: the complaint against the decision to extradite/surrender a person to a foreign country always leads to a

52

A suspensory effect of these complaints can be suggested by the Austrian High Court in certain cases (§ 362 Sec 5 StPO, RIS-Justiz RS0125705), but the concerned person has no right to appeal for it.

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stop of the execution of the request (§ 31 Sec 6 ARHG).53 Also, the complaint against the decision to execute a foreign prison sentence of another EU Member State in Austria is equipped with a suspensory effect (§§ 41c No 1, 41b Sec 5 EU-JZG54). In other cases, the raising of a complaint does not stop the continuance of the legal assistance; one example is an appeal against the decision of the public prosecutor to execute a European investigation order according to § 55e No 4 EU-JZG (§ 55f Sec 2 EU-JZG: no suspensory effect e contrario, § 55j No 8 EU-JZG; nevertheless, the issuing state is informed about the legal remedy). In other constellations, the defendant/concerned person has the right to apply or at least the possibility to (informally) ask for a suspensory effect of the legal remedy; also, the suspension can be declared by the court autonomously if necessary: according to § 55l Sec 4 EU-JZG, the competent court must order a suspensory effect of a complaint against the execution of a European investigation order either if the defendant/concerned person applies for it or automatically, unless the urgency of the procedure in the issuing state or the maintenance of subjective rights in this proceeding outweigh his or her interest. In either case, the transfer of the results of the investigative measure must be suspended if this would otherwise result in serious and irreparable damage to the rights of the defendant/concerned person. In the scope of the ARHG, decisions on granting or refusing mutual legal assistance are partially in the competence of the Ministry of Justice (see above Sect. 2.1.2). It is possible to appeal to the Austrian Administrative High Court against these decisions. This court can order a suspensory effect of the complaint if necessary; the defendant/concerned person has, nevertheless, no right to apply for it but can only ask for/suggest the suspension, e.g., of extradition.55 Whether or not the challenging of a foreign request in the foreign legal system has a suspensory effect on cooperation depends purely on foreign law. Consequently, Austrian law does not provide any rules for these constellations. If the court finds the international cooperation to be inadmissible before it is executed, first of all, legal assistance will not be granted. For cases of unlawful detention, it is possible to claim damages according to the Austrian Criminal Compensation Law (Strafrechtliches Entschädigungsgesetz (StEG)56). For example if a person is put in detention without sufficient suspicion or although the minimum threat of punishment is not reached (e.g. § 4 Secs 1 and 2 EU-JZG), the

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The decision to impose or continue the detention during the extradition/surrender procedure can also be challenged by a complaint; this complaint has no suspensory effect (§ 1 Sec 2 EU-JZG in conjunction with § 9 Sec 1 ARHG and § 87 Sec 3 StPO; Hinterhofer [2019a], § 18 EU-JZG para 28 f; Göth-Flemmich [2018a], § 29 ARHG para 17). 54 For details Wirth and Hinterhofer (2013b), § 41c EU-JZG para 7 f. 55 Administrative High Court, decision of 5 February 2008 – AW 2008/06/0004; 13 June 2002 – 2002/06/0073; Göth-Flemmich (2018d), § 36 ARHG para 6. 56 Federal Law Gazette No I 125/2004 in the current version.

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imprisonment is unlawful and leads to a claim for compensation.57 The detention is moreover unlawful in the meaning of the StEG if one of the grounds to refuse a surrender anchored in §§ 5 ff EU-JZG is raised.58

2.6.2

Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

Of course, the traditional model of judicial review in the mutual legal assistance framework causes certain hardships for the individual, who has to apply for judicial review in both the requesting and the requested states. Nevertheless, Austrian law does not, in principle, provide help in finding a lawyer in the foreign state. One exception is within the framework of the European arrest warrant. According to § 16a Sec 1 No 5 EU-JZG, the concerned person has the right to be represented in the issuing state by a lawyer, whose job is to support the domestic defence lawyer with information and advice. If the individual wants such support, the public prosecutor must notify the issuing judicial authority immediately about this wish if the person is not yet represented by a defence lawyer. This provision aims that the issuing state then supports the defendant/concerned person in contacting a lawyer.59 And, according to § 56 Sec 2 StPO, which is applicable too for transnational proceedings, if there is no special provision either in the ARHG or the EU-JZG provided, the defendant/concerned person has the right to obtain professional assistance in translating (Dolmetschleistungen) a legal remedy in Austria too.60 Other forms of procedural support are not available.61

57 For § 29 ARHG: Austrian High Court, decision of 27 May 1993 – 12 Os 64/93 ¼ Evidenzblatt 1993/197, 814; Göth-Flemmich (2018a), § 29 ARHG para 4; Hinterhofer (2019a), § 18 EU-JZG para 33. 58 Hinterhofer (2019a), § 18 EU-JZG para 33; for cases of detention not in accordance with § 41 EU-JZG: Wirth and Hinterhofer (2013a), § 41 EU-JZG para 14. 59 Schallmoser (2019), § 16a EU-JZG para 13/3; and EBRV (Explanatory remarks on the government bill) StPRÄG II 2016, 17. 60 See also Court of Justice of the European Union (CJEU), judgment of 12 December 2017, Case C-278/16 (Sleutjes). 61 According to Austrian jurisdiction there is especially no obligation of Austrian authorities to automatically deliver the extradition documents to the defendant/concerned person; Austrian High Court, decision of 23 August 2018 – 15 Os 112/18m referring to § 29 Sec 3 ARHG in conjunction with § 31 Sec 1 ARHG and § 213 Sec 1 StPO. If one continues this consideration, it can be assumed that e.g. also a support in delivering the legal remedy to the requesting/issuing state is not provided.

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Ineffectiveness of Ex Post Facto Judicial Review?

A certain ineffectiveness of ex post facto judicial review could result from the fact that a legal remedy does not have a suspensory effect. Fortunately, as most of the legal remedies that are raised by the defendant/concerned person most probably have a suspensory effect (above Sect. 2.6.1), the problems do not have a high practical relevance according to Austrian law. If the investigative measure (e.g. telecommunication surveillance, search and seizure) is executed without providing information to the defendant/concerned person beforehand, according to Austrian law, he/she has to obtain full information after the execution of the measure (e.g. § 138 Sec 5 StPO for surveillances, § 111 Sec 4 StPO for searches). This information is then the basis for a legal remedy against the investigative measure (internal dimension). Another important question in these constellations is whether the transmitted information can still be used in criminal proceedings as evidence, as it could happen that the request has already been executed before the Court of Appeal holds the execution inadmissible. As already mentioned above in Sect. 2.2.3, according to Austrian law, the rule in criminal proceedings is that a prohibition to use the evidence in the trial does not automatically follow from a violation of a provision on how to gather evidence in the preliminary proceedings. Instead, there must be a specific provision anchoring such a prohibition. These considerations apply mutatis mutandis here. Whether or not such a prohibition against using evidence exists in cases in which Austria has requested cooperation and is later on informed that the granting of legal assistance or the execution was declared illegal by the courts depends on the existence of such a special rule. As far as can be seen, there is only one such norm in the specific area of cooperation in transnational criminal proceedings: § 56b EU-JZG explicitly provides that already submitted results obtained by a preliminary investigation after the fifth and sixth sections of the eighth main section of the StPO (§§ 134–143) have to be destroyed if the enforcement of the European investigation order or the implementation of the measure is subsequently declared inadmissible in the executing state. §§ 134–143 StPO deal with the confiscation of letters, information about data of message transmission, localisation of a technical device, storage of data and monitoring of messages/contents via telecommunications and persons.

References Göth-Flemmich B (2016a) § 19a ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Göth-Flemmich B (2016b) Vor §§ 26-41 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Göth-Flemmich B (2018a) § 29 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna

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Göth-Flemmich B (2018b) § 31 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Göth-Flemmich B (2018c) § 33 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Göth-Flemmich B (2018d) § 36 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Göth-Flemmich B (2019) § 70 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Hinterhofer H (2019a) § 18 EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Hinterhofer H (2019b) § 21 EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Martetschläger J (2019) § 59 ARHG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Mayerhofer C (2015) § 33 ARHG. In: Mayerhofer C, Salzmann H (eds) Nebenstrafrecht – Das österreichische Strafrecht. Dritter Teil Band I, 6th edn. Verlag Österreich, Vienna Schallmoser N (2019) § 16a EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Wirth B, Hinterhofer H (2013a) § 41 EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Wirth B, Hinterhofer H (2013b) § 41c EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna Wirth B, Hinterhofer H (2015) § 46 EU-JZG. In: Höpfel F, Ratz E (eds) Wiener Kommentar zum StGB, 2nd edn. Manz, Vienna

Nina Marlene Schallmoser Assistant Professor of Criminal Law and Criminal Procedure Law, University of Salzburg, Austria.

Chapter 3

Country Report “France” Juliette Lelieur

3.1 3.1.1

Overview Judicial Protection in the Criminal Justice System

Understanding “judicial protection” as the right to an effective remedy in the sense of Art. 13 of the European Convention on Human Rights (ECHR) rather than as a mere guarantee that deprivation of liberty shall be decided by or under the effective control of the judicial authority1 makes it clear that a poor textual recognition is given to judicial protection in the French legal system. The Constitution does not literally recognise the right to an effective remedy. Neither does the preliminary article of the Code of Penal Procedure (CPP), which is the reference norm providing general legal guarantees in criminal procedural law. Hence, until 2013, only Art. 13 ECHR was applicable in France as the overall guarantee of an effective remedy of a person whose rights have been violated before a national authority.

Article 66 of the Constitution: “No one shall be arbitrarily detained. The Judicial Authority, guardian of the freedom of the individual, shall ensure compliance with this principle in the conditions laid down by statute”. Preliminary article of CPP, section III, paragraph 4: “The coercive measures to which a suspected or prosecuted person may be subjected are taken by or under the effective control of judicial authority. They should be strictly limited to the needs of the process, proportionate to the gravity of the offence charged and not such as to infringe human dignity”. Since Law Nb. 2019/222 of 23 March 2019, Section III includes paragraph 6: “During the criminal proceedings, measures intruding into individual privacy are taken by or under the effective control of judicial authority only if, considering the circumstances of the case, they are necessary for the determination of the truth and proportionate to the gravity of the offence.

1

J. Lelieur (*) University of Strasbourg, Strasbourg, France © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_3

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However, precisely in a case of transnational criminal cooperation between Member States of the European Union, the French Constitutional Council recognised the “right to an effective remedy before a court” as a constitutional right2 in 2013. It did so after having asked the European Court of Justice for a preliminary ruling on the interpretation of Framework Decision 2002/584 on the European arrest warrant. The key question was whether it would contradict EU law—especially the principle of mutual recognition—to oblige the national legislator to provide a remedy against the decision by the judicial authority of the requested Member State to execute a European arrest warrant. In the silence of the Framework Decision concerning judicial protection, the European Court of Justice recognised the possibility for Member States to provide such a remedy.3 The French Constitutional Council was then free to grant constitutional value to the right to an effective remedy before a court. The Constitutional Council based the right to an effective remedy on a very general constitutional provision, Art. 16 of the Declaration of Human and Civic Rights of 26 August 1789,4 which reads: “Any society in which no provision is made for guaranteeing rights or for the separation of powers has no constitution.” It ruled that, according to this provision, “there must not be a substantial restriction to the right of individuals to lodge an effective remedy before a court”. It concluded that Art. 695-46 § 4 of the CPP, providing that the French investigating chamber (chambre de l'instruction), which declares “without remedy” the execution of a European arrest warrant issued by the judicial authorities of another Member State, violates the right to an effective remedy before a court. It ruled the wordings “without remedy” to be unconstitutional. Soon after this decision, Art. 695-46 § 4 CPP was amended by the legislator. It now provides a remedy against the decision of the investigative chamber before the criminal chamber of the Court of Cassation.

3.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

3.1.2.1

Legal Framework

Judicial cooperation with other Member States in criminal matters is mostly regulated in the fourth book of the CPP, dedicated to “special proceedings”, more precisely in title X of this book, concerning “international judicial cooperation”. There is a distinction made between cooperation with states that do not belong to the Decision nb. 2013-314 QPC of 14 June 2013, Jeremy F., obs. H. Labayle, R. Mehdi, “Le droit au juge et le mandat d'arrêt européen: lectures convergentes de la Cour de justice de l'Union européenne et du Conseil constitutionnel”, RFDA 2013, p. 691; obs. J. Lelieur, “Mandat d'arrêt européen et droit au recours : la CJUE tire la protection du justiciable vers le bas, le Conseil constitutionnel sort la tête haute”, AJ pénal 2014, p. 44. 3 European Court of Justice (CJEU), judgment of 30 May 2013, Case C-168/13 -PPU (Jeremy F). 4 The Declaration of 26 August 1789 belongs to the so-called “constitutional bloc”. 2

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European Union, provided in Art. 694 to 694-13 CPP in case no international bilateral or multilateral treaty provides primary rules, and cooperation with Member States of the European Union, resulting from the implementation of various framework decisions and directives adopted by the European Union and settled in Arts. 694-14 to 695-10 CPP. These last provisions include the implementation of Directive 2014/41 of 3 April 2014 on the European investigation order (EIO), set up in Art. 694-15 to 694-50 CPP. Moreover, special provisions apply to extradition and the European arrest warrant. Here the code first provides a legal framework for cooperation with EU Member States (Art. 695-11 to 695-58 CPP) and then goes further to extradition (Art. 696-1 to 696-47). It must be noted that French rules on extradition apply if no international treaty has been adopted between France and the other country concerned, or secondarily to rules of international treaties to which France is bound (Art. 696 CPP). The provisions on the transnational surrender of persons are by far the most detailed ones among the various rules concerning cooperation with all countries. Especially, the procedural part builds a comprehensive legal system, and also the material conditions for extradition are strictly determined, which is not the case for the other instruments of transnational proceedings. Finally, special provisions concerning the enforcement of prison sentences between EU Member States are to be found in the fifth book of the code, dedicated to the execution of sanctions. Whereas no French legal provision especially deals with the enforcement of prison sentences taken by third countries to the European Union, except if an international treaty like the European Convention on the Transfer of Sentenced Persons of 21 March 1983 is applicable in relation to such a country (in this case, Art. 728-2 to 728-9 CPP applies), the provisions of Framework Decision 2008/909 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty are implemented in Art. 728-10 to 728-76 CPP.

3.1.2.2 3.1.2.2.1

Competent Authorities to Grant Cooperation General Rules

In all cases in which a foreign request for cooperation in criminal matters is sent to France, at least one French judicial authority will be involved in executing it. However, if the request emanates from a non-EU Member State, governmental authorities also have a role to play. As a general rule, except for extradition requests, requests submitted by foreign authorities must be transmitted to the French judicial authorities via the diplomatic channel (Art. 694 §§ 1, 2 CPP). Thus, the French Ministry of Foreign Affairs may stop them if it considers them to infringe the diplomatic interests of the country. As an exception, foreign requests are allowed to be sent directly to the competent French judicial authorities in case of emergency, provided that the foreign government has sent a notification via the diplomatic channel (Art. 694 § 2 CPP). Conversely, the executed request may be sent back to

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the foreign authorities in the same manner (Art. 694 §§ 1, 2 CPP). Also concerning extradition, the foreign authority must send its request to the French Ministry of Foreign Affairs (Art. 696-8 CPP). This ministry operates its diplomatic checks before it transfers the request to the Ministry of Justice. There, the BEPI (Bureau de l'entraide pénale internationale) verifies “the regularity of the request” before it forwards the request to the competent general prosecutor5 (Art. 696-9 CPP). Moreover, the final decision to grant extradition is taken by the Prime Minister by means of a decree, taken on the advice of the Minister of Justice (Art. 696-18 CPP). As it will be explained later, the granting of extradition by the executive needs previous authorisation from the investigative chamber (chambre de l'instruction), which is considered a court (Art. 696-16 CPP). The judicial bodies involved in granting a request for cooperation in criminal matters are principally the same as in the case of request for cooperation between Member States of the EU and cooperation with third countries. However, depending on whether cooperation is asked for the purpose of gathering of evidence, surrender of a person or enforcement of a prison sentence, the judicial authority granting cooperation varies.

3.1.2.2.2

Gathering of Evidence

In the case of gathering of evidence, the chief prosecutor (procureur de la République) or the investigative judge ( juge d’instruction) is the competent authority.6 As a general rule, the chief prosecutor is the competent authority to grant cooperation.7 The European Court of Justice has recently confirmed that magistrates serving in the French public prosecution office—like the chief prosecutor and the general prosecutor—are sufficiently independent from the executive branch and are to be considered as judicial authorities in the sense of Art. 6 § 1 of Framework Decision 2002/584 on the European arrest warrant.8 However, the investigative judge has to intervene if in the execution of the foreign request certain coercive act needs to be taken9 that can only be prescribed or performed in the framework of a judicial investigation (e.g. telecommunication surveillance, search without consent of the landlord). Concerning the execution of a European investigation order, the law adds that the investigative judge is the competent authority to execute the request if the coercive measure could be taken outside the framework of a judicial investigation in a

5

A General prosecutor (Procureur général) is attached to a court of appeal (cour d’appel) whereas a Chief prosecutor (Procureur de la République) is operating from a first instance criminal tribunal (tribunal correctionnel). 6 Art. 694-2 CPP sets this rule for cooperation with third countries to the EU whereas Art. 614-30 CPP applies to the execution of a European investigation order. 7 Art. 694-2 § 1 and Art. 694-30 § 3 CPP. 8 CJEU, judgment of 12 December 2019, Case C-566/19 PPU and C-626/19 PPU (JR and YC). 9 Art. 694-2 § 2 and Art. 694-30 § 2 CPP.

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domestic procedure but with the authorisation of the “judge of freedoms and detention” ( juge des libertés et de la détention).10 Such a situation often arises in the context of special enquiry measures applicable in the field of organised crime. In the opinion of the author of this report, this rule should be applied mutatis mutandis to the execution of a cooperation request emanating from third countries to the EU. In a case in which the requesting state did not belong to the EU, the Court of Cassation refused to validate the decision of an investigative judge not to grant cooperation on the ground that the request concerned a political crime.11 In other words, French judicial authorities have no discretion concerning the decision to grant the request or not. The decision not to comply with the requesting state is reserved to the executive power.

3.1.2.2.3

Extradition and the Execution of a European Arrest Warrant

Concerning the surrender of a person, it is for the investigative chamber (chambre de l'instruction) to take the decision to grant cooperation in case of a European arrest warrant or to authorise the government to do so if the request was submitted by a third country. The investigative chamber is taken over by the general prosecutor for this purpose and operates as a full court.

3.1.2.2.4

Enforcement of a Prison Sentence

Lastly, if the request deals with the enforcement of a prison sentence, the competent authority to execute it is the chief prosecutor12 unless he/she finds that the sentence must be adapted because it is too harsh according to French legal rules.13 In this case, either the criminal court of the first instance (tribunal correctionnel)14 or the president of this court15 takes the final decision on the nature and length of the sentence to be served in France.16

Art. 694-30 § 2 CPP. Cass. Crim. 30 March 1999, appeal nb. 97-85.451, Bull. Crim. nb. 60. See Ghica-Lemarchand (2003), pp. 33–44. 12 Art. 728-3 combined with Art. 728-4 § 1 CPP; Art. 728-42 and 728-43 CPP. 13 Art. 728-44 CPP. 14 Art. 728-4 § 2 CPP. 15 Art. 728-46 CPP. 16 In case the request is submitted by a third country, the tribunal fully decides on the nature and length of the sentence (art. 728-5 CPP). If the request is issued by the judicial authority of an EU Member State, the chief prosecutor makes a proposal to adapt the sentence or to reduce its length. It is for the president of the tribunal to approve this proposal by way of a homologation or not to do so (art. 728-47 CPP). If he/she refuses the homologation, the prosecutor can either renew her/his demand with a new motivation or a new proposal or bring the case to the Court of appeal (chambre 10 11

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In case the request for the enforcement of a prison sentence emanates from the judicial authority of an EU Member State, the president of the criminal court of the first instance approves by way of homologating—or disapprove by not doing so— the proposal of the chief prosecutor to adapt the sentence.17 This judicial authority has very minimal discretion in this case.

3.1.2.3

General Structure of Judicial Protection in Transnational Proceedings

As a general assumption, the CPP does provide judicial protection in case the request concerns the surrender of persons by way of either extradition or execution of a European arrest warrant (Sect. 3.1.2.3.1) and in case there is danger in the enforcement of a prison sentence (Sect. 3.1.2.3.2). In contrast, no legal provision sets up special remedies against requests for the gathering of evidence. However, the Court of Cassation has accepted in its case law the review of some decisions of the lower courts granting cooperation in the field of gathering of evidence under strict formal conditions (Sect. 3.1.2.3.3).

3.1.2.3.1 3.1.2.3.1.1

Request for Extradition or European Arrest Warrant France as the Requested State

Judicial protection concerning the surrender of a person is given at two levels in case the requesting state does not belong to the EU. Before the decision to extradite a person is taken by the French Prime Minister, the investigative chamber must authorise the extradition through an opinion (avis). This authorisation may be challenged before the Court of Cassation, and this has been the practice since 1984. Today, the relevant remedy is provided in Art. 696-15 § 5 CPP.18 It offers ex ante protection in the sense that the decision to extradite the person or not cannot be taken by the Prime Minister before the Court of Cassation has ruled on the case. However, as an exception, if the researched person has agreed to be extradited by the French authorities towards the general prosecutor and has confirmed her/his consent before the investigative chamber (Art. 696-13 § 1 and 696-14 § 2 CPP), he/she cannot challenge the opinion of the investigative chamber. The Prime Minister then takes the decision on the extradition.

des appels correctionnels). It is then for the court to decide on the recognition and execution of the request (art. 728-49 CPP). 17 See the precedent footnote. 18 Originally, the law did not provide a remedy against the opinion of the investigative chamber because an opinion given to the Government is not considered as a judgement. However, the Court of cassation accepts to exercise judicial review on such an opinion since Cass. Crim. 17 May 1984, appeal nb. 83-92.068, Bull. Crim. Nb. 183. See Rebut (2019) nb. 337.

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Additionally, after the Prime Minister has issued the extradition decree—in case the investigative chamber has authorised the extradition—the researched person may also challenge the decree before the highest administrative court, the Conseil d’Etat (ex post protection).19 The remedy that may be used for this purpose is the common administrative law remedy against acts taken by the executive, the so-called recours pour excès de pouvoir (annulment on ultra vires grounds).20 However, the time period for the exercise of the remedy is one month in the case of extradition (Art. 696-18 § 2 CPP), whereas it is two months for the common administrative law remedy.21 As a result, in case the researched person did not agree to her/his extradition, two remedies are available to her/him. one before the decision to extradite is taken by the government and another after this decision is made. Between 1984 and 2006, the Court of Cassation’s jurisdiction is limited to the so-called external legality (composition of the investigative chamber, procedure followed before it, competence of the investigative chamber and the procedural defect of its opinion or judgment). As these points are not the subject of review of the Conseil d'Etat, there was no overlapping of jurisdiction between the two highest courts. From 200622 on, however, the Court of Cassation progressively extended its jurisdiction to all legal requirements, including the legal requirements for extradition set down by the CPP (so-called internal legality).23 This situation of overlapping jurisdiction of the Court of Cassation and the Conseil d'Etat over the same legal matters provokes a risk of contradictions between the case law of the courts of judicial order and administrative order. Between Member States of the Union, cooperation is given directly “from judge to judge”, with the result that no governmental action takes place. Consequently, the decision to execute a European arrest warrant is taken by the investigative chamber itself, meaning that there is no ex ante judicial protection. The decision of this court may be challenged before the Court of Cassation (Art. 695-46 al. 4 CPP, ex post protection) unless the researched person has previously agreed to be surrendered to the requesting state by the French authorities (Art. 695-31 § 3 CPP). The decision to authorise extradition or to execute a European arrest warrant—or not—by the investigative chamber may be challenged by the parties to the proceedings, that is, the researched person and the general prosecutor. Non-governmental organisations (NGOs) and the requesting state are not allowed to intervene (although the requesting state may be authorised by the investigative

The Conseil d’Etat exercised judicial review for the first time on an extradition decree in 1937 (CE 28 May 1937, req. Nb. 54.631, Decerf) and provides a full control of the legality of the extradition since 1977 (CE 24 June 1977, req. Nb. 01.591, Astudillo Calleja). 20 Rebut (2019), nb. 348. 21 Huet (2006), pp. 1075–1084, p. 1084. 22 Cass. crim. 4 January 2006, appeal nb. 05-86.258, Bull. crim. nb. 6. 23 Rebut (2014), pp. 635–648, spec. p. 639 and following. 19

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chamber to be represented in the audience24). The decree of the Prime Minister to grant extradition or not may also be challenged by the researched person. In a decision of 1993, where the claimant was the requesting state, the Conseil d’Etat reviewed a refusal of the Prime Minister to grant extradition.25 It confirmed this position in 1994, again in a case in which the government had refused to grant extradition.26 3.1.2.3.1.2

France as the Requesting State

If France is the requesting state, judicial protection differs depending on whether extradition was asked judging through trying the researched person or executing a penalty that was previously issued on her/him. In the first case, a judicial investigation must be ongoing. Also, judicial protection against the act of the public prosecution office asking the French Government to request a foreign state for the extradition of a person may be challenged by the defendant (the researched person) before the investigative chamber (Art. 170 ff. CPP) and further before the Court of Cassation. However, this remedy is not frequently used ex ante (before the decision of extradition is taken by the foreign country) as the researched person must be a party to the proceedings in order to exercise it (Art. 173 § 3 CPP), which means that he/she must have been indicted by the investigative judge.27 Usually, the indictment takes place after the person has been surrendered to the French judicial authorities. Furthermore, the decision to request for extradition, taken by the French Government, is not subject to judicial review.28 In case the extradition was requested from the foreign state for the purpose of executing a penalty, the remedy under Art. 170 ff. CPP is not applicable because there is no judicial investigation. After extradition has been obtained by France, however, a special remedy is available to challenge it if it contradicted French law (Art. 696-36 CPP, ex post protection). This does not depend on whether it was requested judging through trying the person or executing a penalty issued on her/him. The competent authority is either the investigative chamber, if the extradition was requested for the purpose of judgment, or the criminal court, if extradition was requested for the purpose of executing a penalty. In principle, the remedy can only be lodged by the researched person after she/he has been surrendered to France. However, the Court of Cassation overturned the decision of an investigative chamber to refuse jurisdiction over the legality of a domestic arrest warrant on which a French request was based after the

24 Art. 696-16 CPP. The requesting State may only assist to the audience through its representant. It cannot become a party to the procedure. 25 CE, Ass., 15 October 1993, req. nb. 142578. 26 CE, 14 December 1994, req. nb. 156490. See Labayle (1995), p. 109. 27 Moreover, the researched person mostly doesn’t know about the act of the prosecution office until he/she has been indicted, because access to the file by the defending lawyer is only provided after indictment. 28 Cass. crim. 21 May 1996, appeal nb. 96-81112, Bull. crim. nb.207.

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person had been arrested in the foreign state but was still detained in that state. The court based its decision on Art. 5 § 4 of the ECHR and ruled that judicial review had to be considered admissible.29 Moreover, the competent court30 may raise grounds for the annulment of the extradition on its own motion. In case a French European arrest warrant was issued against a person located in the EU, the act of the public prosecution office of issuing the European arrest warrant (Art. 695-16 CPP) may be challenged before the investigative chamber (Art. 173 CPP) if the person was requested to be arrested for the purpose of being imposed judgment. For cooperation between MemberStates of the EU, however, there is no special remedy available against the execution of a French European arrest warrant by a foreign judicial authority after the person has been surrendered (no equivalent provision to Art. 696-36 CPP).

3.1.2.3.2 3.1.2.3.2.1

Request for the Enforcement of a Prison Sentence France as the Requested State

Judicial remedy is provided either way whether the requesting state is a third state to the EU or a part of it. In the first case, the criminal court of the first instance is the competent authority to review the recognition of the foreign sentence without adaptation of the sentence (Art. 728-7 CPP). If an adaptation was necessary, the competent authority to review the decision of the criminal court is the Court of Appeal (Art. 728-5 CPP) and the Court of Cassation in the final instance. In case the requesting state is a member of the EU, Art. 728-48 CPP provides a remedy against the decision of the chief prosecutor to recognise the foreign judgment and, if appropriate, of the homologation of the adaptation of the sentence by the president of the criminal court. The person concerned may appeal the decision to the criminal court of appeal (chambre des appels correctionnels), and this decision may be challenged before the Court of Cassation (Art. 728-53 CPP). In both cases, judicial protection is given after the decision to recognise the foreign sentence is rendered (ex post protection). 3.1.2.3.2.2

France as the Requesting State

In the reverse case of France being the requesting state, the CPP provides no remedy against the decision of the French public prosecution office to ask the foreign authorities for the recognition and execution of a French sentence nor against the decision to grant cooperation by the foreign authorities.

29

Cass. crim. 7 November 2000, appeal nb. 00-85.221, Bull. crim. nb.329. Either the criminal court if extradition is requested for the execution of a sentence against the researched person or the investigative chamber if it is requested for the purpose to judge the person. 30

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Request for the Gathering of Evidence France as the Requested State

Concerning the gathering of evidence, the CPP does not provide remedies against the decision to grant cooperation to countries not belonging to the EU. Nor is there a special remedy set up by law against measures executing a foreign request. It was thus for the courts to recognize some protection for the individuals, relying on common remedies available in French law against measures executing a judicial order (the order aims here at the execution of a foreign request).31 The twofold orientation of Art. 694-2 CPP (execution of the foreign request by the prosecutor or by the investigating judge) has tremendous consequences on judicial protection. In case the prosecutor achieves the execution of the foreign request by taking the appropriate measures (interrogation of the suspected person, hearing of a witness, search with the consent of the householder, etc.), the competent authority for judicial review in national cases would be the trial court. However, in transnational cases, the trial court is a foreign court, which means that no judicial review takes place in France.32 In contrast, in a case where the investigating judge is the competent authority, the Court of Cassation, in 1997, recognized the decision of the judge to order measures necessary to execute the foreign request, which may be challenged by the parties (that is, the prosecutor, the defendant and the civil party, being the victim) before the investigative chamber (Art. 173 CPP). According to the Court of Cassation, this remedy is available even without ongoing judicial investigation (enquiries are taking place in the foreign country).33 It is an ex post protection, and the measure contested must have been executed before it can be the subject of judicial review. The Court of Cassation even held—in an isolated decision—that a third person to the procedure, a person whose house was searched in the execution of a foreign request, may contest the measure.34 However, there are serious restrictions in practice due to the fact that the minutes concerning these measures often have been transmitted to the foreign authorities when judicial review is asked for in France. French courts indeed refuse to exercise judicial review on mere copies of these minutes.35 If cooperation takes place between Member States of the EU, the European investigation order is applicable. The CPP does not provide judicial review of the decision to execute a foreign European investigation order in France. However, Art. 694-41 CPP enables the persons concerned by the measures executing the European

31

Aubert (2004), pp. 621–638, espec. p. 629. Aubert (2004), op. cit., pp. 629–630. 33 Cass. crim. 24 June 1997, appeal nb. 96-85.581, Bull. crim. nb. 252. See Didier Rebut, Droit pénal international., nb. 564. 34 Cass. crim. 30 November 1999, appeal nb. 99-81.172 (contra Cass. crim. 30 October 1995, appeal nb. 94-83.842, Bull. crim. nb. 332. 35 Cass. crim. 3 June 2003, appeal nb. 02-87.484, Bull. crim. nb. 113; Cass. Crim. 16 February 2010, appeal nb. 09-88.273, Bull. crim. nb. 29. See Beauvallet (30 April 2010), nb. 38–40. 32

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investigation order to challenge them if they could be challenged in the context of a national proceeding. According to law, the same remedies and the same modalities apply as in a purely national case. In reality, however, things are more complicated. If an investigative judge was in charge of executing the European investigation order, her/his decision may be challenged before the investigative chamber if the case law of the Court of Cassation of 1997 concerning a request of a non-Member State of the EU is applied to the case of a European investigation order. There is no case law available on the question at the moment. If the European investigation order was executed by a prosecutor, no remedy against her/his decision is accessible as, in a domestic procedure, judicial review would take place in a trial. 3.1.2.3.3.2

France as the Requesting State

In cooperation cases with non-Member States of the EU, judicial protection can only be given if a party to the proceedings asks for the annulment of the French judicial act requiring mutual legal assistance, provided there is an ongoing investigation36 (Art. 173 CPP, mostly ex post protection).37 If the judicial authority of a Member State of the EU is requested by a French judicial authority, the same applies but the annulment request must be directed against the European investigation order, issued by the investigating judge, the investigating chamber or its president.38 In case the French request or EIO is not issued in the scope of a judicial investigation, no remedy is provided by law. This situation is especially not satisfactory in the context of EU cooperation as Art. 14 § 2 of Directive 2014/41 on the European investigation order provides that judicial control of the grounds for the request can only take place in the issuing state of the European investigation order. Moreover, Art. 694-41 § 3 CPP, dealing with cases in which France is the executing state, indicates that judicial control may only take place in the issuing state. It would have been logical for the CPP to provide a remedy making it possible to contest the grounds for the request in case France is the issuing state.

36

According to Art. 79 CPP, a judicial investigation is mandatory if it is suspected that a felony (like murder) was committed; it is optional if the suspicion concerns a misdemeanor (like manslaughter, fraud, corruption). 37 Ghica-Lemarchand (2003), op. cit., pp. 43–44. 38 Art. 694-20 CPP.

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Subject Matter of Judicial Control

3.2.1

International and Internal Dimensions of the Granting Decision

3.2.1.1

Extradition and Execution of a European Arrest Warrant

In the matter of extradition, judicial protection provided either ex ante (by the investigative chamber) or ex post (by the Conseil d’Etat) affects the international dimension of the granting decision. The function of these authorities does not significantly differ in the sense that they both examine whether extradition may be granted or not according to French legal rules under the CPP. For example, both are in the position to verify whether one of the grounds for refusals set down in Art. 696-4 CPP is met or not. In the case of the execution of a European arrest warrant, judicial protection as to the international dimension of the request is given by the investigative chamber only. The arrest of the researched person, which takes place at the very beginning of the procedure, prior to the start of the proceedings before the investigative chamber, and his or her detention up to her/his surrender to the foreign state are subject to a different regime of protection. Detention by reason of the extradition process is decided by the first president of the appeal court (Art. 696-11 CPP), and a request for release may be submitted at any time by the person concerned before the investigative chamber (Art. 696-19 CPP). The same rules apply in case there is risk in the execution of a European arrest warrant (Art. 695-28 and 695-34 CPP).

3.2.1.1.1

Enforcement of a Prison Sentence

The international dimension of the decision to grant cooperation to a foreign country, which is taken by the chief prosecutor, is subjected to judicial review by the criminal court of the first instance (cooperation with third countries, Art. 728-7 CPP) or the criminal court of appeal (cooperation with third countries and need for an adaptation of the sentence, Art. 728-5 CPP; cooperation with EU Member States, Art. 728-48 CPP). The internal dimension of the decision may be contested in a separate proceeding in cases of cooperation with third countries (Art. 728-7 CPP), as well as when the foreign request emanates from another EU Member State (the same rules apply as in national proceedings, Art. 728-56 CPP).

3.2.1.1.2

Gathering of Evidence

As we have seen before, judicial control on a foreign request regarding the gathering of evidence only concerns the French measures executing the decision, which are

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taken by the chief prosecutor or the investigative judge (Art. 694-2 CPP for cooperation with non-Member States of the EU, art. 694-30 CPP in case of a European investigation order). Consequently, only the internal dimension of the decision on the foreign request is subjected to judicial protection. The modalities of delivering and transmitting the request to the French judicial authorities are considered as “measures of administration of justice”. Therefore, the violation of legal rules concerning these measures cannot trigger the annulment of the execution of the request.39

3.2.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

No legal provision determines whether French judicial authorities or courts can incidentally examine the lawfulness of the foreign proceedings and decisions on which the cooperation request is based. As a matter of principle, however, French courts do not exercise control over the correct application of foreign law by foreign authorities. Respect for the sovereignty of foreign states and their institutions justifies this position, which applies to formal requirements as well as to substantive law. However, some exceptions to this principle have been developed by the Court of Cassation, as we will see when going through the different cooperation instruments. Another point is that French procedural law does not provide for the possibility to lodge a legal remedy against a foreign request with a French court that would trigger judicial review in the requesting state.

3.2.2.1

Extradition and Execution on a European Arrest Warrant

Concerning extradition, French courts have always denied themselves the competence to decide whether foreign authorities have correctly applied their law in the proceedings preceding the request for extradition. For example, they do not verify whether the facts for which extradition is requested have been correctly characterised by the foreign authority according to foreign law.40 However, an exception must be mentioned concerning the statute of limitation. Before the European arrest warrant

39 Cass. crim. 4 November 1997, appeal nb. 97-83.463, Bull. crim. nb. 365; Cass. crim. 9 July 2003, appeal nb. 03-82.163, Bull. crim. nb. 134. See Guery (2019), nb. 350–352. 40 CE 24 May 1985, req. nb. 65207, published: “qu’il n’appartient pas aux autorités françaises, lorsqu’elles se prononcent sur une demande d’extradition, de vérifier si les faits pour lesquels l’extradition est demandée ont reçu, de la part des autorités de l’Etat réclamant, une exacte qualification juridique au regard de la loi pénale de cet Etat”. Cass. crim. 24 May 2018, appeal nb. 17-86.340, published: “Qu'en effet, s'il appartient aux juridictions françaises, lorsqu'elles se prononcent sur une demande d'extradition, de vérifier si les faits pour lesquels l'extradition est demandée étaient incriminés par l'Etat requérant au moment de leur commission, il ne leur

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was applicable, extradition between Member States of the EU was regulated by the Dublin Convention of 27 September 1996. According to Art. 8 of this Convention, solely the statute of limitation of the requesting state was to be considered (the statute of limitation of the requested state did not matter, on the contrary to extradition with non-Member States). In this context, French courts decided to verify whether the foreign authorities had correctly applied the foreign legislation on the statute of limitation.41 The same principle applies to the European arrest warrant. For instance, the Court of Cassation denied the investigative chamber of the opportunity to assess whether the foreign authorities were right to engage proceedings against the researched person.42 It also sanctioned an investigative chamber that assessed the criminal qualification given to the facts by a Polish judicial authority.43 In the same decision, however, the Court of Cassation left room for an exception to the principle of non-assessment of a foreign decision in case the legal qualification of the facts given by the foreign authority would be obviously inadequate.44

3.2.2.2

Enforcement of a Prison Sentence

In the matter of enforcement of foreign sentences, case law reviewing decisions to grant cooperation is only available regarding requests emanating from third countries to the EU. French courts are not supposed to interpret the foreign decision. They must apply it without assessing or correcting it,45 even if the foreign sentence resulting from the foreign judgment seems to be disproportionate according to French standards.46

3.2.2.3

Gathering of Evidence

Additionally, concerning the gathering of evidence, the Court of Cassation principally denies jurisdiction to French courts to examine the lawfulness of the foreign proceedings on which the request is based.47 However, in some decisions, the Court appartient pas de vérifier si ces faits ont reçu, de la part des autorités de cet État, une exacte qualification juridique au regard de la loi pénale de ce dernier”. 41 CE 22 September 1997, req. Nb. 182815; Cass. crim. 4 January 2006, appeal nb. 05-86.258, Bull. crim. nb. 6. 42 Cass. crim. 5 April 2006, Bull. Crim. nb. 106. 43 Cass. crim. 21 November 2007, appeal nb. 07-87540, Bull. crim. nb. 291, obs. Lelieur, AJ Pénal 2008, p. 195; Maron, Droit pénal 2008, comm. nb. 26. 44 “Sauf inadéquation manifeste entre les faits et la qualification retenue”. 45 Court of Appeal of Paris, 18 February 2008, obs. Herzog-Evans, AJ Pénal 2008, p. 384. 46 Cass. crim. 27 January 2018, appeal nb. 17-81.504; Cass. crim. 18 February 2018, appeal Nb. 17-81.503. 47 Cass. crim. 27 June 2018, appeal nb. 17-85.101, published.

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of Cassation refused to completely turn a blind eye on the foreign proceedings and decided to assess whether the rights of defence and general principles of law had been respected in the foreign state.48 There have been no cases until now in which the court decided to quash a French decision to grant cooperation on the ground that the foreign proceedings violated the rights of defence or another general principle of law. However, in examining whether these fundamental guarantees are sufficiently enforced by the foreign authorities, the Court of Cassation opens a significant opportunity to review foreign decisions for the purpose of ensuring the protection of fundamental rights. The contention that a foreign judicial authority can incidentally examine the lawfulness of a French request is also rejected. In a case brought to the Court of Cassation in 2017, a French international rogatory commission was sent to Poland in order to officially accuse a Polish citizen of an offence he was suspected of having committed in France. In the later proceedings in France, the accused person argued that the Polish tribunal should have determined whether the decision of the French investigative judge to accuse him was lawful before executing it. The French Court of Cassation decided that the investigative judge of the requesting state is the sole competent authority to decide whether an accusation is appropriate.49 No decision of the Court of Cassation has been taken until now concerning the execution of a European investigation order. Considering the principle of mutual trust between Member States of the EU, it is highly improbable that French courts will review the proceedings and decisions taken by authorities of other Member States under foreign law. Notwithstanding this assessment, the CPP astonishingly regulates in Art. 694-24 CPP that the successful contestation of a foreign measure, taken for the purpose of executing a French request, before the authorities of a foreign country does not trigger the declaration of inadmissibility of evidence obtained through the measure and transmitted to the French authorities. In other words, French law rules that French courts must turn a blind eye to foreign decisions annulling or setting aside illegal measures. The only restriction they must follow, according to the CPP, is that the illegally obtained elements of evidence cannot serve as the sole basis for the condemnation of the suspected person in the French trial.50

48

Cass. crim. 4 November 1997, appeal nb. 97-83.463, Bull. crim. nb. 366; see also Cass. crim. 13 June 2001, appeal nb. 01-81.593; Cass. crim. 7 June 2017, appeal nb. 16-87.114, published. 49 Cass. crim. 7 June 2017, appeal nb. 16-87.114, published. 50 Art. 694-24 § 1: “Le fait que la mesure d’enquête réalisée dans l’Etat d’exécution ait été contestée avec succès devant les autorités de cet Etat et conformément au droit de cet Etat n’entraine pas par lui-même la nullité des éléments de preuve adressés aux autorités judiciaires françaises, mais ces éléments ne peuvent servir de seul fondement à la condamnation de la personne”.

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3.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

3.2.3.1

Direct Judicial Review

Taking the perspective of France as the requesting state, direct judicial control is exercised over a French judicial act asking for a request for extradition or issuing a European arrest warrant (art. 170 ff. CPP) on one side and over the extradition request obtained by the requested country (Art. 696-36 CPP) on the other side. Both remedies may concern the international dimension of the decision. The CPP does not address the question whether the foreign decision to grant cooperation to France or the measures executing this decision may be assessed by French courts according to the law of the foreign country. However, the Court of Cassation invariably repeats its case law denying to French courts the jurisdiction to assess foreign decisions and measures of execution under foreign law, for reasons of respect of foreign sovereignty.51 Judicial protection based on these remedies also has an internal dimension, but only on the French side: the legality of the national arrest warrant preceding the requesting act may be the subject of review by French courts, applying national criminal procedural law. Especially, the qualification of facts given by French judicial authorities to motivate their request is subject to judicial review (Art. 696-37 CPP). In case France requests cooperation for the gathering of evidence, judicial protection given by the investigative chamber only takes place if the national decision preceding the request for cooperation has been taken in the framework of a judicial investigation and it is limited to the internal dimension of the decision. This protection can theoretically be exercised at trial if no investigation was opened. Moreover, foreign decisions and measures taken in a foreign state in order to execute a French international rogatory commission cannot be reviewed by French courts. This is true even if a French investigating judge participated in the execution of an international rogatory commission in the foreign state and her/his acts are contested. The Court of Cassation in a case finds that the French judge was operating under the conditions defined by the foreign authority, whose sovereignty must be respected by French courts.52

3.2.3.2

Indirect Judicial Review

If evidence was gained by means of international cooperation and the French request is illegal, the chamber of investigation may in principle annul the procedure based on

51

Cass. crim. 21 May 1996, appeal nb. 96-81.112, Bull. crim. nb. 207; Cass. crim. 24 sept. 1997, appeal nb. 97-83.787, Bull. crim. nb. 311. 52 Cass. crim. 20 June 2012, appeal Nb. 12-81-24; Bull. crim. nb. 157, obs. Danet, RSC 2012 p. 624; Poissonnier, AJ Pénal 2013, p. 53.

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the unlawful request. Consequently, the evidence filed through this procedure cannot be exploited in trial. In case the request was formulated outside of a judicial investigation, it is for the trial court—if asked to do so by the defence lawyer—to annul the procedure based on the illegal request. The consequence is the same: evidence obtained through measures based on the request is not usable. However, concrete examples of French courts declaring a request as unlawful could not be found in the case law of the Court of Cassation. If the illegal decision is taken by the foreign judicial authorities requested by the French authorities, evidence obtained cannot be challenged in France because French courts are not allowed to assess the legality of a foreign decision under foreign law. According to the case law of the Court of Cassation, however, if the rights of defence or general principles of law were violated in the foreign state, French courts would regain jurisdiction and the evidence obtained could be declared inadmissible.53 However, there are no concrete examples of the exercise of such judicial control being achieved in case law.

3.2.3.3

Decision Not to Initiate a Request

The decision not to initiate a request for cooperation is not subject to judicial review, even if the suspected person asked the chief prosecutor or the investigative judge for such a request to be issued (so-called demande d'acte, Art. 694-20 § 2 CPP concerning the European investigation order). Although the decision not to initiate a request could violate the fair trial principle and theoretically be challenged under this argument before an investigative chamber or a trial court, there is no example of the success of such an argument in case law.

3.2.4

Concentration of Judicial Review (SIS II)

The legal remedy against an alert introduced into the second-generation Schengen Information System (SIS II), deriving from Art. 59 of the Council Decision 2007/ 533 of 12 June 2007 on the establishment, operation and use of the SIS II, was not inserted into the CPP and not even into the legislation, properly speaking. Instead, a decree of 201654 provided a remedy before a so-called independent administrative authority (autorité administrative indépendante), the National Commission for Data Protection and Liberties (Commission nationale de l'informatique et des libertés (CNIL), a popular independent administrative authority) or the Central Direction of

53

Cass. crim. 4 November 1997, appeal nb. 97-83.463, Bull. crim. nb. 366; Cass. crim. 7 June 2017, appeal nb. 16-87.141, published. 54 Decree nb. 2016-1956 of 28 December 2016 on the national part of the second generation Schengen Information System.

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Judicial Police (attached to the Ministry of Interior). The remedy is set up in the Code of Internal Security (Art. R. 231-12). It enables individuals to ask for access to the data kept in the national part of the SIS II and to rectify them if necessary. The required authority must give the applicant a response no later than two months after the request. There is no French provision either that deals with the potential problem of cumulative remedies exercised in different Member States of the EU or of the hypothetical concentration of such remedies.

3.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations)

When foreign investigative measures take place on French territory, a potential gap in judicial protection may arise if neither the French judicial authorities nor the foreign judicial authorities have jurisdiction to provide judicial protection. Foreign police officers operating on French territory only do so after a special authorisation has been given by the Ministry of Justice, and they have to work under the supervision of a national police officer. They never exercise coercive power on French territory. This is the case for joint investigation teams built up in the framework of EU cooperation (Art. 695-2 CPP) and also for more specific cooperation measures with third countries, like undercover operations (Art. 694-7 and 694-8 CPP). French law does not provide for a special legal remedy against measures taken by a foreign police officer, for example an observation and its following report. As long as the findings are later included in a French proceeding file (for example an undercover operation based on a French investigation according to Art. 694-8 CPP), there is no reason why usual remedies applicable to investigative measures taken by the supervising French police officer would not apply. In case the foreign policer was allowed to act on French territory for the purpose of a foreign investigation (Art. 694-7 CPP) or the results of a joint investigation team are later exploited in the EU Member State cooperating with France, French judicial authorities as the investigative chamber and the trial court do not have jurisdiction to review the measure. In the reverse case in which French police officers operate abroad (Art. 695-3 CPP for joint investigation teams in the EU, art. 694-6 CPP for observation in foreign countries), still the same principle applies. Judicial protection can only be given by French courts if the minutes concerning the measures are executed for the purpose of French proceedings and are consequently introduced into a French procedural file. French courts do not have jurisdiction to review measures serving foreign proceedings, and they are not allowed to assess elements of a foreign procedural file.

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Scope of Judicial Protection and Applicable Legal Standards

3.3.1

Judicial Protection and Applicable Standards in the Requested State

If France is the requested state, the main legal corpus that is the subject of judicial review by French authorities is obviously French law, especially the material rules given by the CPP (Sect. 3.3.1.2). However, these rules sometimes refer to the law of the requesting state, which in this case, and in some specific circumstances, is applicable before French courts (Sect. 3.3.1.1). Finally, international law may be considered (Sect. 3.3.1.3), as well as EU law (Sect. 3.3.1.4).

3.3.1.1 3.3.1.1.1

Law of the Requesting State Extradition and Execution of a European Arrest Warrant

Mainly concerning extradition and the European arrest warrant, the enforcement of the material rules in the CPP triggers the application of the law of the requesting state by French courts. This is true whether the investigative chamber is the authority providing judicial protection or, in case the requesting state does not belong to the EU and a remedy was exercised against the extradition decree, whether the Conseil d’Etat is the competent authority. These two courts apply the same legal standards55 as long as they rule on extradition, although the first is a judicial authority whereas the second is an administrative court.56 As to extradition, several rules taken out of the provisions of the CPP relative to the material conditions for granting cooperation to the requesting state indirectly advise for the application of the law of that state. According to Art. 696-3 § 1 CPP, extradition may be granted if the facts constitute a felony according to the law of the requesting state or a misdemeanour punished by a maximum of at least two years of imprisonment, if extradition is asked judging through trying a person, or at least two months, if the person is requested for the purpose of executing a judgment pronounced against her/him. In most cases, the foreign decision on which the request is based gives reliable information on the fulfilment of this condition—and French courts are not allowed to assess the decision of foreign authorities—but in some cases, the question arose whether the acts were incriminated by foreign law at the time they were committed. For instance, requests for extradition sent to France from 55 Before 1977 (CE 24 June 1977, Astudillo Calleja), the Conseil d’Etat only controlled the so-called “external legality” of the decree, meaning whether or not the procedural rules of law had been correctly applied. The material conditions of the CPP on extradition were not subject to this ex-post judicial protection. 56 This is also true for the application of national law, international law and EU-law.

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Rwanda for the offences of genocide and crime against humanity were contested by the researched person for the reason that the two crimes were not recognised by the Rwandese law at the time he committed the acts. The Court of Cassation found that the French court must clearly assess whether the Rwandese law incriminated genocide and crimes against humanity at the time the acts were committed. Otherwise, their decision to grant extradition would violate the principle of non-retroactivity of penal law.57 Thus, French courts are confronted with the law of the requesting state.58 In a recent decision, the Court of Cassation quashed an opinion of an investigative chamber that did not verify whether the acts were incriminated according to Russian law.59 In other words, French courts cannot simply rely on the request of foreign authorities. Other examples concern several grounds for the refusal of extradition set up by Art. 696-4 CPP. According to point 5 ) of this provision, extradition must not be granted if it violates the statute of limitation of the law of the requesting state and if the public action against the researched person was extinguished according to this law. Point 6 ) prohibits extradition if the penalty or detention order that the researched person is exposed to in the requesting state is contrary to the French “ordre public”. Finally, it is for point 7 ) to exclude extradition in case the researched person would be judged by a tribunal that does not respect the fundamental guarantees of the procedure and the rights of the defence in the requesting state. Many decisions of the Court of Cassation instruct French courts to examine the law of the requesting state in order to ensure that no ground for refusal provided by French law exists.60 Moreover, French courts have to check the incidence of the law of the requesting state when, according to case law, “general principle of law” require them to do so. In a case where extradition was requested by Italy and the researched person asserted that amnesty had cancelled the crime in this country, the Conseil d’Etat held as a general principle of law that extradition could not be granted if the law of the requesting state had condoned the offence. It then concretely verified whether the Italian law of amnesty was applicable to the acts.61

57 Cass. crim. 24 April 2013, appeal nb. 13-81.061 ; Cass crim. 26 February 2014 (3 judgements: appeal nb. 13-86.631; appeal nb. 13-87.888; appeal nb. 13-87.846, Bull. crim. nb. 59-60), obs. Fonteix, Recueil Dalloz 2014 p. 610; Roets, Recueil Dalloz 2014, p. 702; Herran, JPC 2014, nb. 538. 58 See also Cass. crim. 24 May 2018, appeal nb. 17-86.340, published, and CE 18 June 2018, req. nb. 415046, obs. Otero, AJ Pénal 2018 p. 472. 59 Cass. crim. 7 August 2019, appeal nb. 18-84.182, published, obs. Nicaud, AJ Pénal 2019, p. 506. 60 Concerning statutes of limitation according to the law of the requesting state: Cass. Crim. 4 January 2006, appeal nb. 05-86.258, Bull. crim. nb. 6; concerning the penalty of amputation incurred in the United Arab Emirates: Cass. Crim. 29 October 2008, appeal Nb. 08-85.513, Bull crim. nb. 217, obs. Demarchi, AJ Pénal 2009, p. 79; concerning the respect of rights to defense in an Albanian procedure: Cass. crim. 21 October 2014, appeal nb. 14-85.257, Bull. crim nb. 213, obs. Brach-Thiel, AJ Pénal 2015, p. 52, Boccon-Gibod, RSC 2014, p. 798. 61 CE 29 September 1989, req. nb. 100-373.

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Mostly the same rules apply in the context of cooperation with Member States of the European Union, whereas the principle of mutual trust between the Member States limits the opportunities for French courts to measure the legality of the request according to foreign law. French courts must, however, refer to the law of the requesting state when the CPP requires certain conditions to be met for the execution of a European arrest warrant. This is true for the requirement of incrimination of acts according to the law of the requesting state, set by Art. 695-12 CPP (the offence must be punished by a penalty of at least one year of imprisonment, if extradition is asked for the purpose of judgment, and at least four months, if the person is requested for the purpose of execution of judgment).62 The same applies in the matter of grounds for refusal, more precisely when French courts have to assess whether an exception to a ground for refusal is given in the specific case. A first example concerns the refusal to execute a European arrest warrant based on the fact that the researched person was judged in absentia in the requesting state. An exception is made to this ground for refusal; according to Art. 695-22-1, 4 ) CPP, among others, the person may lodge a remedy in the requesting state after he/she has been surrendered to that state by the French authorities. In order to assess whether the remedy is effective and meets French requirements under Art. 695-22-1, 4 ) CPP, French courts must refer to the law of the requesting state.63 A second example derives from an exception to the ground for refusal, which is absence of double criminality of acts. According to Art. 695-23 § 2 CPP, French courts do not have to check whether the offences fall under French criminal law when they are punished with a penalty of at least three years of imprisonment by the law of the requested state and they belong to one of the 32 categories of offences listed in Art. 2 § 2 of Framework Decision 2002/584. French courts must refer to the law of the requesting state in order to know whether the acts are punished with a penalty of at least 3 years of imprisonment according to this law. In principle, the European arrest warrant gives reliable information on this point, but the Court of Cassation allows a breach of the principle of mutual trust in authorising French courts to verify whether the foreign judicial authority issuing the European arrest warrant did not choose an obviously inadequate qualification of the facts.64

3.3.1.1.2

Enforcement of Prison Sentences

An interesting judgment of the Court of Cassation concerns the enforcement of prison sentences pronounced in Spain before Framework Decision 2008/909 was

62 Cass. crim. 7 March 2007, appeal nb. 07-80.899, Bull. crim. nb. 76, obs. Royer, AJ Pénal 2007, p. 187. 63 Cass. crim. 15 October 2013, appeal nb. 13-86.329, Bull. crim. nb. 190, obs. Lelieur, AJ Pénal 2013, p. 193. 64 Cass. crim. 21 November 2007, appeal nb. 07-87540, Bull. crim. Nb. 291, obs. Lelieur, AJ Pénal 2008, p. 195; Maron, Droit pénal 2008, comm. nb. 26.

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applicable between France and Spain. Put together, three Spanish sentences summed up to 38 years of imprisonment, which overrides the French maximum length of imprisonment of 30 years. The French criminal court of appeal thus decided to reduce the sanction on the basis of Art. 728-4 § 2 CPP. The Court of Cassation quashed the decision, reproaching the court of appeal not to have enquired about the Spanish rules on non-cumulation of penalties. These rules would possibly have permitted to reduce the total amount of sanctions under 30 years.65 This judgment is quite bold and shows that the Court of Cassation has not totally refrained from the idea of French courts applying foreign law.

3.3.1.1.3

Gathering of Evidence

Except for the case in which the requesting state asks the requested state for the application of its national law while executing the measures required for cooperation ( forum regit actum, Art. 694-3 § 2 CPP for cooperation with third countries to the EU, Art. 694-36 CPP for the execution of a European investigation order), French courts do not refer to the law of the requesting state for the purpose of executing a foreign request. In particular, they do not control the legality of the request on the basis of the foreign law.66 Additionally, at least regarding cooperation with third countries to the EU, the requirements for granting legal assistance set by French law and in reference to foreign law are minimal. For instance, there is no legal requirement that the foreign law must incriminate the acts. It seems obvious, however, that French courts should refuse to provide legal assistance if they were to observe that the foreign request concerns acts that do not fall under criminal law according to a foreign country’s criminal law. Paradoxically, an exception to the permissiveness of French law concerning the incrimination of acts under the law of the requesting state may appear in case another Member State of the EU issues a European investigation order and the question of existence of a ground for refusal arises before a French judicial authority. There is no case law available on this point until now, but relying on experience with the European arrest warrant, it appears that some references to the law of the issuing state of the European investigation order will be useful. Take for instance Art. 694-31, 8 ) CPP, which allows for the refusal of the execution of a European investigation order when the acts are not incriminated by French law, except if they are punished with a penalty of at least three years of imprisonment according to the law of the issuing state and they fall into the well-known list of 32 categories of offences. In order to check whether the exceptional situation is exists in the specific case, French courts will have to apply the law of the issuing state.

65

Cass. crim. 30 November 2016, appeal nb. 15-83.869, published, obs. Priou-Alibert, Dalloz Actualité, 14 December 2016. 66 Cass. crim. 30 October 1995, appeal nb. 94-83.842, Bull. crim. Nb. 332; Cass. Crim. 31 October 2018, appeal nb. 17-86.107.

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French Law

When providing judicial protection on decisions to grant cooperation to a foreign country, French courts apply French law—being here the law of the requested state—without limitation. Any rule of criminal law—as for example the principle of non-retroactivity of criminal law67—and criminal procedural law68 fall into the scope of their office. French courts may also be creative and set up new principles of law while exercising judicial review in case the legal provisions on cooperation instruments, for instance, do not guarantee sufficient protection of individuals. In its case law, the Conseil d’Etat established as a general principle of law that a person prosecuted in her/his country for acts covered by an amnesty law of this country could not be extradited.69 It also developed the “fundamental principle recognised by the laws of the Republic” according to which a person prosecuted in her/his country for a political crime or whose extradition is requested for a political aim cannot be extradited.70 National public order (ordre public français) also plays a role, especially if the punishment or detention order obtained by the researched person in the requesting state violates French understanding (Art. 696-4 n 6 CPP). This would be the case for death penalty71 or physical punishments like amputation.72 However, a 1995 ruling that imposed upon a person a prohibition to communicate with her/his lawyer for a period of 7 days was considered not contrary to French public order.73 Moreover, when measures executing the decision to grant cooperation taken on French territory are reviewed by French authorities (judges of freedom and detention, investigative chamber, trial court), there is no restriction concerning the applicable legal standards. Judicial review is given the same way it would be provided in a purely domestic proceeding. Concerning constitutional law, French courts are not allowed to apply a legal rule directly if it seems contrary to a constitutional provision or principle. They must transfer the case to the Constitutional Council, which is the competent authority to decide whether a legal rule is unconstitutional and should be removed from the national legal system. This general structural rule logically applies to international

67 Cass. crim. 24 April 2013, appeal nb. 13-81.061 ; Cass crim. 26 February 2014 (3 judgements: appeal nb. 13-86.631; appeal nb. 13-87.888; appeal nb. 13-87.846, Bull. crim. nb. 59-60), obs. Fonteix, Recueil Dalloz 2014 p. 610; Roets, Recueil Dalloz 2014, p. 702; Herran, JPC 2014, nb. 538. 68 Mainly the rule on international cooperation provided the CPP but also any rule of procedural law. 69 CE 29 September 1989, req. nb. 100-373. 70 CE 24 June 1977, req. nb. 01.591, Astudillo Calleja. 71 CE 27 February 1987, req. nb. 78-665, Fidan, concl. Bonichot Recueil Dalloy 1987, p. 305; obs. Waquet et Julien-Laferrière, Recueil Dalloz 1988, Somm., p. 134. 72 Cass. crim. 29 October 2008, appeal nb. 08-85.513, Bull. crim. nb. 217, obs. Demarchi, AJ Pénal 2009, p. 79. Mayer (2001), pp. 325–331, spec. p. 329. 73 CE 8 November 1995, req. nb. 167547, Dalloz 1996, somm. 112, obs. F. Julien-Laferrière.

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judicial cooperation.74 Consequently, no direct references to constitutional law can be found in the case law of courts providing judicial review of foreign requests for cooperation. The only difference with domestic proceedings theoretically concerns the office of the Court of Cassation when stating on appeal against the opinion of the investigative chamber concerning a foreign request for extradition (remedy against ex ante judicial protection): Except if the researched person has agreed to be extradited by French authorities (Art. 696-14 § 2 CPP), the opinion of the investigative chamber may be challenged before the Court of Cassation (Art. 696-15 § 5 CPP). The wording of Art. 696-15 § 5 reduces the scope of judicial review to “procedural defects that would deprive the opinion of the essential requirements for its legal existence” (vices de forme de nature à priver cet avis des conditions essentielles de son existence légale). In earlier decisions, the Court of Cassation refused to review the opinion of the investigative chamber concerning its substantial grounds.75 Nowadays, however, it fully reviews whether the investigative chamber properly dealt with the arguments of the defence concerning the substantial conditions of extradition.76

3.3.1.3

International Law

French courts obviously apply international treaties dedicated to cooperation in criminal matters, such as extradition, mutual assistance and enforcement of prison sentences. They also take into account international treaties on specific criminal offences, for instance the United Nation Convention Against Corruption of 2003, while deciding on a foreign request.77 Finally, as there is no limitation regarding the legal standards they are entitled to apply in the context of international judicial cooperation, French courts duly take international treaties on the protection of human rights into consideration, especially in cases relating to extradition or the execution of a European arrest warrant. The treaty they refer to far the most frequently is the European Convention on Human Rights. It is possible to quote many decisions of the Court of Cassation applying this Convention, such as those concerning the right not to be subjected to torture,

74 See Cons. Const., Decision Nb. 2014-427 QPC of 14 November 2014, AJ Pénal 2015, p. 86, obs. Chassaing. 75 Cass. crim. 2 December 1986, appeal nb. 86-95.400; Cass. crim. 17 March 1987, appeal nb. 86-96.812. 76 Cass. crim. 4 January 2006, appeal nb. 05.86.258, Bull. crim. nb. 6; Cass. crim. 29 October. 2008, appeal nb. 08-85.713, Bull. crim. nb. 217; Cass. crim. 15 November 2016, appeal Nb. 16-85.335, published. 77 Cass. crim. 11 June 2008, appeal Nb. 07-87.319, Bull. crim. NB. 145, obs. Finielz, RSC 2008, p. 932; obs. Lavric, Recueil Dalloz 2008, Actualité juridique p. 2082; Royer, AJ Pénal 2008, p. 422.

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inhuman or degrading treatment or punishment (Art. 3 ECHR);78 the right to liberty or security (Art. 5 ECHR);79 the right to fair trial (Art. 6 ECHR);80 the legality principle (Art. 7 ECHR);81 or the right to private and family life (Art. 8 ECHR).82 It, of course, happens that the protection of several of these rights are at stake in the same case.83 Moreover, French courts do sometimes refer to the International Covenant on Civil and Political Rights.84 The Conseil d’Etat also largely refers to international treaties on the protection of human rights while measuring the legality of an extradition decree. It regularly applies the European Convention on Human Rights in cases where the requesting state has not abolished the death penalty,85 where the person has been condemned in absentia86 or when the right to a fair trial87 or several rights protected by the ECHR are at stake.88 In other circumstances, however, the Conseil d’Etat only quotes the ECHR in general terms (without mentioning any precise article of this Convention) and develops its own principles concerning, for instance, a case in which the researched person suffers health problems of extreme gravity that prohibit her/his extradition.89 Moreover, the Conseil d’Etat refuses to enforce the right to private life and family derived from Art. 8 ECHR in the matter of extradition, even though it 78

Cass. crim. 21 November 2018, appeal nb. 18-86101, published; Cass. Crim. 7 February 2017, appeal nb. 16-86877, Published; Cass. crim. 4 March 2015, appeal nb. 14-87.380, Bull. crim. nb. 46. 79 Cass. crim. 10 May 2012, appeal Nb. 11-87.328, Bull. crim. nb. 116, obs. Lesclous, Droit pénal 2012, chron. nb. 7; Cass. crim. 8 June 2016, appeal Nb. 16-81912, Bull. crim. nb. 175. 80 Cass. crim. 19 January 2016, appeal Nb. 15-81.041, Bull. crim. nb. 14; Cass. crim. 12 July 2016, appeal Nb. 16-84.000; published; Cass. crim. 19 October 2016, appeal Nb. 16-81.920, published; Cass. crim. 19 September 2017, appeal Nb. 17-82.317, published; Cass. crim. 2 May 2018, appeal Nb. 18-80.860, published; Cass. crim. 22 January 2019, appeal Nb. 18-82.633, published; Cass. crim. 11 December 2019, appeal Nb. 19-80.181, inédit. 81 Cass. crim. 26 February 2014, appeal nb. 13-87.888, Bull. crim. NB. 16. 82 Cass. crim. 15 November 2016, appeal Nb. 16-85.335, published; Cass. crim. 10 April 2019, appeal bb. 18-83.709, published; Cass. crim. 19 February 2019, appeal Nb. 18-82.495, inédit. 83 Cass. crim. 4 June 2019, appeal Nb. 18-86.964, inédit; Cass. crim. 4 March 2015, appeal nb. 14-87.380, Bull. crim. nb. 46. 84 Cass. crim. 26 February 2014, appeal nb. 13-87.888, Bull. Crim. nb. 16 (refers to art. 15-1 of the ICCPR); Cass. crim. 6 October 1983, appeal nb.83-93.194, Bull. crim. nb.239 (refers to art. 15-2 of the ICCPR). 85 CE 27 February 1987, req. nb. 78665; Fidan; CE 6 November 2000, req. nb. 214777, Nivette (reference to art. 1 protocole 6 to the ECHR) concl. De Silva, RFDA 2001, p. 1037. 86 CE, Ass., 18 March 2005, req. nb. 273714, Battisti; CE 19 January 2019, req. nb. 317125 (the decree does not violate art. 6 ECHR because the law of the requesting State provides for the right of the extradited person to benefit from a new judgement). 87 CE 29 July 1994, req. nb. 152850. 88 CE 14 December 1987, req. nb. 88522, Urizar Murgoitio. 89 Julien-Laferriere (2004), pp. 681–706, spec. p. 700. See CE 13 October 2000, req. nb. 212865; CE 14 November 2011, req. 345258 (the person researched by Turkey suffers paranoid schizophrenia and the requesting State did not give precise and concrete assurance that the he would be medically treated as required by his illness).

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considers the ECHR to be applicable90 and despite the different interpretation of Art. 8 ECHR given by the Court of Cassation.91 References to other treaties protecting the rights of individuals may be mentioned, such as the Geneva Convention Relating to the Status of Refugees of 195192 and the International Covenant on Civil and Political Rights.93 Finally, references to international public order could not be found in the relevant case law.

3.3.1.4

Law of the European Union

References to EU law in the case law of French courts on cooperation in criminal matters are theoretically not excluded, but there are very few examples in practice. Cases in which EU law was applied while cooperation took place between France and a third country to the EU could not be found by the author of this report. An interesting judgment of the Court of Cassation shows that the provisions of the EU Charter of Fundamental Rights may be enforced in France. The case concerns, however, a cooperation instrument of the EU. A Romanian citizen had been recognised as a refugee in Sweden before Romania joined the EU. Later, as Romania became a Member State, he was arrested in Paris because of the execution of a European arrest warrant issued by a Romanian judicial authority on the ground of sexual crimes. For his defence, he argued that Arts. 18 and 19 of the Charter opposed his surrender to Romania. The Court of Cassation dismissed his case but did not deny the applicability of the Charter to the litigation.94 Secondary law of the EU—as, for example, the directives on the rights of the defendant—is theoretically applicable in cases of international cooperation as well as in purely national proceedings, but there are no concrete examples for now.

3.3.2

Judicial Protection and Applicable Standards in the Requesting State

If France is requesting legal assistance, judicial review provided by French courts is mainly based on French law (Sect. 3.3.2.1). The law of the requested state has no meaning in practice (Sect. 3.3.2.2), but the application of fundamental rights embedded in international law and EU law may occur in the future (Sect. 3.3.2.3).

90

CE 19 January 2019, req. Nb. 317125; Cass. Crim. 31 December 2019, req. Nb. 426831. See the case law of the court of cassation mentioned above and D. Rebut, op. cit., nb. 274. 92 CE, Ass., 26 September 1984, req. 62847; CE, Ass., 1st April 1988, req. 85234. 93 CE, Ass., 18 March 2005, req. nb. 273714, Battisti (reference to art. 14 of the ICCPR). 94 Cass. crim. 12 July 2016, appeal nb. 16-84.000, published. 91

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French Law

Readers may be referred to the developments made in the preceding section, dedicated to the case of France being the requested state. French law is applicable without limitation to judicial protection given in the field of international cooperation to any decision taken by a French authority. In this situation, there is no difference to be mentioned compared to purely domestic proceedings. In case the contested decision has been taken by a foreign authority, French courts have no jurisdiction to review it.95 However, in its case law concerning the gathering of evidence, the Court of Cassation elaborated as a principle that French courts have to verify whether the foreign proceedings respected the rights of defence and the general principles of law.96 The court did not elaborate to which legal standards this verification must be realised, but the general principles of French law cannot reasonably be excluded from the scope of the review.

3.3.2.2

Law of the Requested State

French courts are not familiar with reviewing decisions according to foreign law when the decision to grant cooperation was taken by foreign authorities.97 In theory, though, the following problem could arise. When asking a foreign state for the extradition of a person who is suspected to have attempted to commit a crime or to be an accomplice of a crime, French judicial authorities must apply Art. 696-3 § 3 CPP, according to which acts must be punished in the requesting state and in the requested state.98 In case the foreign authorities grant extradition to France although the crime is not punished according to its domestic law—which, of course, is very hypothetical—the extradited person could challenge the extradition before French courts after her/his surrender to France. She/he could ask the court to assess whether the requirements of Art. 696-3 § 3 CPP were fully satisfied by the French authority when formulating its request for extradition and push the judges to verify whether the acts fell under foreign criminal law. Logically, French courts would recognise their jurisdiction to assess the legality of the French decision according to the foreign law, thus strictly applying Art. 696-3 § 3 CPP, as they do so when France is the requested state.99

95 Cass. crim. 21 May 1996, appeal nb. 96-81.112; Bull. crim. nb. 207; Cass. crim. 24 September 1997, nb. 97-83.787, Bull. crim. nb. 311. 96 Cass. Crim. 4 November 1997, appeal nb. 97-83.463, Bull. crim. nb. 366; Cass. crim. 7 June 2017, appeal nb. 16-87.141, published. 97 See Sect. 3.1.2.2. 98 The legal requirement of incrimination of the acts by the requested state does not exist if the person is being researched by the French authorities for the full commission of a crime. 99 Cass. crim. 7 August 2019, appeal nb. 18-84.182, published, obs. Nicaud, AJ Pénal 2019, p. 506.

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3.3.2.3

International Law and Law of the EU

If France is the requesting state, it is difficult to find specific examples of the application of the ECHR and the EU Charter of human rights in case law because judicial review of French judicial decisions to request cooperation is rare in practice and French courts have no jurisdiction to review foreign decisions. One extradition case, though, may be mentioned. A person detained in Latvia while waiting for the decision of the Latvian authorities to grant extradition to France wanted to lodge a remedy against the French arrest warrant on which the extradition request was based. The investigative chamber declared the remedy inadmissible because, according to Art. 696-36 CPP, the person must have been surrendered to France before exercising the remedy. The Court of Cassation decided, however, to quash the decision of the investigative chamber.100 It based its judgment on Art. 5 § 4 of the ECHR.101 Generally speaking, French courts are very familiar with the ECHR—but less familiar with the EU Charter on human rights—and there is no legal reason why provisions of international law or EU law regarding human rights could not be used more frequently in the future.

3.4

Pleading Requirements

The pleading requirements dealt with in this section focus on reasons or grounds for refusing cooperation. In France, these grounds are laid down by law for extradition (Art. 696-4 CPP) and the European arrest warrant (Art. 695-22 to -24 CPP) on one side and the European investigation order (Art. 694-31 to -34 CPP) on the other side. For other cooperation instruments, especially concerning the enforcement of prison sentences, the CPP does not provide any substantial indication. However, French courts may refer to grounds for refusal provided by any international treaty duly ratified by France. Grounds for refusal set up by French law only concern the case where France is the requested state. In the reverse case, it is up to the (foreign) requested state to regulate the procedural conditions under which foreign authorities or the suspected person can successfully invoke a reason for refusing cooperation. In the particular case of ex post judicial review provided by French courts after France has obtained the extradition of the person from another country (Art. 696-36 CPP), French courts are not supposed to assess the application of grounds for refusal by the foreign

100

See Sect. 3.1.2.3.1.2 and Cass. crim. 7 November 2000, appeal nb. 00-85.221, Bull. Crim. nb.329. 101 Art. 5 § 4 ECHR: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

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authorities because they only have jurisdiction to review the correct enforcement of French law. As a general assessment, the CPP does not give any (special) information about the pleading requirements concerning grounds for refusal. As a consequence, common rules of criminal procedural law apply.

3.4.1

Extradition and Execution of a European Arrest Warrant

For the purpose of granting extradition and executing a European arrest warrant, the investigative chamber is the competent authority for ex ante judicial protection. It acts as a full court, which means that a contradictory debate must be held in front of a public audience. In this context, both the public prosecution office and the defendant may provide a reason for refusal. Additionally, the court must raise grounds for refusal ex officio according to the case law of the Court of Cassation.102 When a remedy is exercised against the opinion of the investigative chamber, the Court of Cassation itself may raise grounds for refusal ex officio if they were not brought to court before.103 The party to the process who raises a reason for refusal may demonstrate that her/ his arguments are well founded and provide appropriate evidence. However, the party invoking a ground for refusal does not “bear the burden of proof” in the sense that the investigative chamber must, if necessary, order a complementary investigation aiming at providing a sufficient answer to the allegations raised by the parties (Arts. 695-14 § 1 CPP and 696-15 § 3, second sentence, CPP for extradition; Art. 696-31 § 3, second sentence, and § 4, second sentence, CPP for the execution of a European arrest warrant). The requesting state may have to provide more information about its national law and practices to the investigative chamber, which can refuse to grant the request if it finds that the ground for refusal is not met after the required information has been transmitted to it. In reviewing the opinion of the investigative chamber in extradition cases, the Court of Cassation may quash it on the ground that the chamber did not enquire, for example, whether the arguments of the parties, according to which the researched person was in danger of being discriminated against by the authorities of the foreign state on the grounds of her/his race, religion, nationality or politic opinion, were valuable.104 The investigative chamber itself must assess whether the arguments of

102

Cass. crim. 23 September 2015, appeal nb. 15-83.991, Bull. crim. nb. 229, note Brach-Thiel, AJ pénal 2016. 41-42; Cass. crim. 7 August 2019, appeal nb. 18-84.182, published, obs. Goetz, Dalloz Actualités, 3 September 2020. 103 Cass. crim. 5 August 2004, appeal nb.04-84.511, Bull. crim. nb. 139. 104 Cass. crim. 16 September 2009, appeal nb. 09-83.267, Bull. crim. nb. 156. See also Cass. crim. 15 September 2010, appeal nb. 10.84-449, obs. Girault, AJ Pénal, 2011, p. 141.

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the parties have to be taken into consideration or not. It cannot solely rely on the information given by the requesting state.105 Neither may the investigative chamber purely rely on reports published by the Council of Europe about the enforcement of human rights in the requested state. In a case concerning a request by Albany where the researched person feared to suffer violations of procedural guarantees and of her/ his rights to defence, the Court of Cassation quashed the decision of the investigative chamber, which solely based its refusal to grant extradition on reports by the Council of Europe. The Court of Cassation requires the investigative chamber to order a complementary investigation in order to assess whether risks of violations of rights are real in a specific case.106 In contrast, if the investigative chamber is able to provide a detailed answer to the arguments of the parties based on its own analysis of the alleged risks, the Court of Cassation would be convinced that the investigative chamber sufficiently took the grounds for refusal into consideration. For example, in a case in which the defendant was arguing that his right to defence would not be respected in Chile if France would extradite him to this country, the investigative chamber indicated that the competence to try the defendant had recently been transferred from the military courts to the ordinary courts. It gave detailed information about the particular guarantees of the rights of defence legally recognized by these courts. The chamber did not take into consideration evidence derived from reports of NGOs concerning allegations of risks of torture and abuses because it argued that they were too vague and insufficiently documented. The Court of Cassation upheld the opinion of the chamber on this part of the merits.107 Similar case law is to be found in situations where French judicial authorities have to decide on the execution of a European arrest warrant. For instance, the violation of the right to family life protected by Art. 8 ECHR is an allegation to which the investigation chamber must give a detailed answer108 (even though no legal provision—neither in the Framework Decision on the European arrest warrant nor in the French legal order—recognises a ground for refusal based on a violation of the right to family life). The same requirements apply to the investigative chamber with regard to the optional ground for refusal based on the regular and non-interrupted residence of the researched person on French territory, where the European arrest warrant has been issued for executing a prison sentence. Refusal to execute the European arrest warrant is admissible only after the investigative chamber has enquired whether the requesting state agrees to file a request with the French authorities for the prison sentence to be enforced in France109—and the

105

Cass. crim. 29 October 2008, appeal nb. 08-85.713, Bull. crim. nb. 217, obs. Demarchi. Cass. crim. 21 October 2014, appeal nb. 14-85.257, Bull. crim. nb. 213, obs. Brach-Tiel, AJ Pénal 2015, p. 52; obs. Boccon-Gibod, RSC 2014, p. 798. 107 Cass. crim 7 August 2019, appeal nb. 18-86.297, published. 108 Cass. crim. 12 May 2010, appeal nb. 10-82.746, Bull. crim. nb. 86, obs. Lasserre-Capdeville, AJ Pénal 2010, p. 408. 109 Cass. crim. 10 August 2016, appeal nb. 16-84.723, published, obs. Fonteix, Dalloz Actualités 13 September 2016. 106

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authorities of the requesting state give an answer to the investigative chamber (the absence of answer cannot be interpreted as a negative answer and, thus, as being an obstacle to executing the prison sentence in France instead of surrendering the researched person through the execution of the European arrest warrant).110 Concerning the ex post judicial protection offered by the ultra vires remedy against the decree granting extradition, lodged before the Conseil d’Etat, it is in principle for the claimant to prove the alleged illegality. The person concerned by the extradition, therefore, has to provide evidence that a ground for refusal must be recognised.111 However, as the procedure is inquisitorial, the high administrative court could ask the administration (here the Ministry of Justice) to justify the decree in case the arguments of the claimants are sufficient to cast doubt upon its legality.112

3.4.2

Execution of a European Investigation Order

Concerning the European investigation order, the existence of grounds for refusal provided by the CPP is assessed either by the chief prosecutor or the investigative judge (Art. 694-30 CPP) after a request for cooperation of a foreign country has been presented to them. In contrast to the investigative chamber, these judicial authorities are not courts, which means that no trial before an audience precedes their decision to grant cooperation and that no contradictory debate takes place. Moreover, they operate at an early stage of the proceedings, at a time when the defendant mostly ignores that transnational proceedings are running against her/him. It is therefore impossible for the defendant to invoke grounds for refusal. Consequently, assessment on these grounds solely depends on the appreciation of the foreign request by the French judicial authority having jurisdiction.

3.5

Guarantees Given by the Requesting State (Zusicherung)

If the request for cooperation concerns the surrender of a person—and only in this type of cooperation—and the authorities of the requested state fear that the person will suffer a violation of international human rights standards in the requesting state, these authorities may subject the granting of cooperation to what French lawyers call a reservation (réserve). On the basis of a reservation, the requesting state must

110

Cass. crim. 11 July 2017, appeal nb. 17-83.796, published, obs. Fucini, Dalloz Actualités 25 September 2017. 111 CE 25 October 2018, req. nb. 419865, 2nd and 7th united chambers; CE 14 February 2001, req. nb. 22071, Rihards X. 112 Waline (2018), nb. 684 (5 ).

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provide the requested state with guarantees (assurances) that it will not expose the person to a violation of her or his rights. In the absence of such guarantees, the requested state would have to refuse to grant extradition. Considering France as the requested state, it is a common practice for the government to introduce a reservation in an extradition decree, especially in case extradition is required for the purpose of judgment and the death penalty is applicable to the researched person in the requesting state. The Conseil d’Etat recognised the validity of such a reservation for the first time in 1993,113 although the Law of 10 March 1927—dealing with extradition at that time—did not give the Prime Minister the option to condition extradition on guarantees given by the requesting state. When the Law of 1927 was included in the CPP in 2004, the codification of the extradition law did not change the status of reservations. Neither does the CPP recognise the possibility for the government to use reservations, nor does it provide for an appropriate legal regime. The same is true concerning the execution of a European arrest warrant by French judicial authorities: no provision of the CPP deals with reservations in the execution of a European arrest warrant. However, the reason for this silence is different. Because the Member States of the EU have to trust each other according to the principle of mutual trust, there is no room, at least in principle, for creating rules on reservations in the law. In practice, though, even between Member States of the European Union, a communication between the states issuing and executing a European arrest warrant regarding the future treatment of the researched person in the issuing state proves to be necessary. It concretely takes a different form because the executive of a state is empowered to give guarantees, whereas it does not intervene in cooperation between Member States of the EU. The Court of Cassation refers to Art. 695-33 CPP114 in obliging investigative chambers to verify, by way of requiring more information from the issuing state, whether the researched person could suffer a violation of her/his rights in that state.115 For instance, in a case in which the Portuguese authorities had issued a European arrest warrant against an Iranian citizen, a refugee in France, for the execution of an 8-year prison sentence, the defendant argued that Portugal could expulse him to Iran after the enforcement of the sentence. The investigative chamber gave a positive opinion on the extradition, arguing that his status as a refugee was enough to protect him against expulsion to Iran. The Court of Cassation overturned this opinion, criticising the investigative chamber for not having asked the Portuguese authorities for complementary information in the application of Art. 695-33 CPP. The relevant information relates to the treatment of the defendant by the Portuguese authorities with regard to Art. 3 of the 113

CE 15 October 1993, Mme Aylor, note Chappez, JDI 1994, p. 413; Espuglas, JCP 1994. II.22257; obs. Maugüe and Touvet, AJDA 1993, p. 848; concl. Vigouroux, RFDA 1993, p. 1116. 114 Art. 695-33 reads: “If the investigative chamber considers that the information sent by the issuing Member State in the European Arrest Warrant is insufficient to allow it to rule on the surrender, it requests the judicial authorities of the aforesaid State to provide the necessary complementary information, to arrive no later than ten days from the request”. 115 Lelieur (2017), nb. 355–357.

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ECHR and the 1951 Refugee Convention of Geneva116 after he would have served his sentence in Portugal. Only if the Portuguese authorities informed their French colleagues that the defendant is not in danger of being expulsed to Iran according to Portuguese law and practices may the investigative chamber decide to execute the European arrest warrant. The following developments only concern the case of extradition, where France requires a guarantee in the true sense of the term prior to granting cooperation to the requesting state. As no French legal provision regulates guarantees given by the requesting state, the Conseil d’Etat developed general principles as to the requirements concerning such guarantees. In doing so, it only provided elements concerning cases where France is the requested state. There is no case law—not even by the judicial courts—about France giving guarantees to a foreign state in order to obtain the extradition of someone. Moreover, French scholars have reserved low interest to the question of guarantees in the context of extradition.117

3.5.1

Legal Nature, Requirements and Effects

A guarantee is a diplomatic engagement of a state towards another state. The legal regime of a guarantee therefore relates to public international law. The Conseil d’Etat set up several requirements for the effectiveness of a foreign guarantee in the French legal order so that the French Government can grant extradition, although a legal ground for refusal would theoretically apply (Sect. 3.5.1.1). Additionally, when authorising extradition ex ante, the investigative chamber may subject its authorisation to the condition that the requesting state gives appropriate assurance to the French Government (Sect. 3.5.1.2).

3.5.1.1

Requirements and Effects

In its first decisions, the high administrative court required guarantees to bind not only the executive of the requesting state but also its courts. For instance, if Turkey requests extradition for the judgment of a person for a crime to which the death penalty is not applicable but Turkish courts are in the position to change the legal qualification of the facts and finally sentence the person to death, the French Government must refuse to grant extradition. It cannot grant it with the reservation that the legal qualification given to the facts in the cooperation request remains

116

Cass. crim. 7 February 2007, appeal nb. 07-80.162, Bull. crim. nb. 39, obs. Girault, Dalloz 2007, Actualités juridiques p. 799; obs. Royer, AJ Pénal 2007, p. 188. 117 Some authors consider that the text of art. 696-4, 6 CPP (ground for refusal in case the penalty is contrary to the French public order) justifies the systematic refusal to grant extradition (in other words, guarantees are not necessary), Huet and Koering-Joulin (2005), nb. 249.

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unchanged. This reservation is ineffective because it only binds the Turkish Government, whereas Turkish courts are free to choose the appropriate legal qualification according to their national criminal law. The Conseil d’Etat adds that the reservation cannot bind Turkish courts in the absence of an extradition treaty between France and Turkey.118 However, in a later case concerning an extradition request by Algeria, the Conseil d’Etat refused to validate a similar French reservation on the ground that it did not bind Algerian courts, despite the existence of a FrancoAlgerian extradition treaty.119 In later decisions, the Conseil d’Etat validated reservations in decrees granting extradition according to which the requesting state—the United States—must assure that its courts would not pronounce a death penalty or the competent authorities would not enforce the penalty in case the courts would sentence the extradited person to death. It is important to note that, in these cases, the general prosecutor of the county (for instance Dallas, Texas) where the judgment of the person would take place had committed himself/herself to the French Government not to impose the death penalty against the researched person. Additionally, the US embassy gave an assurance to the French Government that, according to the Texan Code of Criminal Procedure, Texan courts could not pronounce the death penalty if the prosecutor had not required it. Under these conditions, the Conseil d’Etat was satisfied that the person would not be subject to a treatment contrary to the French public order and Art. 3 of the ECHR if she was surrendered to the United States.120 Not only has the Conseil d’Etat ruled on guarantees given by the requesting state. In reviewing the ex ante authorisation of the investigative chamber, the Court of Cassation may also set up conditions for the admissibility of a French reservation in an extradition decree. If the guarantees given by the requesting state are not sufficient, the investigative chamber must declare the extradition illegal and it cannot authorise the French Government to grant the request. In a case where the government of the special administration of Hong Kong had requested the extradition of a Paraguay citizen who was accused of drug trafficking, the French Government received guarantees from the Hong Kong authorities that they would not surrender this person to China. According to Chinese law, drug trafficking may be punished with death. The investigative chamber was satisfied with these guarantees. However, the Court of Cassation noticed that Hong Kong is not a sovereign state. Moreover, Hong Kong has not concluded an extradition treaty with France, although this would have been possible according to the fundamental law of Hong Kong. The Court of Cassation declared the extradition illegal because the request did not emanate from a sovereign state. Probably the argument of the defendant,

118

CE 27 February 1987, req. Nb. 78665, Fidan. CE 14 December 1987, req. nb. 85491. 120 CE, Ass., 15 October 1993, req. nb. 144590, Aylor, concl. Vigouroux, RFDA 1993, p. 1116; obs. Espuglas, JCP ed. G. 1994.II.22257; obs. Maugüe and Touvet, AJDA 1993, p. 848. See also CE 8 April 1998, req. nb. 186539 and req. nb. 186510; CE 6 November 2000, Nivette, req. nb. 214777; CE 12 July 2001, req. nb. 227747; CE 13 December 2002, req. nb. 242395. 119

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according to which the guarantees given by Hong Kong not to surrender the person to China were not opposable to China—being the sovereign state in the name of which the authorities of Hong Kong were acting—played an important role in its assessment.121 Guarantees given by the requesting state may also concern the application of the right to a fair trial.122 If, for example, the researched person has been judged in absentia in the requesting state, France may take assurance from that state that the person will have the right to a new trial after her/his surrender. The Conseil d’Etat considered it sufficient that the law of the requesting state (Romania, before it became a Member State of the EU) offers an unconditional right to a new trial.123 Guarantees may also concern an appropriate medical treatment in the requesting state. The Conseil d’Etat was not satisfied that the Turkish authorities gave general information on medical care for detained persons in Turkish prisons in a case where the researched person was suffering from paranoid schizophrenia. It annulled the extradition decree on the ground that extradition is contrary to the ECHR in case of an extremely serious health problem.124 It finally results from the case law of the Conseil d’Etat that France, as the requested state, is not obliged to accept guarantees of the requesting state. On the opposite, the Conseil d’Etat obliges the government to refuse to grant extradition in cases where the guarantees are too vague.125 The French Government does not have, according to case law, to monitor the case after having granted the request. However, the Ministry of Foreign Affairs keeps attention on sensitive cases. In a case where the French Government was authorised to extradite a Russian citizen who had joined illegal armed forces in Syria to Russia, the Russian authorities had given guarantees that French diplomatic agents could visit the person in his detention place in order to verify whether the Russian detention agents treat him in accordance with Art. 3 ECHR.126

3.5.1.2

Role of the Investigative Chamber

In an interesting case, the European Court of Human Rights condemned France for violating Art. 3 ECHR by granting a Moroccan request for extradition.127 After this, Moroccan authorities gave the French Government guarantees that the person’s

121

Cass. crim. 14 February 2012, appeal nb. 11-87.679, Bull. crim. nb. 41. CE 31 December 2019, req. nb. 426831 (the Russian authorities gave assurance to France that the person would have the right of assistance by a lawyer). 123 CE 19 January 2009, req. nb. 317125. 124 CE 14 November 2011, req. nb. 345258. 125 CE 14 November 2011, req. nb. 345258. 126 CE 31 December 2019, req. nb. 426831. 127 European Court of Human Rights (ECtHR), decision of 30 May 2012, Application no. 25393/10 (Rafaa v. France). 122

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detention conditions would comply with human rights standards. The French Prime Minister, therefore, took a new extradition decree. On request of the defendant, the Conseil d’Etat had to review the legality of this second extradition decree. It annulled it on the ground that the investigative chamber, which has jurisdiction to authorise the extradition, did not have the chance to formulate its opinion based on the new facts—that is to say, the guarantees given by the Moroccan authorities. In other words, the whole procedure for granting the request must start over and the investigating chamber must re-examine the case on the basis of the guarantees given by the requesting state.128 As a result, guarantees are submitted to a “double-check”, as the legal conditions for extradition, first by the courts of judicial order, then by the ones of administrative order.

3.5.2

Legal Remedies Against the Violation of a Guarantee

The French legal order does not provide a legal remedy enabling extradited persons to lodge a complaint for violation of the guarantees given to France by the requesting state. In other words, it is not possible to obtain the annulment of an extradition decree on the ground that the reservation clause was not satisfied by the authorities of the requesting state. According to Lombois (1979), if an international court or an international arbitration court would rule that a violation has been committed and would choose to sanction it with restitutio in integrum, the requesting state would have to surrender the extradited person back to the requesting state.129 French law does not likewise provide a remedy accessible to a person surrendered to France on the ground that France violated a guarantee it had given to the requested state.

3.6

Effectiveness of Judicial Review

3.6.1

General Requirements

3.6.1.1

Access to Information

If France is the requested state, the person concerned receives information about the foreign request—only in the matter of extradition and a European arrest warrant— before French authorities take a decision on whether or not to grant it. Not later than 48 h after the person has been arrested based on grounds stated in the request, he/she must be presented to the general prosecutor, who first verifies her/his identity. The

128 129

CE 22 December 2017, req. nb. 408811. Lombois (1979), nb. 461.

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general prosecutor then informs the person “in a language that he/she understands, of the existence and the content of the extradition request or of the European arrest warrant”.130 There is no legal obligation imposed on the general prosecutor to communicate the legal basis of the request under foreign law to the person concerned. However, the general prosecutor must inform the person of her/his right to be immediately assisted by a lawyer.131 The lawyer has immediate access to the file132 and may freely communicate with her/his client. A translation of the foreign request is not explicitly provided either, but the duty imposed on the general prosecutor to inform the person of the existence and content of the request in a language that he/she understands necessitates her/him to make use of the services of a translator. In other words, the person will at least be orally informed of the content of the request. In case the request relates to the gathering of evidence, French law does not include legal rules on information of the person concerned. Mostly the request is executed in France without this person being informed of its existence.133 In the matter of the execution of a European investigation order, however, the CPP rules that information on the remedies enabling the person to complain about the foreign request’s execution measures must be given to her/him provided that information is foreseen by law for these measures to be contested in domestic procedures.134 This rule aims at transposing Art. 14 of Directive 2014/41 on the European investigation order into French law. However, it misses its objective as even for domestic procedures the CPP does not provide persons subjected to an intrusive measure (like wiretapping for instance) with information on the existence of that measure until the person is officially indicted in a domestic proceeding. For this reason, in a transnational proceeding, the person affected by an intrusive measure enforced in France on the basis of a foreign request is usually not informed of the existence of the measure, unless he/she is later prosecuted in France.135 Requests concerning the execution of a prison sentence present a slightly different situation. In case the requesting state does not belong to the EU and the sentence cannot be automatically recognised because the foreign penalty would be more severe than an equivalent French penalty, the tribunal has to decide on the request. The person concerned therefore receives information on the foreign request at trial, but the law does not provide any additional detail. For instance, there is no express obligation on the French authorities to indicate the legal basis of the request under

Art. 696-10 § 1 CPP for extradition; art. 695-27 § 1 CPP for the execution of a European arrest warrant. 131 Art. 696-10 § 2 CPP for extradition; art. 695-27 § 2 CPP for the execution of a European arrest warrant. 132 Art. 696-10 § 3 CPP for extradition; art. 695-27 § 5 CPP for the execution of a European arrest warrant. 133 Cass. crim. 11 June 2008, appeal nb. 07-87.319, Bull. crim. nb. 145. 134 Art. 694-41 § 1 CPP. 135 See for example Cass. crim. 12 mars 2014, appeal Nb. 13-87.254, Bull. Crim. Nb. 80. 130

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foreign law.136 In case the sentence can be automatically recognised, the chief prosecutor is the competent authority. The law does not oblige her/him to give any special information to the person concerned before it takes her/his decision.137 If the request emanates from a Member State of the EU, the person concerned receives information about the decision on the request only after the competent authority (the chief prosecutor in case an adaptation of the sentence is not necessary, the president of the criminal court of first instance in the contrary case) has taken it.138 Here, information is meant to allow the person concerned to appeal the decision. The law does not provide for any detail as to the duty to inform the person about the request itself, but the person concerned has the right to be assisted by a lawyer in the course of the appeal proceedings, and access to the file is guaranteed to the lawyer, as before any criminal court under French law.139 If France acts as the requesting state, in general, no obligation is made to French authorities to inform the person concerned of the request before the authorities of the requested state have decided whether to grant the request or not. For instance, the person targeted in an international database (like the Schengen Information System II) through a request for provisional arrest need not be informed about the request. The only exception concerns the case where French judicial authorities intend to issue a request for the execution of a prison sentence in another Member State of the EU. Here, the law provides that in case the person concerned is in France, the representative of the public ministry must hear her/him in order to receive her/his oral or written observations on the request before transmitting it to the foreign authorities.140 The legal provision does not give details about which concrete information must be given to the person concerned. However, the prosecutor cannot seriously receive an observation on the request if he/she has not provided minimal information on that request. In case the person is already in the requested state, the French public ministry must ask the competent authority of that state to hear the person on her/his behalf.141 Finally, if the public ministry decides to transmit the request to the foreign authorities, he/she must inform the person about that decision in a language that he/she understands. Several elements concerning the execution of the prison sentence in the requested state must also be brought to her/his knowledge.142 However, access to the file is not provided.

136

Art. 728-5 CPP. Art. 728-3 CPP. 138 Art. 728-48 CPP. 139 Art. 728-48 to 51 CPP. 140 Art. 728-17 § 1 CPP. 141 Art. 728-17 § 2 CPP. 142 Art. 728-18 CPP. 137

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Suspensory Effect of the Remedy

Considering France as the requested state, remedies exercised against a foreign request for extradition or against a European arrest warrant have a suspensory effect according to French law. In case of extradition, obviously, the surrender of a person is excluded until ex ante judicial protection has been exercised before the investigative chamber. Moreover, the remedy that may be exercised before the Court of Cassation (in case the person has not consented to her/his extradition) against the authorisation of the investigative chamber, according to Art. 696-15 § 4 CPP, has a suspensory effect.143 In contrast, the request for the annulment of the extradition decree taken by the Prime Minister does not automatically have a suspensory effect. However, the person concerned may ask the Conseil d’Etat to take an emergency decision according to which the decree cannot be executed until it has exercised judicial control. In practice, the government does not execute an extradition decree when the person concerned exercises a remedy against it. Meanwhile, the Conseil d’Etat traditionally strives to rapidly rule on the case.144 In cooperation cases between Member States of the EU, the appeal against the decision of the investigative chamber to order the execution of a European arrest warrant before the Court of Cassation (in case the person has not consented to the European arrest warrant) similarly has a suspensory effect.145 As to the consequences of the inadmissibility of the request for extradition or the European arrest warrant, they are limited to the absence of surrender of the person and her/his release in case he/she was detained. It is not possible for this person to claim damages for wrongful detention because the legal reparation of undue detention is limited to the case of pretrial custody.146 Concerning the gathering of evidence, the remedies that may be exercised against measures executing a foreign request in France are ex post remedies in the sense that they intervene after the measure has been enforced. They may provoke the annulment of the measure with the consequence that evidence derived from it cannot be exploited in later proceedings. Therefore, the suspensory effect concerns the transmission of evidence to the requesting state. However, this rule is expressly recognised by law only in case of a European investigation order. The French investigative chamber has the discretion to decide, as long as it has not ruled on the legality of these measures, whether the suspensory effect applies. It must decide so if the transmission of evidence would cause serious and irreversible damage to a person.147 Additionally, the CPP indicates that the remedies against a European investigation order issued for the execution of an investigative measure in France do not have a suspensory effect on the execution of the measure unless suspension is

143

Cass. crim. 26 January 1967, appeal nb. 66-93.512, Bull. crim. nb. 41; CE 7 February 1986, req. nb. 70470. Brach-Thiel (2018), nb. 358. 144 Julien-Laferriere (2000), nb. 415 (pp. 517–518). 145 Art. 569 CPP. 146 Art. 149 CPP. 147 Art. 694-42 § 2 CPP.

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provided by law. This rule seems to be the transposition of Directive 2014/41 (Art. 14 § 5). Its application is probably rare as there is no ex ante judicial protection concerning requests on the transnational gathering of evidence in France. Finally, the appeal against a judgment on the execution of a foreign prison sentence in France has no suspensory effect according to the law in case a non-Member State of the EU formulated the request.148 The CPP does not provide the same rule when the request emanates from a judicial authority of a Member State of the EU so that the suspensory effect applies as in any other appeal case.

3.6.1.3 3.6.1.3.1

Additional Procedural Safeguards Dual Representation by Defence Counsel

Generally speaking, the right to be assisted by a lawyer is clearly recognised by the CPP in cooperation cases where France is the requested state.149 However, national law does not provide help in finding a lawyer in the foreign state in order to avoid dual representation by defence counsel, except in the case of execution of a European arrest warrant. In France, since 2016,150 Art. 695-27 § 3 CPP requires the general prosecutor to inform a person about her/his right to be assisted in the issuing state by a lawyer of her/his choice or a court-appointed lawyer. If the person decides to formulate a request in this sense, this request must be transmitted to the judicial authorities of the issuing Member State. The omission of the provision requiring French judicial authorities to operate this transmission has significant consequences according to the Court of Cassation. It “necessarily violates the right of defence” and triggers, therefore, the annulment of the proceedings.151

3.6.1.3.2

Translation and Interpretation

In case the person concerned by a cooperation request understands neither the language in which the request was written in the requesting state nor the language into which it was translated when submitted to the requested state, a translation of the request would be useful for this person to be informed of the exact reasons and content of the request. However, French law does not generally recognise the right of 148

Art. 728-5, 2nd sentence CPP. For the surrender of a person, see art. 696-10 § 2, 696-13 § 4 and 696-15 § 2 CPP for extradition and art. 695-27 § 2 and 695-30 § 3 CPP for the execution of a European arrest warrant. For the execution of a prison sentence, see art. 728-5, 728-48 § 1 and 728-49 § 2 CPP. For the gathering of evidences, see Art. 173 CPP. 150 Law nb. 2016-731 of 3rd June 2016. Among other things, the law transposes directive 2013/48/ EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings (. . .). 151 Cass. crim. 24 May 2017, appeal Nb. 17-82655, published. 149

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the person to be provided with such a translation.152 On one side, Directive 2010/64/ EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings was transposed into French law in 2013.153 On the other side, its provisions were not introduced into the specific regulation of international cooperation but only included in the very general preliminary article of the Code of Penal Procedure. According to § 3 of this provision, if a suspected or a prosecuted person does not understand the French language, he/she has the right to be assisted by an interpreter and, “unless he/she is an expressive and informed waiver of this right, to the translation of the file materials which are essential to her/his defence and to the fairness of the procedure and which must, for this reason, be presented or notified to her/him according to this present code”. Unfortunately, the code only provides for the presentation or notification of the cooperation request to the concerned person in case of an extradition request154 and a European arrest warrant.155 Support for translating a legal remedy is not provided either. The right to be assisted by an interpreter during the proceedings is better guaranteed than the right to a translation of file materials. Section III, § 3 of the preliminary article of the CPP very broadly recognises this right to any suspected or prosecuted person, including concerning talks with the lawyer that present a direct link with interrogation or a court audience. Legal provisions concerning extradition and the execution of a European arrest warrant reiterate the recognition of this right at a different stage of the proceedings.156

3.6.2

Ineffectiveness of Ex Post Facto Judicial Review?

Ex post facto judicial review is the usual form of judicial protection in the field of gathering of evidence in France. For this reason, the ineffectiveness of judicial protection can be seen in this matter. In addition, the question of effectiveness may arise in extradition cases when France is the requesting state on one side and in the execution of prison sentences on the other side.

152

Cass. crim. 21 September 1984, Bull. crim. nb. 274, appeal nb. 84-93.943, Bull. crim. NB. 274. Law nb. 2013-711 of 5th August 2013, transposing among other things directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. 154 Art. 696-11 CPP. 155 Art. 695-28 CPP. Consequently, art. 3 § 6 of Directive 2010/64/EU that requires the authorities of the executing State of an European arrest warrant to provide the concerned person with a translation of the European arrest warrant is effective under French law. 156 Art. 696-10 § 2 and 696-13 § 4 CPP for extradition; art. 695-27 § 2 and 695-30 § 3 CPP for the execution of a European arrest warrant. 153

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3.6.2.1

France as the Requesting State

Concerning the gathering of evidence, two situations must be differentiated (they both imply that the competent authority to execute the request is the investigating judge; otherwise, no judicial review takes place at all). If it was for the French courts to declare that the decision on which the request is based was illegal, the consequence of this illegality is the annulment of the decision, provided that the party concerned by the illegality is in a position to prove that he/she has suffered prejudice because of the violation of the law. In case the rights of defence have been violated, the existence of prejudice is presumed by the French courts. The annulment has important consequences. It concerns not only the decision itself but also all measures that are based on it (fruit of the poisonous tree doctrine). The case file materials concerning these measures must be cancelled and removed from the file. It means that evidence provided by these measures cannot be used in criminal proceedings. As these rules are entirely derived from provisions dealing with domestic cases, the matter of transferring the information resulting from the execution of the request back to the requested country is simply not regulated. It is not probable that such a transfer would happen in practice. The situation in which the courts of the requested state declare the granting of the request to be illegal (most probably according to their domestic law) is more precarious. No provision of the CPP deals with cooperation cases with non-Member States of the EU. Case law does not either offer an example where a person prosecuted in France has asserted that evidence provided against her/him in international cooperation could not be exploited in French proceedings because of an irregularity assessed by foreign courts. It is reasonable to assume that French courts would not validate such a request, especially on the ground that foreign law and foreign decisions do not bind them. In cooperation matters with Member States of the EU, in contrast, a legal provision regulates the situation. Its existence can be traced back to Art. 14 § 7 of the Directive on the European investigation order. Article 694-24 CPP provides: “The fact that the investigative measure carried out in the state of execution was successfully contested before the authorities of that state and according to the law of that state does not trigger the annulment of the evidence transferred to the French judicial authorities, but this evidence cannot be the only foundation for the condemnation of the person.” In other words, evidence derived from the illegal execution of the request may be exploited in France, but additional proofs must be presented for guilt to be declared. In extradition cases, Art. 696-36 CPP provides for ex post judicial review.157 Annulment of the extradition, however, only comes into consideration if the illegality is derived from a violation of French rules on extradition. The Court of Cassation has confirmed that an irregularity concerning the application of the law of the

157

See Sect. 3.1.2.3.1.2.

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requested state has no influence on the validity of the extradition.158 The annulment request must be motivated and must be submitted with a delay of ten days after the prosecutor has advised the person of her/his rights to exercise this remedy—the advice itself must take place immediately after the person has been incarcerated as a consequence of her/his surrender to France.159 The Court of Cassation was asked whether the delay of ten days, cumulated with the motivation requirement of the annulment request, was long enough with regard to the rights of defence. It considered that the right to a fair trial according to Art. 6 ECHR is not infringed by these requirements because the court deciding on the annulment request has an obligation to raise violations of the legal rules on extradition on its own motion.160 Finally, according to Art. 696-38 CPP, if the extradition is annulled, the surrendered person, if not reclaimed by the requested state, must be freed. He/she cannot be prosecuted for the act that had justified the extradition or acts preceding the extradition unless, not before 30 days after her/his release, he/she has been arrested on French territory.

3.6.2.2

France as the Requested State

Concerning the gathering of evidence, not the decision to execute the foreign request but only the measures executing this request are subject to judicial review. If the French judicial authorities have executed a foreign request in violation of French law and annulment is recognised by French courts before evidence has been transferred to the requesting state, this transfer will not happen. After annulment, the case file materials are cancelled and removed from the file so that they cannot be exploited by any judicial authorities. As French courts refuse to decide on the legality of measures after the minutes concerning these measures have been transferred to the requesting state, no judicial review at all takes place in this situation. If case law would become more open in the future to extend judicial review to, for example, the determination of the legality of the measures on copies of the minutes, it would be convenient to subject the transfer of evidence to the condition that the evidence must be returned to France if French courts finally find out that it was illegal. No provision in French law, however, contains such a rule at the moment. Lastly, in case France is requested to execute a prison sentence by a non-Member State of the EU, the judgment of the tribunal of first instance must be executed although an appeal has been lodged.161 No provision of the CPP deals with the question of whether France must send the person back to the requesting state in case the execution of the request is finally considered illegal by the higher courts.

158

Cass. crim. 21 May 1996, appeal nb. 96-81.112, Bull. crim. nb. 207; Cass. crim. 24 September 1997, appeal nb. 97-83.787, Bull. crim. nb. 311. 159 Art. 696-36 § 4 CPP. 160 Cass. crim. 22 January 2019, appeal nb. 18.82-633, published. 161 Art. 728-5, 2nd sentence CPP.

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However, it is impossible to keep someone in prison if there is no sanction involving deprivation of liberty against her/him. Therefore, it is very likely that French authorities would send the person back to the requesting state.

References Aubert B (2004) Les recours en matière d’entraide pénale. In: Apprendre à douter. Questions de droit, Questions sur le droit, Etudes offertes à Claude Lombois. Pulim, Limoges, pp 621–638 Beauvallet O (30 April 2010) “Entraide judiciaire internationale” (Art. 694 to 694-9 CPP), JurisClasseur Procédure pénale. LexisNexis, Paris Brach-Thiel D (2018) Extradition. In: Répertoire de droit pénal et de procédure pénale. Dalloz, Paris Ghica-Lemarchand C (2003) La commission rogatoire internationale en droit pénal. Revue de science criminelle et de droit pénal comparé:33–44 Guery C (2019) Commission rogatoire. In: Répertoire de droit pénal et de procédure pénale. Dalloz, Paris Huet A (2006) “L’extradition de droit commun. Les innovations de la “loi Perben II” du 9 mars 2004”. In: Le droit pénal à l’aube du troisième millénaire. Mélanges offerts à Jean Pradel. Cujas, Paris, pp 1075–1084 Huet A, Koering-Joulin R (2005) Droit pénal international, 3rd edn. PUF, Paris Julien-Laferriere F (2004) L’application de la Convention européenne des droits de l’homme à la procédure française d’extradition passive. In: Apprendre à douter. Questions de droit, Questions sur le droit, Etudes offertes à Claude Lombois. Pulim, Limoges, pp 681–706 Julien-Laferriere F (2000) Droit des étrangers. PUF, Paris Labayle H (1995) Le “passage du gué”, Observations sur le contrôle juridictionnel du Conseil d’Etat en matière d’extradition. RFDA, p 109 Lelieur J (2017) Mandat d’arrêt européen. In: Répertoire de droit pénal et de procédure pénale. Dalloz, Paris Lombois C (1979) Droit pénal international, 2nd edn. Dalloz, Paris Mayer D (2001) La prévision de la sanction dans l’extradition. In: La sanction du droit, Mélanges offerts à Pierre Couvrat. PUF, pp 325–331 Rebut D (2014) “Le nouveau contrôle de l’arrêt de la chambre de l’instruction en matière d’extradition. In: Droit répressif au pluriel: droit interne, droit international, droit européen, droits de l’homme: liber amicorum en l’honneur de Renée Koering-Joulin. Anthemis, Bruxelles, pp. 635–648 Rebut D (2019) Droit pénal international, 3rd edn. Dalloz, Paris Waline J (2018) Droit administratif, 27th edn. Dalloz, Paris

Juliette Lelieur Professor of Criminal Law, University of Strasbourg, France.

Chapter 4

Country Report “Germany” Martin Böse and Maria Bröcker

4.1 4.1.1

Overview Judicial Protection in the Criminal Justice System

The German constitution (Basic Law—Grundgesetz (GG)) guarantees a right to an effective remedy before a tribunal as an integral part of the rule of law.1 Should any person’s rights be violated by public authority, he or she may have recourse to the courts (Art. 19 para. 4 GG). Thereby, the constitution contains a fundamental right to effective and comprehensive judicial protection against acts of public authority.2 In addition, the German constitution provides for a general right to access to justice that forms part of the rule-of-law principle in connection with fundamental rights (Art. 2 para. 1 GG).3 The constitutional principle guarantees access to the courts, an examination of the factual and legal issues in a formal procedure and a binding decision of the court.4 See Federal Constitutional Court of Germany (BVerfG), decision of 2 March 1993 – 1 BvR 249/92, official court reports (BVerfGE) 88, p. 118, para. 21. 2 BVerfG, decision of 12 November 1958 – 2 BvL 4/56, BVerfGE 8, p. 274, para. 196; decision of 2 May 1984 – 2 BvR 1413/83, BVerfGE 67, p. 43 para. 40; decision of 30 April 1997 – 2 BvR 817/90, 2 BvR 728/92, 2 BvR 802/795, 2 BvR 1065/95, BVerfGE 96, p. 27 para. 47; decision of 5 December 2001 – 2 BvR 527/99, BVerfGE 104, p. 220 para. 33. 3 See BVerfG, decision of 20 June 1995 – 1 BvR 166/93, BVerfGE 93, p. 99 para. 29; decision of 2 March 1993 – 1 BvR 249/92, BVerfGE 88, p. 118 para. 20. 4 See BVerfG, decision of 30 April 2003 – 1 PBvU 1/02, BVerfGE 107, p. 395 para. 17; see as well in this regard BVerfG, decision of 29 October 1975 – 2 BvR 630/73, BVerfGE 40, p. 272 para. 11; decision of 16 May 1995 – 1 BvR 1087/91, BVerfGE 93, p. 1 para. 28; permanent jurisdiction. 1

M. Böse · M. Bröcker (*) University of Bonn, Bonn, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_4

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The right to an effective remedy requires a potential violation of the appellant’s right; the violation of mere interests is not sufficient.5 This legal position of the appellant may be derived from a fundamental right or a constitutional guarantee (e.g. principle of equal treatment) but may also be based upon statutory acts. In the latter case, the legislature indirectly determines the conditions and scope of the right to judicial protection.6 The right to judicial protection applies to any act or omission of a public authority interfering with individual rights.7 The constitutional right to legal remedies (Art. 19 para. 4 GG) applies irrespective of whether the authority has a margin of discretion, provided that the exercise of this discretion may have violated the individual interests protected by law.8 However, the right to effective judicial protection does not require that the exercise of discretion is subject to unlimited judicial review but allows for restraints of the court’s jurisdiction, depending on the nature of the measure to be examined and its legal and procedural framework.9 On the other hand, if the legal provision does not protect any legal interests of the person affected, it cannot be relied upon to challenge the discretionary decision; in case of doubt, an interpretation that gives prevalence to the fundamental rights shall be given preference.10 The aforementioned constitutional rights and principles apply to transnational criminal proceedings; there are no special features compared to purely domestic criminal proceedings in this respect. In particular, the German Constitutional Court expressly stated that the decision granting extradition triggers the right to legal recourse under Art. 19 para. 4 GG.11 The same applies to individual rights originating from statutory law, such as the Act on international cooperation in criminal matters (Gesetz über die Internationale Rechtshilfe in Strafsachen (IRG)). The corresponding provisions must be interpreted in conformity with the constitution, the right to a legal remedy (Art. 19 para. 4 GG) in particular.12

BVerfG, decision of 27 April 1971 – 2 BvR 708/65, BVerfGE 31, p. 33 para. 20; decision of 9 January 1991 – 1 BvR 207/87, BVerfGE 83, p. 182 para. 44. 6 BVerfG, decision of 31 May 1988 – 1 BvR 520/83, BVerfGE 78, p. 214 para. 34; decision of 9 January 1991 – 1 BvR 207/87, BVerfGE 83, p. 182 para. 44. 7 BVerfG, decision of 18 June 1997 – 2 BvR 483/95, BVerfGE 96, p. 100 para. 86 with further references. 8 BVerfG, decision of 18 June 1997 – 2 BvR 483/95, BVerfGE 96, p. 100 para. 86 with further references. 9 BVerfG, decision of 8 July 1982 – 2 BvR 1187/80, BVerfGE 61, p. 82 para. 77; decision of 17 April 1991 – 1 BvR 419/81, BVerfGE 84, p. 34 para. 47. 10 BVerfG, decision of 18 June 1997 – 2 BvR 483/95, BVerfGE 96, p. 100 para. 86 with further references. 11 BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 paras. 101 f. 12 See also Schomburg et al. (2020a), introduction para. 197. 5

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Institutional and Procedural Framework of Transnational Criminal Proceedings

In Germany, the procedural framework of international cooperation in criminal matters is divided into court proceedings where the court decides on the admissibility of granting a request (Zulässigkeitsverfahren) and proceedings in which the competent authority takes a final decision on a foreign request (Bewilligungsverfahren).13 This system, and the judicial phase in particular, aims at providing preventive judicial protection (ex ante) and thereby deviates from the ordinary procedural framework of judicial review (ex post).14 The judicial protection concerning incoming as well as outgoing requests for mutual legal assistance is governed by the Act on international mutual assistance in criminal matters (Gesetz über die Internationale Rechtshilfe in Strafsachen (IRG)) unless international treaties foresee specific and deviating rules on judicial protection (§ 1 para. 3 IRG). International cooperation with EU Member States is governed by specific provisions of the eight to the tenth part of the IRG.

4.1.2.1

Incoming Requests

An incoming request for mutual assistance to the Federal Republic of Germany triggers an administrative procedure resulting in a decision to grant or deny assistance. The positive decision is called granting decision (Bewilligung). In the Federal Republic of Germany, the decision on requesting assistance as well as for granting assistance requested by a foreign state forms part of foreign relations (Art. 32 GG) and, therefore, lies with the federal government.15 Accordingly, the Federal Ministry of Justice, with the consent of the Foreign Office, decides upon incoming and outgoing requests (§ 74 para. 1 IRG). The Federal Ministry of Justice, however, has delegated the exercise of some of its powers to the Federal Office of Justice (Bundesamt für Justiz), which may decide upon requests for transmitting information from criminal records and requests related to international arrest notices (see § 74 para. 1 sent. 3 IRG).16 In addition, the exercise of federal competence has been partially delegated to state (Länder) governments (i.e. the Ministries of Justice), which may in turn delegate this power to the subordinate authorities (§ 74 para.

See also Federal Constitutional Court of Germany (BVerfG), decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 para. 109. 14 Schomburg et al. (2020a), introduction para. 205. 15 BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 paras. 311 f.; Grotz (2014b), § 74 para. 12. 16 See the Act on the establishment and the tasks of the Federal Office of Justice (Gesetz zur Errichtung und der Regelung der Aufgaben des Bundesamtes für Justiz) of 17 December 2006 (BGBl. I, p. 3171), and the circular of the Ministry of Justice (Übertragungserlass des Bundesministeriums der Justiz) of 2 January 2007 – II B 6 BfJ. 13

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2 IRG). These options have been broadly used, which is why the judicial authorities of the states often act as the competent authorities regarding decisions on granting a request for mutual assistance; in particular, the state governments (their Ministries of Justice) have been vested with the competence to decide on incoming and outgoing requests that are based upon an international treaty that allows for direct communication between the foreign state and the competent state authority.17 As far as cooperation with another EU Member State is concerned, the competence to grant a request has been further delegated to the public prosecution service at the Higher Regional Court (Generalstaatsanwaltschaft beim Oberlandesgericht) or at the District Court (Staatsanwaltschaft beim Landgericht).18 The latter may also decide on any other incoming and outgoing requests related to mutual legal assistance in the gathering of evidence (except for the transfer of witnesses and convicted persons in transit, §§ 64, 65 IRG).19 The competent authority decides on the respective request taking into account foreign policy at its broad discretion.20 While the IRG does not explicitly regulate discretionary power regarding mutual assistance, the granting authority still has to respect international treaties, which may limit its discretionary power. In general, the stronger the cooperation obligations under international law are, the narrower is the margin of discretion in deciding on a request. In addition, humanitarian factors may also influence the exercise of discretion.21 The decision to grant mutual legal assistance is distinguished from the execution of measures necessary to provide mutual legal assistance (Vornahme). As a rule, these measures (e.g. search and seizure) are governed by the rules on domestic criminal proceedings (lex loci); however, German authorities may comply with formalities specified in the foreign request (lex fori) even if domestic law does not provide for similar procedures (Art. 8 Second Additional Protocol of the European Convention on Mutual Assistance in Criminal Matters).22 To some extent, the rules on coercive measures in the framework of international cooperation (e.g. arrest and detention in extradition proceedings, §§ 15 ff. IRG) differ from the corresponding provisions in domestic proceedings (§ 112 ff. Strafprozessordnung (StPO)); in

17 See the jurisdictional agreement of the Federal Government and the state (Länder) governments (Zuständigkeitsvereinbarung) of 28 April 2004 (Federal Bulletin [Bundesanzeiger]) p. 11494. 18 See e.g. the circular on the competences in international cooperation in criminal matters in the state of Northrhine-Westphalia of 16 December 2016 (Ausübung der Befugnisse im Rechtshilfeverkehr mit dem Ausland in strafrechtlichen Angelegenheiten, Berichtspflichten und die Zusammenarbeit im Europäischen Justiziellen Netz sowie mit transnationalen Verbindungsstellen - Gemeinsamer Runderlass des Justizministeriums - 9350 - III. 19 -, des Ministeriums für Inneres und Kommunales - 424 - 57.01.48 - und des Finanzministeriums - S 1320 - 5 - V B 5/ S 770 - 4 - V A 1 - vom 16. Dezember 2016), JMBI. NRW 2017, p. 74. 19 See the previous notes. 20 See Böhm (2017b), para. 724. 21 Schierholt (2020b), § 12 para. 29. 22 Johnson (2016), § 59 para. 16.

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particular, the competent authority does not assess whether the person to be extradited is strongly suspected of a crime. As has been mentioned above, the underlying rationale of the admissibility procedure is to check whether granting assistance to the foreign state complies with domestic law and, thereby, to provide judicial protection ex ante. This model applies to extradition and the enforcement of foreign sentences, whereas admissibility proceedings are usually not part of proceedings on mutual legal assistance. Thus, the procedural framework of judicial protection depends on the specific type of mutual legal assistance. In extradition proceedings, the IRG provides for judicial protection ex ante according to §§ 12, 13 IRG.23 Extradition may only be granted if a court has ruled it admissible. Due to the complexity of extradition proceedings, the admissibility procedure is assigned to the Higher Regional Courts (Oberlandesgerichte).24 In its assessment, the court must examine whether formal and substantive requirements for extradition (request, double criminality) are met and no mandatory grounds for refusal (e.g. death penalty, political or military offence, §§ 5 ff. IRG; see also the ordre public clause, § 73 IRG) apply.25 With the waiver of the person sought, extradition may be granted without a court decision being necessary (simplified extradition procedure, § 41 IRG). The foregoing observations clearly reveal that the framework of extradition proceedings rely on judicial protection ex ante (admissibility procedure) rather than a judicial review (ex post) of the granting decision. This system is rooted in the traditional understanding that foreign policy and general policy aspects form part of the core area of executive power and therefore are exempt from judicial review.26 Accordingly, admissibility proceedings ensure the judicial protection of the person concerned (ex ante) without interfering with the competent authority’s margin of discretion; as the exercise of this discretion is related to public interests only, there is no need for a judicial review of the granting decision.27 This traditional view has been severely criticised, and this criticism has been taken up in the German Constitutional Court’s judgment on the European arrest warrant.28 The court argued that certain refusal grounds, as foreseen by the framework decision on the European arrest warrant (e.g. surrender for life-long imprisonment), clearly involve individual rights and interests and therefore require the granting authority to balance these rights with public interests (including foreign policy aspects); the decision not to invoke the corresponding ground for refusal interferes with the fundamental rights of

23

Böhm (2017b), para. 704. Hackner (2020a), introduction IRG para. 58. 25 Hackner (2020a), introduction IRG para. 58. 26 BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 paras. 101 and 109. 27 BVerfG, decision of 19 October 1966 – 1 BvR 607/66, GA 1967, p. 111; Vogler (1981), pp. 418 ff. 28 BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273. 24

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the person to be surrendered and, thus, must not be exempt from judicial review.29 Therefore, the lack of an effective remedy against the decision on granting extradition to a Member State infringes the constitutional right to an effective legal remedy (Art. 19 para. 4 GG).30 As a consequence of the German Constitutional Courts’ judgment, the German legislator had to revise the procedural framework of judicial review in extradition proceedings. In order to allow the court to assess whether the competent authority has exercised its discretion correctly, the two-staged procedure (admissibility decision, granting decision) is supplemented by a preliminary decision of the granting authority.31 The granting authority (the prosecutor general at the Higher Regional Court) shall indicate whether it intends to invoke optional grounds for refusal (§ 83b IRG) prior to the court’s decision on admissibility, and the envisaged decision of the competent authority to grant the extradition request is then subject to review (§ 79 para. 2 IRG). If the Higher Regional Court finds that the competent authority has not exercised its discretion correctly, the granting authority has to decide on the matter once again, taking into account the legal opinion of the Higher Regional Court.32 If the competent authority decides to refuse extradition, the decision is final (§ 79 para. 1 IRG).33 This procedural framework abides by the constitutional requirements under Art. 19 para. 4 GG. As the law provides for preventive judicial protection of the envisaged granting decision (ex ante), there is no need for a legal remedy against the final decision on extradition that merely implements the preliminary decision (ex post). In contrast to the prior implementation, the legislator avoided a provision that expressly exempts the granting decision from judicial review and, thereby, acknowledged that there might be exceptional cases where the final decision interferes with the fundamental rights of the person to be surrendered and, therefore, must be subject to judicial review.34 In 2010, the Federal Administrative Court confirmed this view and stated that the review of the final granting decision in such exceptional cases fell within the jurisdiction not of administrative courts but of the Higher Regional Court that had issued the admissibility decision (§ 13 IRG).35

BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 paras. 101, 113. BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 paras. 101, 113. 31 BT-Drucks. 16/1024, p. 13; Higher Regional Court Stuttgart, decision of 26 October 2006 – 3 Ausl. 52/06, Neue Juristische Wochenschrift 2007, p. 613 (614); Higher Regional Court Karlsruhe, decision of 20 December 2006 – 1 AK 46/06, Neue Juristische Wochenschrift 2007, p. 617 (618); Higher Regional Court Karlsruhe, decision of 11 May 2007 – 1 AK 3/07, Neue Juristische Wochenschrift 2007, p. 2567 (2568); Higher Regional Court Karlsruhe, decision of 13 March 2007 – 1 AK 28/06, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2008, p. 376 (377). 32 Higher Regional Court Stuttgart, decision of 6 March 2007 – 3 Ausl. 52/06, Neue Juristische Wochenschrift 2007, p. 1702 (1704). 33 Böse (2012), § 79 paras. 17, 22. 34 BT-Drucks. 16/2015, p. 12. 35 Federal Administrative Court of Germany, decision of 18 May 2010 – BVerwG 1 B 1.10, official court reports (BVerwGE) 137, p. 52 paras. 9 ff. 29 30

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Even though the Constitutional Court emphasised that it did not rule on the right to judicial review of the decision granting extradition to third states,36 the reasoning of the judgment may be applied to traditional extradition proceedings, too. In 2015, the Constitutional Court held that judicial protection in the framework of admissibility proceedings (§ 12 IRG) is not sufficient as far as elements of the granting decision could not have been examined by the court; in the case, the competent authority did not merely grant extradition to the USA but also consented to the subsequent surrender of the applicant to Turkey.37 The recent decision of the Federal Administrative Court suggests that the review of the granting decision falls within the jurisdiction of the Higher Regional Court, too.38 Requests for enforcement of foreign judgments imposing custodial sentences provide for a similar mechanism. The District Court (Landgericht) first has to decide on the enforceability of a foreign judgment and to adapt it to the domestic sanctioning system (so-called exequatur decision, §§ 54, 55 IRG). On that basis, the competent authority (the Ministry of Justice) will give its final decision on the request (§ 56 IRG), and the foreign sentence is enforced by the public prosecution service (§ 57 IRG). Unlike the person wanted for extradition, the convicted person may have the interest to serve his or her sentence in Germany and, thus, to challenge the competent authority’s decision not to grant a request for enforcement. Accordingly, the Constitutional Court held that the decision of the public prosecution service (i.e. the authority in charge of the enforcement of sentences) not to initiate proceedings on the transfer of the convicted person to Germany must be subject to judicial review (Art. 19 para. 4 GG).39 In this case, the convicted person may file a complaint to the prosecutor general and, if the decision is upheld, challenge the final decision before the Higher Regional Court (§§ 23 ff. Einführungsgesetz zum Gerichtsverfassungsgesetz (EGGVG)).40 If the foreign judgment has been rendered in another EU Member State, the procedural framework has been modified in analogy to the rules on the execution of European arrest warrants: the public prosecution service at the District Court takes a preliminary granting decision (§ 84e IRG), and the decision not to invoke grounds for refusal is reviewed by the District Court in its exequatur decision (§§ 84g, h IRG). The decision to refuse the enforcement of the foreign sentence is final but can

BVerfG, decision of 18 July 2005 – 2 BvR 2236/04, BVerfGE 113, p. 273 para. 107. BVerfG, decision of 9 June 2015 – 2 BvR 965/15, juris (paras. 24–25). 38 Administrative Court München, decision of 15 January 2019 – M 30 E 18.5442, juris (para. 14); see also BVerfG, decision of 9 June 2015 – 2 BvR 965/15, juris (paras. 21 ff.). 39 BVerfG, decision of 18 June 1997 – 2 BvR 483/95, 2 BvR 2501/95 und 2 BvR 2990/95, BVerfGE 96, p. 100, para. 115; BVerfG, decision of 17 October 2002 – 2 BvR 1029/02, Neue Zeitschrift für Strafrecht 2003, p. 335. 40 Higher Regional Court Frankfurt/Main, decision of 21 February 2008 – 3 VAs 46/07, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2008, p. 174; Hackner and Schierholt (2017), para. 157, with further references. 36 37

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be challenged by the convicted person if he or she has applied for a transfer of enforcement (§ 84e para. 3 IRG). As far as the enforcement of financial penalties is concerned, the legislature created a special procedural framework for judgments rendered in another EU Member State. The person concerned may file an objection against the decision granting enforcement within two weeks, and the corresponding provisions of the Code of Criminal Procedure (Strafprozessordnung (StPO)) regarding legal remedies apply accordingly (§ 87f para. 4 IRG). In case the granting authority does sustain the objection, the competent local court (Amtsgericht) decides according to § 87h para. 1 IRG, thus providing downstream legal protection. The procedure for any other type of legal assistance in criminal proceedings (such as the gathering of evidence) is slightly more complicated. In this regard, the IRG does not provide for a general mechanism of judicial protection ex ante (admissibility procedure).41 Instead, the procedure follows the domestic law on criminal proceedings as § 59 para. 3 IRG states that legal assistance may be granted only insofar as German courts and authorities might render mutual legal assistance to each other. If the requested measure (searching business premises or private homes) requires a court decision (a search warrant),42 such authorisation is required in mutual legal assistance proceedings, too.43 Thereby, the law ensures that the thresholds and procedural safeguards in the framework of international cooperation correspond to those in domestic criminal proceedings.44 Thus, the rules on domestic criminal proceedings apply accordingly, including those on judicial protection. 45 The person affected by the requested investigative measure may challenge the legality of the measure under the same conditions as a measure carried out in the framework of a domestic investigation (§ 77 para. 1 IRG; §§ 98, 101, 304 ff. StPO; §§ 23 ff. EGGVG).46 If the granting authority determines that the requirements for mutual legal assistance are met, the law enforcement authority responsible for the measures necessary to execute the request for legal assistance is bound by this assessment (§

See also Lagodny and Zimmermann (2020), § 61 para. 1. See § 105 paras. 1 and 2 of the German code of criminal procedure (Strafprozessordnung, StPO): “(1) Searches may be ordered only by the judge and, in exigent circumstances, also by the public prosecution office and the officials assisting it (section 152 of the Courts Constitution Act). Searches pursuant to Section 103 subsection (1), second sentence, shall be ordered by the judge; in exigent circumstances the public prosecution office shall be authorized to order such searches. (2) Where private premises, business premises, or enclosed property are to be searched in the absence of the judge or the public prosecutor, a municipal official or two members of the community in the district of which the search is carried out shall be called in, if possible, to assist. The persons called in as members of the community may not be police officers or officials assisting the public prosecution office.” 43 Hackner (2020a), introduction IRG para. 77. 44 Trautmann and Zimmermann (2020), § 59 para. 55. 45 In particular, the regulations of the Criminal Procedure, § 77 para. 1 IRG. 46 Vogel and Burchard (2011), § 77 paras. 50 ff. 41 42

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60 IRG). If, however, the measure has to be carried out or authorised by a court and if this court takes the view that the necessary requirements have not been fulfilled, the court shall request a decision from the Higher Regional Court (§ 61 para. 1 IRG). This provision is based upon the rationale that a court shall not be bound by the legal assessment of the executive. The Higher Regional Court may also rule upon an application by the public prosecution service or upon an application by a person claiming that his or her rights would be infringed by the transfer of assets or evidence to the requesting state (§ 61 para. 1 IRG). The decision of the Higher Regional Court is binding on those courts and authorities responsible for rendering the legal assistance (§ 61 para. 3 IRG), and legal assistance may not be granted if the Higher Regional Court rules that the requirements for granting legal assistance have not been complied with (§ 61 para. 4 IRG). The mechanism comes close to the admissibility procedure in extradition cases. However, in contrast to judicial protection ex ante in extradition proceedings, it requires a request of the lower court or the person concerned. If these procedural requirements are not met (yet), judicial protection is ensured by the court competent for a judicial review of the decision to take measures necessary to grant legal assistance to the requesting state: the court has to assess both the legality of the measure and the admissibility of legal assistance (Integrationslösung).47 If the competent court considers the legal assistance inadmissible, it shall refer the matter to the Higher Regional Court (§ 61 IRG).48 If granting legal assistance does not require additional measures, the person concerned may challenge the decision to grant legal assistance (e.g. transmitting information from criminal records) before the Higher Regional Court (§§ 23 ff. EGGVG).49 In principle, the provisions implementing the European investigation order (§§ 91a ff. IRG) are based upon the traditional regime of judicial protection (§ 91i, § 61 IRG).50 Similar to the implementation of other EU cooperation instruments (e.g. the European arrest warrant), the procedural framework has been supplemented by a review of the competent authority’s decision not to invoke refusal grounds, to postpone the execution of the European investigation order or to have recourse to a different type of investigative measure (§ 91i para. 1 IRG, §§ 91e, 91f IRG). Thereby, the legislature acknowledged that the exercise of discretion by the granting authority must be subject to judicial review but left open the question whether this reasoning shall apply to the traditional regime of mutual legal assistance as well (see supra with regard to extradition proceedings).51

BVerfG, decision of 16 July 1987 – 2 BvR 682/87, in: Eser et al. (1989), no. 148d. Higher Regional Court Dresden, decision of 30 November 2010 – OLG Ausl 74/10, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2011, p. 146; Johnson (2012), § 61 para. 15. 49 Vogel and Burchard (2011), § 77 para. 58. 50 See the explanatory memorandum, BT-Drucks. 18/9757, p. 30 (78). 51 See the explanatory memorandum, BT-Drucks. 18/9757, p. 30; in favour of a legal remedy against the granting decision: Vogel and Burchard (2017), Vor § 1 paras. 300, 301. 47 48

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Outgoing Requests

As far as outgoing requests are concerned, the competent authority is determined by the same rules as for incoming requests (§ 74 paras. 1 and 2 IRG). To a large extent, the exercise of this competence has been delegated to the governments of the states (Länder).52 As far as cooperation with another EU Member State is concerned, the competence to grant a request has been delegated to the public prosecution service (Staatsanwaltschaft beim Landgericht).53 Thereby, the public prosecution service has acted as the judicial authority competent for issuing a European arrest warrant until the Court of Justice held that the German public prosecution service did not qualify as a judicial authority because it could be subject to instructions by the Ministry of Justice and, therefore, lacked the institutional framework necessary for the effective judicial protection of the rights of the individual by an independent body.54 As a consequence, European arrest warrants are no more issued by the public prosecution service on its own but based upon authorisation by the District Court. The court decision is to be based upon the power to issue an (international) arrest notice (§ 131 para. 1 StPO) and/or the power to adopt court decisions necessary for the enforcement of the sentence imposed by the foreign court (§ 457 para. 3 StPO).55 Even though the court’s assessment referred to the European arrest warrant,56 the strict concept of “judicial authority” developed by the court may also apply to other cooperation instruments such as the European investigation order.57 Therefore, the public prosecution service may tend to apply for a court authorisation for issuing a European investigation order, wherever possible, in order to avoid its execution to be refused for formal grounds. In principle, the decision to request a foreign state to extradite a person wanted for an offence is not subject to judicial review because, according to the prevailing opinion, any interference with the fundamental rights of the person wanted for

52

See the jurisdictional agreement of the Federal Government and the state (Länder) governments of 28 April 2004 (Federal Bulletin [Bundesanzeiger] p. 11494), which entered into force on 1 May 2004 and the jurisdiction regulations of the individual federal states. 53 See e.g. the circular on the competences in international cooperation in criminal matters in the state of Northrhine-Westphalia of 16 December 2016 (Ausübung der Befugnisse im Rechtshilfeverkehr mit dem Ausland in strafrechtlichen Angelegenheiten, Berichtspflichten und die Zusammenarbeit im Europäischen Justiziellen Netz sowie mit transnationalen Verbindungsstellen - Gemeinsamer Runderlass des Justizministeriums - 9350 - III. 19 -, des Ministeriums für Inneres und Kommunales - 424 - 57.01.48 - und des Finanzministeriums - S 1320 - 5 - V B 5/ S 770 - 4 - V A 1 - vom 16. Dezember 2016), JMBI. NRW 2017, p. 74. 54 Court of Justice of the European Union (CJEU), judgment of 27 May 2019, Case C-508/18 and C-82/19 (OG and PI), paras. 64 ff. 55 Higher Regional Court Zweibrücken, decision of 11 July 2019 – 1 Ws 203/19, Neue Juristische Wochenschrift 2019, p. 2869; Higher Regional Court Hamm, decision of 1 August 2019 – 2 Ws 96/19, juris; for the position of the government see also BT-Drucks. 19/11017, p. 25. 56 This has been emphasised in the opinion of AG Campos Sánchez-Bordona of 30 April 2019, Case C-508/18, OG and PI, paras. 37 ff. 57 Ambos (2019), p. 734.

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extradition (arrest, detention, surrender) will not be a result of the request but due to the autonomous decision of the requested state only.58 In contrast, the issuing of an arrest notice (§ 131 StPO) and the alert in the Schengen Information System (SIS) can be challenged before the local court (§ 98 para. 2 sent. 2 StPO) whose decision is subject to appeal by the District Court (§ 304 StPO).59 Furthermore, the domestic arrest warrant on which the request for extradition is based may be challenged before the District Court, too (§ 304 StPO).60 Likewise, the procedural framework of mutual legal assistance does not provide for legal remedies against outgoing requests.61 In contrast, the decision on which a request (e.g. for a search warrant) is based is subject to the same remedies as in domestic criminal proceedings (§ 98 para. 2 sent. 2, § 304 StPO). The review, however, is limited to the assessment of the legality of the measure in domestic proceedings and does not extend to the transnational dimension (e.g. request for mutual legal assistance).62 In contrast to requests for extradition and mutual legal assistance, outgoing requests for the enforcement of custodial sanctions require prior authorisation by the Higher Regional Court because the transfer of the convicted person will considerably change the conditions under which the sentence is served (§ 71 para. 4 IRG).63 The Higher Regional Court shall also decide on the admissibility of the enforcement of a custodial sentence in another EU Member State (§ 85a IRG). The court proceedings are triggered by a preliminary granting decision of the public prosecution service (§ 85 IRG). In its assessment, the court shall review whether the requirements for granting a request are met (§ 85c IRG).64 The transfer of enforcement must not be granted unless the court has declared it admissible (§ 85d IRG). The different rules on judicial protection against outgoing requests (extradition and mutual legal assistance vs enforcement of custodial sanctions) seem to originate from the specific risk of human rights violations resulting from a transfer of enforcement. Accordingly, prior court authorisation by an admissibility procedure

58 BVerfG, decision of 25 March 1981 – 2 BvR 1258/79, Neue Juristische Wochenschrift 1981, p. 1154 (1156); Higher Regional Court Celle, decision of 16 April 2009 – 2 VAs 3/09, Neue Zeitschrift für Strafrecht 2019, p. 534 (with regard to European Arrest Warrants); Hackner and Schierholt (2017), para. 61. 59 Higher Regional Court Celle, decision of 16 April 2009 – 2 VAs 3/09, Neue Zeitschrift für Strafrecht 2009, p. 534; Meyer and Hüttemann (2016), p. 426. 60 Meyer and Hüttemann (2016), p. 425; Vogel and Burchard (2017), Vor § 1 para. 295. 61 Higher Regional Court München, decision of 18 October 1974 – 1 V As 67/74, Neue Juristische Wochenschrift 1975, p. 509 (510), with regard to the transfer of proceedings. 62 Federal Court of Justice of Germany (BGH), decision of 5 April 2018 – StB 2/18, juris (paras. 11 f.); Vogel and Burchard (2017), Vor § 1 para. 295. 63 Grotz (2014a), § 71 para. 29. A court decision is not required if the convicted person consents to his transfer to the requested state (§ 2 ÜAG and Art. 2, Art. 3 para. 1 lit. d Convention on the Transfer of Sentenced Persons of 21 March 1983, ETS no. 112), see Hackner and Schierholt (2017), para. 148. 64 Böse (2018b), § 85c para. 1.

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is not foreseen where a foreign state is requested for the enforcement of other sanctions (confiscation, financial penalties).65 However, the need for judicial protection against human rights violations in the state requested for enforcement raises doubts about the argument that outgoing requests are not subject to judicial review because any interference with fundamental rights will result from measures taken by the requested state (see supra with regard to extradition). However, the recent case law of the Court of Justice on the concept of “judicial authority” may have repercussions on the scope of judicial review in extradition proceedings: if the European arrest warrant is not issued by the public prosecutor, but by the local court (§ 131 para. 1 StPO), the court will inevitably have to assess the legality and proportionality of the European arrest warrant, i.e. the transnational dimension of cross-border cooperation.66 The same will apply to other cooperation instruments such as the European investigation order, where the issuing judicial authority must assess the proportionality of its decision and its cross-border dimension.67 Similar to the integrated model of judicial review of the decision on incoming requests (Integrationslösung), judicial review of the outgoing request will merge with the review of the (domestic) decision on the investigative measure on which the request (the order) is based. Finally, a need for judicial review might arise where the competent authority decides not to request or grant a request for legal assistance. This issue is particularly relevant in enforcement proceedings where the convicted person may have an interest in serving a sentence in his or her home country. The granting decision on the transfer of prisoners to or from Germany requires a prior decision of the enforcement authority (the public prosecution service). In its decision, the latter authority has to take into account the convicted person’s interest in his or her re-integration into society and other fundamental rights. Therefore, the decision not to initiate proceedings for the transfer of enforcement must be subject to judicial review on whether the enforcement authority has exercised its discretion correctly (Art. 19 para. 4 GG).68 The convicted person may challenge the decision of the public prosecution service before the Higher Regional Court (§§ 23 ff. EGGVG).69 The final decision of the Ministry not to issue (or grant) a request for the transfer of enforcement, however, is exempt from judicial review insofar as it is based upon general and foreign policy aspects; as far as the decision is based upon the assessment and balancing of the convicted person’s rights and interests, it can be Grotz (2014a), § 71 para. 29. Court of Justice of the European Union (CJEU), judgment of 27 May 2019, Case C-508/18 and C-82/19 (OG and PI) para. 71. 67 See Art. 6 para. 1 lit. a Directive 2014/41/EU of 3 April 2014 on the European Investigation Order, OJ L 13/1. 68 BVerfG, decision of 18 June 1997 – 2 BvR 483, 2501, 2990/95, BVerfGE 96, p. 100 (117 f.); decision of 17 October 2002 – 2 BvR 1029/02, Neue Zeitschrift für Strafrecht 2003, p. 335. 69 Higher Regional Court Hamburg, decision of 17 February 1998 – 2 VAs 11–97, Neue Zeitschrift für Strafrecht 1999, p. 197; Higher Regional Court Frankfurt, decision of 21 February 2008 – 3 VAs 46/07, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2008, p. 174. 65 66

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challenged, too (§§ 23 ff. EGGVG).70 The framework of cooperation with other EU Member States expressly provides for a legal remedy against the decision of the public prosecution service to refuse a transfer of enforcement (§ 84e para. 3 IRG, § 85 para. 5 IRG). Due to the lack of specific rules and consistent case law, it is not entirely clear whether and to what extent these rules and principles apply to extradition and mutual legal assistance accordingly. A Higher Regional Court has assumed its competence to review the decision of the public prosecution service not to initiate a request for the extradition of the applicant (§§ 23 ff. EGGVG),71 whereas an administrative court claimed jurisdiction over the final decision of the government to reject the applicant’s motion to file a request for the extradition of the suspect (§ 40 VwGO).72 Likewise, the views among scholars vary whether it should be a matter for the criminal courts73 or the administrative courts74 to review the decision of the granting authority not to file or grant a request for mutual legal assistance. In any case, the constitutional right to judicial review (Art. 19 para. 4 GG) requires a legal remedy against a decision potentially interfering with fundamental rights (e.g. the right to a fair trial).75

4.1.2.3

Right to Appeal

The rules on legal remedies vary among the different areas of international cooperation in criminal matters. In extradition proceedings, the admissibility decision on incoming requests is not subject to appeal (§ 13 para. 1 sent. 2 IRG). However, if new circumstances arise that may justify a different decision, the Higher Regional Court reviews its decision on the application of the public prosecution service or of the person sought (§ 33 para.1 IRG). Furthermore, the Higher Regional Court may request the Federal Supreme Court (Bundesgerichtshof (BGH)) for a preliminary ruling on legal issues of fundamental significance (§ 42 IRG). The person wanted for extradition may, however, challenge the decision of the Higher Regional Court by filing a constitutional complaint to the German Constitutional Court, (§§ 90 ff.

BVerfG, decision of 14 January 2005 – 2 BvR 162/04, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2005, p. 182; Hackner (2020c), § 71 para. 18. 71 Higher Regional Court Hamm, decision of 15 October 2007 – 1 VAs 79/09; Hackner and Schierholt (2017), para. 61. 72 Administrative Court Köln, decision of 7 December 2010 – 5 K 7161/08, Nordrhein-Westfälische Verwaltungsblätter 2011, p. 114f. 73 Vogel and Burchard (2017), Vor § 1 para. 305. 74 Hackner and Schomburg (2012), Vor § 68 para. 96; see now for the contrary view Hackner (2020d), § 74 para. 26. 75 Rackow (2020), chapter 1 para. 117. 70

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Bundesverfassungsgerichtsgesetz (BVerfGG)). The same rules apply to the execution of European arrest warrants (§ 78 para. 1 IRG).76 As far as outgoing requests are concerned, the person wanted for extradition may challenge the domestic arrest warrant on which the extradition request is based (§ 304 StPO).77 The same applies to the court decision to issue (authorise) a European arrest warrant (§ 131 para. 1 StPO).78 In reverse, the public prosecution service may challenge the decision not to issue a European arrest warrant.79 The court decision on the enforcement of foreign sentences (exequatur decision) may be challenged by the public prosecution service, by the convicted person or, in case of confiscation, by third parties before the Higher Regional Court (§ 55 para. 2 IRG, § 311 StPO); the provision on a preliminary ruling (§ 42 IRG) applies accordingly. The admissibility decision on outgoing requests is not subject to appeal (§ 71 para. 4 sent. 4, § 13 para. 1 sent. 2 IRG). The convicted person, however, may file a constitutional complaint (§§ 90 ff. BVerfGG). The same rules apply to the enforcement of custodial sentences in the European Union (§ 84g para. 3 sent. 3, § 55 para. 2, § 85a para. 2, § 13 para. 1 sent. 2 IRG). In mutual legal assistance proceedings, the Higher Regional Court may rule on the admissibility of granting legal assistance (§ 61 IRG). Admissibility may be initiated by the court competent for rendering legal assistance and also on the application of the public prosecution service or a third party claiming that his or her rights were infringed by the decision to transfer seized objects to the requesting state (§ 61 para. 1 sent. 2 IRG). According to the prevailing opinion, the defendant may not apply for a preliminary ruling of the Higher Regional Court but may have recourse to the legal remedies under the rules on domestic criminal proceedings (§ 98 para. 2 sent. 2, § 304 StPO).80 The admissibility decision is not subject to appeal as it would seem hardly consistent to provide for an appeal in the area of legal assistance whereas such a remedy is not foreseen in extradition proceedings.81 Insofar as judicial protection is granted under the rules on domestic criminal proceedings applicable to measures carried out to comply with the foreign request (Integrationslösung), the corresponding rules on legal remedies apply as well. In general, the decision on the investigative measure may be challenged by an application to the local court (§ 89 para. 2 sent. 2 StPO) or by a complaint to the District Court (§ 304 StPO); the remedy may be filed by the defendant or any other person claiming that his or her rights were infringed by the measure (§ 304 para. 2 StPO). Böse (2012), § 78 para. 15. Böhm and Werner (2014), § 114 para. 53. 78 Schultheis (2019), § 131 para. 20. 79 Böhm and Werner (2014), § 114 para. 53 (domestic arrest warrant); Higher Regional Court Hamm, decision of 1 August 2019 – 2 Ws 96/19 (European Arrest Warrant), juris. 80 Higher Regional Court Hamm, decision of 30 March 1995 – (2) 4 Ausl 352/93, Neue Zeitschrift für Strafrecht 1995, p. 455; Higher Regional Court Stuttgart, 9 November 2015 – 1 ARs 54/15, Strafverteidiger 2016, p. 248; Johnson (2012), § 61 para. 25; for the contrary view see Lagodny and Zimmermann (2020), § 61 para. 16. 81 Johnson (2012), § 61 para. 25. 76 77

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Likewise, the public prosecutor may file a complaint if the court has refused to authorise an investigative measure (e.g. a search warrant). A decision not to initiate a transfer of enforcement may be challenged by the convicted person (§§ 23 ff. EGGVG, § 84e para. 3 IRG, § 85 para. 5 IRG). In extradition proceedings, the decision not to file an extradition request may be filed by the person to be surrendered82 or by the victim.83 The same applies to requests for mutual legal assistance.84

4.2 4.2.1

Subject Matter of Judicial Control International and Internal Dimension of the Granting Decision

In Germany, the decision of whether to grant legal assistance is dealt with separately from the decisions necessary to execute the foreign request. This, however, does not necessarily mean that these issues are addressed in separate proceedings and by different bodies. The question of whether to grant legal assistance to the requesting state (international dimension) requires a corresponding legal basis (Leistungsermächtigung). In the Federal Republic of Germany, the international dimension is addressed in the granting procedure (Bewilligungsverfahren),85 which, in principle, is a (federal) administrative procedure (supra Sect. 4.1.2). Although the Administrative Procedures Act (Verwaltungsverfahrensgesetz (VwVfG)) does not apply to mutual legal assistance proceedings (§ 2 para. 2 no. 2 VwVfG), it is generally accepted that the competent authority must comply with the procedural safeguards under the VwVfG and in particular with provisions either rooted in the rule of law or in constitutional guarantees (e.g. the right to be heard).86 The competence for requesting assistance as well as for granting assistance requested by a foreign state lies with the federal government (§ 74 para. 1 IRG, supra Sect. 4.1.2). The federal government has partially delegated the exercise of this competence to the governments of the states (Länder), which may in turn delegate this power to the subordinate authorities (§ 74 para. 2 IRG, supra Sect. 4.1.2.1). As a consequence, the public prosecution services at the Higher Regional Court (Oberlandesgericht) or at the District Court (Landgericht) often act as the

Higher Regional Court Hamm, decision of 15 October 2007 – 1 VAs 79/09; Hackner and Schierholt (2017), para. 61. 83 Administrative Court Köln, decision of 7 December 2010 – 5 K 7161/08, Nordrhein-Westfälische Verwaltungsblätter 2011, pp. 114f. 84 Rackow (2020), chapter 1 para. 117; Vogel and Burchard (2017), Vor § 1 para. 305. 85 Also see Schomburg et al. (2020b), introduction para. 80. 86 Schomburg et al. (2020b), introduction para. 38; Vogel and Burchard (2017), Vor § 1 para. 267. 82

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competent authorities regarding the decision on granting a request for mutual assistance (supra Sect. 4.1.2.1). As the measures necessary to execute the request (e.g. arrest, detention, search, seizure) usually interfere with fundamental rights, the decision on these measures requires a legal basis, too (Vornahmeermächtigung). The execution of the measures necessary to provide mutual legal assistance is governed by domestic law (lex loci). The requirement of a legal basis is not a particularity of the law on mutual legal assistance proceedings. As a matter of principle, any coercive measure in purely domestic criminal proceedings is subject to this requirement.87 Following the decision to grant legal assistance, the law enforcement authority or the court responsible for rendering legal assistance takes the measures necessary to execute the request; these measures are based upon an autonomous decision.88 This procedure is called execution procedure (Vornahmeverfahren).89 The distinction between the granting of legal assistance and the execution of the foreign request does not necessarily imply a fixed chronological order in the sense that the granting decision must be issued before the necessary compulsory measures are taken. In particular, executive measures (arrest, seizure of evidence) may be ordered before the competent authority gives its final decision on the request, or both decisions may be taken at the same time.90 Admittedly, the decision to grant legal assistance and the decision to take measures necessary for the execution of the foreign request are interlinked: if the law does not provide for a legal basis to grant legal assistance (or if the requirements for such a decision are not met), the measures necessary for the execution of the foreign request must not be taken either because the corresponding measure (and the interference with fundamental rights) cannot be justified by a legitimate aim.91

4.2.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

The separation of the granting procedure (decision on granting legal assistance, international dimension) and the execution procedure (decision on the measures necessary to execute the request, internal dimension), has consequences for the

87

Schomburg et al. (2020b), introduction para. 82. Ahlbrecht (2017), para. 1321. 89 See in general no. 16 ff. Directive for International Cooperation in criminal matters (Richtlinien für den Verkehr mit dem Ausland in strafrechtlichen Angelegenheiten, RiVASt) available at: http:// www.verwaltungsvorschriften-im-internet.de/bsvwvbund_23122016_IIB6935088.htm; Ahlbrecht (2017), para. 1319. 90 Schomburg et al. (2020b), introduction para. 83. 91 Schomburg et al. (2020b), introduction para. 82. 88

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procedural framework of judicial control. As the scope of the procedures varies, judicial control does so, too. Due to the constitutional guarantee of an effective remedy before a tribunal as an integral part of the rule of law (Art. 19 para. 4 GG, supra Sect. 4.1.1), both the decision on granting legal assistance and the measure taken for the execution of a foreign request must be subject to judicial review if the affected person claims them to be in breach of his or her rights.92 As far as the decision to grant legal assistance (Leistung) is concerned, the IRG provides for specific rules on judicial protection ex ante, in particular for extradition and enforcement of sentences (supra Sect. 4.1.2.1). As regards the execution of the foreign request (Vornahme), there is no difference to purely domestic criminal proceedings: the domestic order, such as an arrest warrant or a search warrant, can be challenged by ordinary legal remedies as follows from the general reference to the Code of Criminal Procedure (§ 77 para. 1 IRG, supra Sect. 4.1.2.1). The IRG does not provide for general rules on judicial protection against decisions on granting legal assistance other than extradition and enforcement of foreign sentences. The only provision on judicial protection (§ 61 IRG) has a rather limited scope and deals with the transfer of objects to the requesting state (§ 66 IRG). In this case, a third party claiming that the transfer violates his or her rights may apply for judicial review by the Higher Regional Court (§ 61 para. 1 sent. 2 IRG). In addition, the court competent for the execution of the request or the public prosecution service may ask the Higher Regional Court for a preliminary ruling on whether the prerequisites for legal assistance are fulfilled (§ 61 para. 1 sents. 1 and 2 IRG, supra Sects. 4.1.2.1 and 4.1.2.3). Judicial protection against any other decision on granting legal assistance (other than extradition and enforcement of sentences) is not expressly regulated by the IRG. In order to close this lacuna and to comply with the constitutional right to judicial review (Art 19 para. 4 GG), the person concerned may bring issues related to the international dimension (granting legal assistance – Leistung) before the court competent for the review of the measures taken for the execution of the foreign request (internal dimension – Vornahme); thereby, the judicial review of both decisions will be granted within the same procedure (so-called model of integrated judicial review – Integrationslösung, supra Sect. 4.1.2.3). Therefore, judicial review of the decision to grant legal assistance requires the person concerned to challenge the measure that has been taken to execute the foreign request.93 Since the international dimension is inextricably linked to foreign policy aspects where the government enjoys a wide margin of discretion, judicial control of the exercise of this discretion is limited. In principle, the suggestion as well as the proposition of a request for legal assistance and therefore the declaration of intent under the international law of the Federal Republic of Germany is not subject to judicial review. It is assumed that there is no need for a legal remedy because neither

92 93

Schomburg et al. (2020b), introduction para. 84. Ahlbrecht (2017), para. 1326.

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the legal status of the request nor the request itself interferes with individual rights (supra Sect. 4.1.2.2).

4.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

4.2.3.1

Examining the Lawfulness of the Foreign Request Under Foreign Law

In general, German law does not oblige domestic authorities and courts to assess the lawfulness of foreign requests for mutual legal assistance. In this regard, the German Constitutional Court has stated that decisions of foreign authorities are not subject to review as to their legality by German courts.94 There are, however, some provisions that require such an assessment and, thereby, refer to the foreign law, i.e. the law of the requesting state.95 As for extradition, § 2 para. 1 IRG expressly demands that the conduct for which extradition is sought is punishable under the law of the requesting state. Thus, the standard for the review is the law of the requesting state.96 However, the German authorities will only roughly check whether the assessment of the competent authority of the requesting state is plausible (test for conclusiveness— Schlüssigkeitsprüfung).97 The assessment is based upon the documents to be submitted by the requesting state, in particular the arrest warrant or the final judgment to be enforced and a description of the applicable laws (§ 10 para. 1 sent. 1 and para. 3 IRG). The description must provide information on the criminal offence and the applicable provisions of the general part (e.g. attempt, participation).98 In contrast to domestic criminal proceedings, extradition proceedings do not require the competent authority to establish a reasonable suspicion that the person to be surrendered has committed the crime for which extradition is sought (so-called formelles Prüfungsprinzip).99 Based on a principle of mutual trust (Vertrauensgrundsatz),100 German courts and authorities may rely on the assessment of the authorities of the requesting state (i.e. the court that has issued the arrest

94 BVerfG, decision of 20 October 1977 – 2 BvR 631/77, BVerfGE 46, p. 214 para. 20 referring to a general rule of international law in this regard; see also BVerfG, decision of 11 October 1951, 1 BvR 95/51, BVerfGE 1, p. 10 para. 9; decision of 21 March 1957 – 1 BvR 65/54, BVerfGE 6, p. 290 para. 18. 95 Schierholt (2020a), § 2 para. 7. 96 Schierholt (2020a), § 2 para. 7. 97 Vogel and Burchard (2009), § 2 para. 24. 98 Hackner (2020b), § 10 para. 10. 99 See § 10 para. 2 IRG; Böse (2014), p. 153; Böhm (2017c), para. 798. 100 See in this regard also Böse (2014), p. 153.

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warrant on which the request is based).101 The responsibility for the examination of evidence and the assessment whether the corresponding requirements for arrest and detention (suspicion) are met is, therefore, entrusted to the requesting state.102 On the other hand, the trust in the assessment of the requesting state is not unlimited and unconditional, in particular, if evidence arises that a criminal charge is being “constructed” against the person sought in order to disguise political persecution.103 Special circumstances may thus justify a review as to whether there are reasonable grounds to believe that the person has committed the offence with which he or she is charged; in this case, extradition is not admissible unless a description of the facts showing probable cause for the commission of the offence has been submitted (§ 10 para. 2 IRG).104 If the Higher Regional Court finds that there are serious doubts about the suspicion, it may ask the requesting state whether it upholds the request before declaring the request inadmissible based on substantive law.105 In addition to the requirement of a description of the applicable law, the information submitted by the requesting state must be sufficiently detailed so that German courts may examine all substantive conditions and exclude any possible grounds for justification.106 If the information does not provide a sufficient basis for deciding on the admissibility of the extradition, the Higher Regional Court may rule the extradition inadmissible only after the requesting state has been allowed to submit additional documents (§ 30 para. 1 IRG) and the requesting state was unable to submit further information to dispel any remaining doubts.107 In the interest of smooth and effective international cooperation, it may, however, be appropriate for the requested state itself to seek to cure formal deficiencies. To that end, the competent authority may supplement the documents and information with the findings of an investigation conducted by the authorities of a third state.108 As long as the request for extradition is rejected only because formal requirements have not been met, the decision does not preclude the requesting state from filing a new request, this time complying with the required documents.109 In contrast to extradition, the enforcement of a foreign sentence does not require the German authorities to assess whether the relevant conduct is punishable under the law of the requesting state because this has already been established by the court

Hackner (2020b), § 10 para. 4. Hackner (2020b), § 10 para. 1. 103 See Hackner (2020b), § 10 para. 41. 104 See § 10 para. 2 IRG. 105 Hackner (2020b), § 10 para. 50. 106 Hackner (2020b), § 10 para. 7. 107 Higher Regional Court Frankfurt a.M., decision of 6 September 2006 – 2 Ausl A 42/05, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2006, p. 343; Lagodny et al. (2012a), § 10 para. 27. 108 Higher Regional Court Karlsruhe, decision of 8 February 1989 – 1 AK 31/88, juris; Hackner (2020b), § 10 para. 25. 109 Hackner (2020b), § 10 para. 28 with further references. 101 102

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of the requesting state that has imposed the sentence. Thus, the competent authority merely examines whether the relevant conduct could have been sanctioned under German law (§ 49 para. 1 no. 3 IRG). The request has to meet certain formal requirements; in particular, the requesting state must submit the final judgment (§ 49 para. 1 no. 1 IRG). If the information provided by the requesting state is not sufficient, the rules on extradition proceedings apply accordingly (§ 52 IRG). In mutual legal assistance proceedings, German law does not require the competent authority to apply the criminal law of the requesting state either.110 Similar to the enforcement of foreign sentences, the competent authority merely examines whether the offence on which the request is based would be punishable as a criminal or regulatory offence under German law (§ 66 para. 2 no. 1 IRG). Accordingly, the requesting state is not obliged to provide a description of the applicable criminal law111 unless an international treaty provides otherwise (e.g. Art. 14 European Convention on Mutual Legal Assistance in Criminal Matters).112 The cooperation within the European Union is governed by the eighth (European arrest warrant), ninth (enforcement of sentences) and tenth (mutual legal assistance) parts of the IRG. Even though § 2 IRG does not apply to the execution of a European arrest warrant,113 the competent authority has to apply foreign law because a European arrest warrant for the purpose of prosecution may be executed only if under the law of the issuing Member State the offence is punishable by imprisonment or another sanction with a maximum term of no less than 12 months (§ 81 no. 1 IRG). The standard for review in this regard is the law of the requesting state.114 In order to enable the competent authority to make its assessment, the issuing authority must provide the executing authority with the necessary extradition documents (§ 83a para. 1 IRG; see also Art. 8 Framework Decision on the European Arrest Warrant (FD EAW) and the corresponding annexe), a description of the applicable laws and the maximum penalty for the offence (§ 83a para. 1 no. 4 and 6 IRG). As in extradition proceedings, it is not a matter for the executing authority to assess the evidence and to assess whether there are reasonable grounds to believe that the person to be surrendered has committed the crime. § 83a IRG, which modifies the general rule (§ 10 IRG), suggests that such an assessment is not applicable even in exceptional cases (§ 10 para. 2 IRG).115 If, however, the request gives rise to the assumption that the European arrest warrant is abused for the Higher Regional Court München, decision of 19 December 1984 – OLG Ausl 113/84, in: Eser et al. (1989), p. 369; Lagodny and Zimmermann (2020), § 61 para. 26. 111 Higher Regional Court München, decision of 19 December 1984 – OLG Ausl 113/84, in: Eser et al. (1989), p. 366 (368). 112 Higher Regional Court Düsseldorf, decision of 4 April 1990 1- Ws 221/90, Zeitschrift für Wirtschafts- und Steuerstrafrecht 1990, p. 323 (324). 113 Vogel and Burchard (2009), § 2 para. 2. 114 Zimmermann (2020), § 81 para. 7. 115 Higher Regional Court Stuttgart, decision of 7 September 2004 – 3 Ausl 80/04, Strafverteidiger 2004, p. 546 (547); Böse (2012), § 83a para. 13, with further references; for the contrary view see Hackner (2020e), § 78 para. 14. 110

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purpose of political persecution, the competent authority must examine whether the execution would violate fundamental rights and, thus, be in breach of the European ordre public (§ 73 sent. 2 IRG; see also Art. 1 para. 3 and recital 12 FD EAW).116 In proceedings for the enforcement of foreign sentences and the execution of European investigation orders, the German authorities do not apply the law of the issuing Member State but indirectly, namely in its assessment as to whether the nature and duration of the sentence are incompatible with German law (§ 84g paras. 4, 5 IRG; see also Art. 8 paras. 2 and 3 FD 2008/909/JHA), respectively whether the requested measure exists under German law (§ 91f para. 2 no. 1 IRG; see also Art. 10 para. 1 lit. a Directive 2014/41/EU). Nevertheless, the issuing authority has to submit detailed information as provided by the corresponding form (§ 84e, § 91d IRG), including a description of the facts and the applicable law. In sum, German law requires the competent authorities to apply foreign law in exceptional cases only; the assessment is limited to a test for conclusiveness. Formal requirements on the information and documents to be submitted are derived not from foreign law but from domestic law (or EU law) and shall enable the competent authorities to assess whether assistance to the requesting state may be granted (admissibility decision).

4.2.3.2

Reasons for Non-Examination of a Foreign Request

As a matter of principle, the German Constitutional Court has stated that, according to a general rule of international law, it is not upon German courts to rule on the lawfulness of a decision of a foreign authority (such as the decision to grant a request for extradition) but only a matter of the competent authorities of that state.117 The Federal Court of Justice followed the same reasoning when it refused to rule on the exclusion of evidence (allegedly) obtained in violation of foreign law.118 In a more recent decision, the court further elaborated that a review of the decision of another Member State’s authority would be incompatible with the principle of mutual trust.119 As the exceptions from the obligation to recognise and execute a European arrest warrant or a European investigation order (e.g. the ordre public reservation) clearly reveal, international law and EU law do not strictly prohibit German authorities from

Böse (2012), § 83a para. 14, with further references. BVerfG, decision of 20 October 1977 – 2 BvR 631/77, BVerfGE 46, p. 214 (219 f), referring to a general rule of international law; see also BVerfG, decision of 11 October 1951, 1 BvR 95/51, BVerfGE 1, p. 10 para. 9; BVerfG, decision of 21 March 1957 – 1 BvR 65/54, BVerfGE 6, p. 290 para. 18. 118 Federal Court of Justice of Germany (BGH), decision of 11 November 2004 – 5 StR 299/03, Neue Juristische Wochenschrift 2005, p. 300 (302); decision of 21 November 2012 – 1 StR 310/12, Strafverteidiger 2014, p. 193 (196). 119 Federal Court of Justice (BGH), decision of 21 November 2012 – 1 StR 310/12, Strafverteidiger 2014, p. 193 (196). 116 117

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assessing whether measures taken by the authorities of a foreign state comply with minimum human rights standards. The courts of the foreign state, however, are usually in a better position to review the acts of its authorities. In contrast, German courts would lack the expertise in foreign law and its application in court practice, which is necessary to exercise this task properly. The concentration of review in the state whose authorities have acted, therefore, may be due to an appropriate and efficient division of tasks and responsibilities between the requesting and the requested states.120

4.2.3.3

Existence of a Domestic Legal Remedy Against a Foreign Request121

German law does not provide for the possibility to lodge a remedy against a foreign request (or a decision, e.g. regarding a search warrant, on which the request is based) with a German court. The law implementing the European investigation order only allows the executing authority to postpone the transfer of evidence obtained through a European investigation order if the order has been challenged before a court of the issuing Member State (§ 91i para. 2 no. 1 IRG).

4.2.3.4 4.2.3.4.1

Judicial Review in the Trial Phase Judicial Review of the Decision to Request Legal Assistance

According to traditional understanding, a request for legal assistance and the corresponding declaration of intent under the international law of the Federal Republic of Germany is not subject to judicial review because neither the legal status of the request nor the request itself violates an individual right. In contrast, the underlying national order, such as the issue of a warrant, can be contested through the usual legal remedies (§ 77 para. 1 IRG, supra Sect. 4.1.2.1). However, requests for the transfer of enforcement of a custodial sentence that shall be served abroad are subject to an admissibility procedure (judicial protection ex ante, § 71 para. 4 IRG). Furthermore, the recent case law on the EU concept of judicial authority may require the court authorising (issuing) a European arrest warrant to assess the issue of proportionality and, thereby, pave the way for a judicial review of the legality of the European arrest warrant and its transnational dimension (supra Sect. 4.1.2.1).

120

Böse (2014), pp. 159 f, with further references. Cf. recital 22 of Directive 2014/41/EU regarding the European Investigation Order: “. . . In cases where objections against the EIO are submitted by an interested party in the executing State in respect of the substantive reasons for issuing the EIO, it is advisable that information about such challenge be transmitted to the issuing authority and that the interested party be informed accordingly.”

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4.2.3.4.2

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Incidental Judicial Review in the Trial Phase

As a matter of principle, the use and exclusion of evidence collected in the requested state and transferred to the requesting state (the forum state) is governed by the law of the requesting state.122 However, except for a few provisions (§ 136a para. 3 sent. 2 StPO, with regard to evidence obtained by torture, deception and other illicit means), the law on criminal procedure does not contain explicit rules on the exclusion of evidence. Accordingly, evidence that has been obtained illegally is not per se excluded from the trial,123 but the court must carefully examine whether public interest in investigating and prosecuting the criminal offence outweighs the individual interests protected by the provision that has been infringed.124 In its appraisal of the evidence, the court may also take into account the illegal origin.125 4.2.3.4.2.1

Illegal Request

These rules and principles on domestic criminal proceedings also apply to evidence obtained abroad. As German authorities are bound by the rules of criminal procedure when requesting a foreign state for legal assistance, an infringement of the provisions on the collection of evidence might have the consequence that the evidence taken and transferred by the requested state must not be used in the trial (see the first example of the Questionnaire, Chap. 1, Sect. 1.4 – II. A. 3 b). This applies in particular where the requesting authority seeks to bypass the procedural rights of the defendant. Therefore, records of an examination of a witness conducted by a judge of the requested state must not be used in the trial if the German authorities have not taken the necessary steps to ensure that the defence counsel may participate in the examination and exercise his or her rights to question the witness (see Art. 4 European Convention on Mutual Legal Assistance in Criminal Matters).126 Generally speaking, if the decision on which the request (e.g. for a search warrant) is based or the request itself does not comply with a procedural rule whose violation triggers Federal Court of Justice of Germany (BGH), decision of 21 November 2012 – 1 StR 310/12, Strafverteidiger 2014, p. 193; Böse (2002), p. 149. 123 BVerfG, decision of 27 April 2000 – 2 BvR 75/94, Neue Juristische Wochenschrift 2000, p. 3557; Federal Court of Justice of Germany (BGH), decision of 27 February 1992 – 5 StR 190/191, official court reports (BGHSt) 38, p. 214 para. 13; Federal Court of Justice of Germany (BGH), judgment of 11 November 1998 – 3 StR 181/98, BGHSt 44, p. 243 para. 10; permanent jurisdiction. 124 Federal Court of Justice of Germany (BGH), judgment of 20 October 1992 – 4 StR 126/92, BGHSt. 38, p. 372 paras. 6 f.; permanent jurisdiction. 125 Federal Court of Justice of Germany (BGH), judgment of 22 April 1952 – 1 StR 622/51, BGHSt 2, p. 300 para. 12; Böse (2002), p. 158. 126 Federal Court of Justice of Germany (BGH), decision of 3 November 1987 – 5 StR 579/87, Neue Zeitschrift für Strafrecht 1988, p. 563; see, in contrast, Federal Court of Justice of Germany (BGH), decision of 17 March 2010 – 2 StR 397/09, Neue Juristische Wochenschrift 2010, p. 2224 (2225 f.), where the German authorities initiated a corresponding request, but the requested state (Turkey) did not allow for defence counsel to participate in the examination of the witness. 122

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the exclusion of evidence in purely domestic proceedings, the evidence collected by the requested state must not be used during trial either.127 4.2.3.4.2.2

Illegal Decision in the Requested State

On the other hand, the Federal Court of Justice held that a violation of the law of the requested state does not exclude evidence collected abroad from the trial (see the second example of the Questionnaire, Chap. 1, Sect. 1.4 – II. A. 3 b).128 This strict approach corresponds to the well-established case law on foreign decision to grant German requests for extradition.129 However, it has been criticised by scholars for depriving the defendant of effective judicial protection because a legal remedy against the measure taken in the requested state will not protect the defendant from the illegally obtained evidence being used in the domestic trial.130 Therefore, a violation of individual rights guaranteed by the law of the requested state should also result in the exclusion of evidence that has been obtained illegally.131 These concerns have been addressed by the rules on judicial review against the issuing of a European investigation order and its execution. Where the execution of a European investigation order has been successfully challenged before a court of the executing Member State, the criminal court of the issuing Member State shall take this decision into account when deciding upon the admissibility of the evidence obtained on the basis of that order (Art. 14 para. 7 Directive 2014/41/EU). According to the explanatory memorandum, the general rules and principles on the exclusion of evidence apply accordingly; i.e., illegally obtained evidence will not per se be excluded from the trial.132 In legal literature, however, it has been argued that a successful challenge of the decision to execute the order will, as a rule, render the evidence inadmissible in the issuing Member State.133

4.2.3.4.3

Decision Not to Initiate a Request

The general framework of international cooperation in criminal matters does not provide for a legal remedy against the decision not to initiate a request. However, due to the right to judicial review (Art. 19 para. 4 GG) and the corresponding case

127

Böse (2002), p. 150; Gleß (2013), p. 607; Schuster (2006), p. 119. Federal Court of Justice of Germany (BGH), decision of 11 November 2004 – 5 StR 299/03, Neue Juristische Wochenschrift 2005, p. 300 (302); decision of 21 November 2012 – 1 StR 310/12, Strafverteidiger 2014, p. 193 (196). 129 Böse (2002), p. 153; see also, most recently, Higher Regional Court München, decision of 13 June 2019 – 2 Ws 587/19, juris (paras. 20 f.). 130 Schuster (2014), p. 200. 131 Schuster (2014), p. 201; see also Gleß (2013), p. 607. 132 BT-Drucks. 18/9757, p. 32; see also Böse (2014), p. 163. 133 Böhm (2017a), p. 1515. 128

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law of the Constitutional Court (supra Sect. 4.1.2.2), a convicted person may challenge the decision of the public prosecution service not to initiate proceedings on the transfer of enforcement (§§ 23 ff. EGGVG, supra Sect. 4.1.2.2). The law on the implementation of the corresponding EU cooperation instrument expressly provides for a legal remedy; the convicted person may challenge the decision of the public prosecution service (acting as the granting authority) within two weeks (§ 84e para. 3, § 85 para. 5 IRG, supra Sect. 4.1.2.2). In contrast to the enforcement of custodial sentences, there is no well-established case law as far as extradition and mutual legal assistance are concerned. However, it follows from the constitutional right to a legal remedy (Art. 19 para. 4 GG) that an individual claiming that the decision not to initiate a request violates his or her rights has the right to challenge this decision either before a criminal court (§§ 23 ff. EGGVG) or before an administrative court (§ 40 VwGO; see supra Sect. 4.1.2.2).

4.2.4

Concentration of Judicial Review (SIS II)

In the framework of the SIS II, any person may bring an action before a court of any Member State to access, rectify, erase, obtain information or obtain compensation in connection with an alert relating to him or her (Art. 68 para. 1 Regulation [EU] 2018/ 1862), and the decision rendered by this court shall be enforced by the authorities of all Member States (Art. 68 para. 2 Regulation [EU] 2018/1862). The legal remedies under this provision refer to the rights of an individual as a data subject (e.g. to rectify or erase data relating to him or her). In this respect, the person concerned may challenge the processing and storing of his or her data in the SIS II before the administrative court, but the review of the court does not extend to the legality of the decision of the issuing authority on which the entry in the SIS II is based; i.e., it is not upon the German court to review the decision of the competent authority of another Member State to issue a European arrest warrant.134 However, the administrative court has to examine whether the storing and processing of the data are necessary for and proportionate to the aim pursued by the alert. The issue of proportionality arose in a case where a person sought for surrender had been arrested in Germany but the German authorities had refused to execute the European arrest warrant and to surrender the arrested person to the issuing Member State; the alert, however, was not deleted in the SIS II but was converted into an alert for the purpose of communicating the whereabouts of the person concerned (Art. 30 Regulation [EU] 2018/1862). According to the administrative court, maintaining the alert was disproportionate where the whereabouts of the person concerned had already been

Administrative Court Wiesbaden, judgment of 3 July 2013 – 6 K 396/13.WI, ZD 2013, 636, juris; Administrative Court Wiesbaden, judgment of 3 July 2013 – 6 L 329/13/13.WI, juris; Meyer and Hüttemann (2016), p. 425.

134

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established and communicated to the issuing authority.135 Furthermore, the court also held that the person concerned has a right to have his or her data erased if the issuing authority fails to fulfil its obligation to ensure that the data entered in the SIS II are accurate and up to date and stored lawfully (Art. 59 para. 1 Regulation [EU] 2018/1862), in particular in compliance with the proportionality principle.136

4.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

In certain cases, the Federal Republic of Germany allows foreign authorities to undertake investigative measures on national territory. This mainly concerns the field of cross-border operations and transmission and access to databases. The most prominent examples for extraterritorial operations are hot pursuit (Art. 41 Convention Implementing the Schengen Agreement (CISA)) and cross-border surveillance (Art. 41 CISA). Even though the acting police officers of the foreign state have to comply with German law (Art. 40 para. 3 lit. a, Art. 41 para. 5 lit. a CISA), the operations were not carried out by a German authority and, thus, subject to review not by German courts but by the competent court of the country of origin only.137 However, the decision to allow a foreign state to carry out its operations within German territory might be challenged before German courts (supra Sect. 4.1.2.1 with regard to the granting decision),138 but there is no case law on this issue yet. As long as the legal framework of the state on whose territory an operation has been carried out provides for its liability, an individual may claim compensation for damages before the courts of this state (Art. 43 para. 2 CISA).139 In the framework of joint investigation teams, a team member seconded by another EU Member State may be allowed to conduct an investigation under the supervision of the German team member (§ 93 para. 1 IRG). According to the legislative materials, the foreign team member is not empowered to investigate on its own but is only accompanied by the German team member.140 Accordingly, the decision on the investigative measure is taken by the German team member only141 and is, thereby, subject to judicial review according to general rules. Similar problems arise where a foreign authority is granted direct access to domestic databases (e.g. on vehicle registration data, § 37a Road Traffic Act— Administrative Court Wiesbaden, judgment of 19 July 2013 – 6 K 993/12.WI, juris; Administrative Court Wiesbaden, judgment of 9 August 2013 – 6 L 778/13.WI, juris. 136 Administrative Court Wiesbaden, judgment of 19 July 2013 – 6 K 993/12.WI, juris. 137 Classen (2005), p. 482. 138 Classen (2005), p. 482. 139 Classen (2005), p. 482. 140 BT-Drucks. 15/4232, p. 9. 141 Trautmann (2020), § 93 para. 3. 135

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Straßenverkehrsgesetz (StVG)). As the foreign authority may directly access the data, the transfer of data does not require any act of a domestic authority (not even an ex post validation) that could be subject to judicial review by a German court. However, the person concerned may lodge a constitutional complaint before the Constitutional Court claiming that the provision infringes his or her fundamental rights such as the right to privacy and the right to an effective legal remedy.142 As regards vehicle registration data, this did not happen yet, but the Act ratifying the Cybercrime Convention has been challenged before the Constitutional Court as the Convention allows another state party to directly access publicly available stored computer data, regardless of where the data are located, and to directly access or receive stored computer data located in another party if the acting authority obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data (Art. 32 Convention on Cybercrime of the Council of Europe (CCC)). The court, however, did not decide upon the matter because the applicants failed to substantiate a violation of their fundamental rights where the data would be either publicly accessible or transferred with the data subject’s consent.143 Directive 2004/80/EC144 relating to the compensation of crime victims must be seen in this context as well. The Directive entered into force in August 2004145 establishing a system of cooperation between authorities of the Member States of the European Union to facilitate access to compensation in cases where a crime was committed in a Member State other than the victim’s state of residence. Article 1 of the Directive states that in those cases, Member States must guarantee the right to submit the application for compensation to an authority or any other body in the Member State where the crime was committed. The competent authority in the victim’s state of residence (assisting authority) then assists the applicant in the process. However, the assisting authority does not examine the application. The examination of the application is the responsibility of the authority of the Member State where the victim applied for compensation.146 Regarding the granting of compensation, Germany saw no need to transpose the Directive into national law but refers to the existing law on compensation to victims of violent crime (Gesetz über die Entschädigung für Opfer von Gewalttaten (OEG)).147 The Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales (BMAS)) was appointed as assisting authority within the

142

See Böse (2007), pp. 140 f. BVerfG, decision of 21 June 2016 – 2 BvR 637/09, BVerfGE 142, p. 234 paras. 23, 27ff. with differing special vote of the judge Huber. 144 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. 145 Entered into force on 6th August 2004. 146 Art. 12 of the Directive 2004/80/EC: The rules on access to compensation in cross-border situations drawn up by this Directive shall operate on the basis of Member States’ schemes on compensation to victims of violent intentional crime committed in their respective territories. 147 Art. 1 para. 4 lit. 1 OEG: “Foreign nationals shall be entitled to compensation, if they are nationals of a member state of the European Communities; . . .”. 143

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scope of Article 3 para 1 of the Directive.148 The tasks of the assisting authority derive directly from Directive 2004/80/EC without additional administrative regulations or other legal regulations. Usually, the affected persons first apply for compensation under the OEG. They receive the necessary information on their right for compensation and on the responsible authorities, e.g. from the police, hospitals, doctors or victim support facilities. The present practice of the mentioned authorities is to forward a copy of the application to the Federal Ministry of Labour and Social Affairs, which in turn informs the persons concerned through a letter about the corresponding regulations for compensation and the related procedures in the country of crime. This is important because the affected person is obliged by German law to apply for compensation in another Member State in addition to applying for compensation under the OEG, if applicable.149 Otherwise, benefits under the OEG may be refused. In practice, the assisting authority sends the application forms provided by the EU Member State.150 The person concerned can obtain advice and information on how to complete the application. To the extent known, a list of documents to be enclosed (e.g., medical reports, documents on criminal proceedings) is also passed on to the persons concerned. Finally, the assisting authority forwards the application to the competent decision-making authority in the respective Member State. The Federal Ministry of Labour and Social Affairs will assist with all the questions that may arise in the course of the proceedings from the persons concerned or the foreign decision-making authorities.151 In particular, the assistance includes translation services for the affected persons without further costs.

§ 6a para. 2 OEG. See in this regard § 3a para. 4 sentence 2 OEG—conclusion from the offsetting of benefit entitlements under other public or private social protection or pension schemes. 150 Art. 1, Art. 4, and Art. 5 Directive 2004/80/EC. 151 A search engine for the competent foreign authorities can be found on the website of the European justice portal (https://e-justice.europa.eu/content_compensation_to_crime_victims-448de.do), as well as corresponding transmission form (Art. 14 Directive 2004/80/EC ), which can be translated into the desired language (Art. 6 Directive 2004/80/EC; https://e-justice.europa.eu/ content_compensation_to_crime_victims_forms-272-de.do.). 148 149

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Scope of Judicial Protection and Applicable Legal Standards Judicial Protection and Applicable Standards in the Requested State

In general, the decision on granting a foreign request and the admissibility of legal assistance is based upon domestic law, i.e. the law of the requested state.152 The provisions of the IRG will apply (§ 1 para. 1 IRG) unless international treaties, insofar as they are directly applicable (§ 1 para. 3 IRG), or the statutory provisions implementing EU law (§ 1 para. 4 IRG; see §§ 78 ff. IRG) provide otherwise. Thus, the competent authorities and courts may apply an extradition treaty153 or refer to EU legislation when applying its implementation into German law.154 As has been mentioned above, the competent court first and foremost decides upon the admissibility of legal assistance and the lawfulness of the corresponding executing measures; as a matter of principle, it is not upon German courts to review the foreign request or the decision on which the request is based. This general rule notwithstanding, some grounds for refusal require an indirect review of decisions and/or proceedings in the requesting state. This review may be based upon the law of the requesting state if a request for extradition is related to a conduct that is not punishable under the law of the requesting state (§ 2 para. 1 IRG, supra Sect. 4.2.2), but as the examination of the foreign decision is linked to grounds for refusal under the law of the requested state, the assessment is mainly based on the domestic law of the latter state as well. Thereby, German law is indirectly applied to criminal proceedings conducted by the requesting state; the most prominent example is the double criminality requirement (the offence for which extradition is sought must be punishable under German law, § 3 para. 1 IRG) and the minimum threshold for extraditable offences (at least a maximum penalty of one-year imprisonment, § 3 para. 2 IRG). Furthermore, the enforcement of a foreign sentence must not go beyond the maximum penalty provided for the offence under German law (§ 54 para. 1 sent. 3 IRG; see, however, the exceptions under § 54 para. 1 sent. 4 and § 54a IRG). A general reference to domestic standards is enshrined in the ordre public reservation (§ 73 sent. 1 IRG) according to which legal assistance to a foreign state shall not be granted if this would conflict with essential principles of the German

Vogel and Burchard (2017), Vor § 1 para. 84. Federal Court of Justice of Germany (BGH), decision of 26 July 1984 – 4 Ars 8/84, BGHSt 33, 26 (Art. 10 European Convention on Extradition). 154 Federal Court of Justice of Germany (BGH), decision of 19 June 2012 4 ARs 5/12, Neue Juristische Wochenschrift 2012, p. 2980 (2982 f.), with regard to Art. 5 no. 2 FD EAW and § 83 para. 1 no. 4 IRG. 152 153

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legal system. The ordre public clause applies to all types of mutual legal assistance.155 The standard of review is defined by “essential principles” of the German legal system and, thereby, refers to the constitutional principles and fundamental rights in particular.156 However, due to the respect for the foreign criminal justice system and the interest in the effective functioning of international cooperation, the standard of constitutional review shall not be the same as the standard to be applied to purely domestic matters; instead, the competent court merely has to examine whether extradition (or any other type of legal assistance) is precluded by a violation of indispensable principles of the German constitutional order (e.g. the rule of law and the right to a fair trial).157 Since the standard of review is derived from constitutional law, the ordre public reservation establishes an obstacle to extradition where a bi- or multilateral treaty prevails over the general rules on international cooperation, including § 73 sent. 1 IRG.158 The German Constitutional Court even applied a constitutional standard to proceedings for the execution of a European arrest warrant. It held that the execution must be refused if this would be in breach of fundamental principles that form part of the constitutional identity, such as the guarantee of human dignity (Art. 1 para. 1 GG), from which the principle nulla poena sine culpa and the right of the defendant to be present at the trial are derived.159 The reference to the German legal system (§ 73 sent. 1 IRG) notwithstanding, the constitutional ordre public extends to minimum standards of binding international law that form an integral part of federal law (Art. 25 GG).160 Accordingly, obstacles to mutual legal assistance may arise from the European Convention on Human Rights (ECHR). As follows from the judgment of the European Court of Human Rights in Soering,161 a request for extradition must not be granted if the person to be surrendered would be exposed to the risk of torture or inhuman treatment (Art. 3 ECHR).162 Subsequently, German courts have applied this approach to other

Gleß et al. (2020), § 73 para. 5. Hackner and Schierholt (2017), para. 29. 157 BVerfG, decision of 26 January 1982 – 2 BvR 856/81, BVerfGE 59, p. 280 (282 f); decision of 31 March 1987 – 2 BvM 2/86, BVerfGE 75, p. 1 (19); decision of 24 March 2016 – 2 BvR 175/16, Neue Zeitschrift für Strafrecht 2017, p. 43 (45). 158 Vogel and Burchard (2017), Vor § 1 para. 230. 159 BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, Neue Juristische Wochenschrift 2016, p. 1149 (1151 ff.). 160 BVerfG, decision of 26 January 1982 – 2 BvR 856/81, BVerfGE 59, p. 280 (282 f); decision of 31 March 1987 – 2 BvM 2/86, BVerfGE 75, p. 1 (19); decision of 24 March 2016 – 2 BvR 175/16, Neue Zeitschrift für Strafrecht 2017, p. 43 (45). 161 European Court of Human Rights (ECtHR), judgment of 7 July 1989, Application no. 14038/88 (Soering v. United Kingdom). 162 Higher Regional Court Frankfurt/Main, decision of 1 March 2007 – 2 Ausl A 73/06, Neue Zeitschrift für Strafrecht 2008, p. 166 (167 f.). 155 156

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guarantees of the Convention (Arts. 6, 8 ECHR) as well.163 As far as the enforcement of foreign sentences is concerned, German law expressly requires that the sentence be imposed in a trial in conformity with the ECHR (§ 49 para. 1 no. 2 IRG).164 In cooperation with another EU Member State, reference to the law of the requested state is strictly limited: the double criminality requirement does not apply to a catalogue of crimes (§ 81 no. 4 IRG), the extraditable offence is defined by reference to the issuing Member State (§ 81 no. 1 IRG) and the general rule that a foreign sentence must not be enforced beyond the maximum term of imprisonment under German law still applies (§ 84g para. 4 IRG). As a rule, the standard of review is defined by EU law; instead of the national (constitutional) ordre public, the European ordre public (Art. 6 Treaty on European Union (TEU)) applies (§ 73 sent. 2 IRG). However, the Constitutional Court maintains its competence to review if the requested assistance would be in breach of the identity of the constitutional order (e.g. human dignity). The European ordre public is determined by the Charter of Fundamental Rights of the European Union (EU-CFR), to which German courts have referred in the recent case law on minimum standards for prison and detention conditions (Art. 4 EU-CFR).165 Furthermore, the execution of a European arrest warrant must be refused if the sentence sought by the issuing Member State is “intolerably severe” and therefore disproportionate (Art. 49 para. 3 EU-CFR).166 In addition to the Charter, a minimum standard of procedural rights has emerged from EU legislation on defence rights.167 It has been suggested that this legislation should be considered to form part of the European ordre public.168 Thereby, the optional ground for refusal relating to trials in absentia (Art. 4bis FD EAW) would become mandatory if the issuing Member State fails to comply with the minimum standards defined by the Directive on the presumption of innocence and the right to be present at the trial provided that the conditions for the direct applicability of the Directive are met.169

Federal Court of Justice of Germany (BGH), decision of 16 October 2001 – 4 ARs 4/01, Neue Zeitschrift für Strafrecht 2002, p. 166 (167 – Art. 6 ECHR); Higher Regional Court Karlsruhe, decision of 14 February 2005 – 1 AK 23/04, Neue Zeitschrift für Strafrecht 2005, p. 351 (352 – Art. 8 ECHR); Gleß et al. (2020), § 73 paras. 49 ff. 164 See also the reservation of the German government to the Convention on the Transfer of Sentenced Persons of 21 March 1983 (ETS no. 112). 165 BVerfG, decision of 19 December 2017 – 2 BvR 424/17, Neue Juristische Wochenschrift 2018, p. 686 (688); Higher Regional Court Bremen, decision of 8 December 2015 – 1 Ausl A 23/15, juris. 166 Higher Regional Court Stuttgart, decision of 25 February 2010 – no. 1 Ausl (24) 1246/09; see the comparative analysis of the implementation practice in France, Germany and the Netherlands: Böse (2013), p. 349. 167 E.g. Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings OJ L65/1. 168 See Brodowski (2016), p. 417. 169 Böse (2017), p. 759. 163

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If the requesting state is not an EU Member State, the European ordre public reservation (§ 73 sent. 2 IRG) does not apply. However, this does not relieve the German authorities from complying with the obligations under the Charter as far as the implementation of EU law is concerned. As the Court of Justice has held in Petruhhin, the fundamental rights under the Charter, the principle of non-discrimination (Art. 18 Treaty on the Functioning of the European Union (TFEU)) and the right to free movement (Art. 21 TFEU) may be applicable in extradition proceedings triggered by a request of a third state so that the person sought for extradition may benefit, to certain extent, from the ban on the extradition of nationals as provided by the law of the requested state.170 In a request for a preliminary ruling, a German court referred to this judgment and raised the question on whether an EU citizen must be protected against extradition to a third country either by an obligation of his or her home country to take over the criminal proceedings against him/her or by an obligation of the requested state to initiate domestic criminal proceedings instead of extraditing the EU citizen to the requesting state.171

4.3.2

Judicial Protection and Applicable Standards in the Requested State

In general, the request and the decision on which the request (e.g. for an arrest warrant, a judgment, a search warrant) is based are adopted according to the law of the requesting state, and therefore the standard for review is determined by German law. In contrast, German authorities do not apply the law of the requested state, and references are limited to exceptional cases only. For instance, Art. 95 para. 2 CISA required the issuing Member State to check whether the arrest is authorised under the national law of the requested Member States before issuing an alert in the Schengen Information System. Since it is simply impossible for the competent authority to make such an assessment for all Member States, this requirement apparently had not been implemented in practice and, therefore, had been abolished in the SIS II Regulation.172 Likewise, the Commission’s proposal on electronic evidence obliges the authority issuing a European production order against a service provider established in another Member State to assess whether the execution of the order would be in breach of the immunities or privileges under the law of the latter Member State even though the issuing authority lacks the expertise to properly

170

See Court of Justice of the European Union (CJEU) (Grand Chamber), judgment of 06 September 2016, Case C-182/15 (Petruhhin), paras. 51 ff. 171 Higher Regional Court Berlin, decision of 14 May 2019 - 4 AuslA 151/16, 151 AuslA 65/16, (4) AuslA 65/16 (151/16), juris. 172 Gleß and Wahl (2020), Einführung Schengener Informationssystem para. 41.

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interpret and apply foreign law and may not be in a position to guarantee an impartial and unbiased assessment.173 International and EU law may be relevant in two respects: on the one hand, German authorities are bound by international and EU human rights standards (ECHR, EU-CFR) when deciding upon a measure interfering with fundamental rights and initiating a corresponding request. In addition, EU legislation may require the issuing authority to examine whether recourse to the cooperation instrument complies with the principle of proportionality (Art. 6 para. 1 lit. a European Investigation Order Directive (EIO Directive), § 91i para. 3 no. 1 IRG). In this respect, the international and European standards supplement the formal and substantive requirements applicable to domestic criminal proceedings and mutual legal assistance proceedings in the requesting state. On the other hand, international and EU law provides for a standard of review with regard to the measures to be taken by the requested state where the execution of the request would expose the person concerned to the risk of human rights violations. For instance, a request for the enforcement of a sentence imposed by a German court might violate Art. 4 EU-CFR and/or Art. 3 ECHR where the convicted person would serve his or her sentence under conditions that are incompatible with the minimum standards for prison and detention conditions; the ordre public reservation applies accordingly (§ 73 IRG).174

4.4

Pleading Requirements

In mutual legal assistance proceedings, the competent court and the competent authority are obliged to examine the facts and to take evidence ex officio.175 Accordingly, the right to an effective legal remedy (Art. 19 para. 4 GG) requires a complete review of the official measure by the court in both legal and factual terms.176 The competent court or authority itself has to establish the facts which are necessary to decide whether or not to grant legal assistance.

173

Art. 5 para. 7 of the proposed Regulation on European Production and Preservation Orders for electronic evidence in criminal proceedings, COM (2018) 225 final, 17 April 2018; for a critical assessment see Böse (2018a), p. 42 and passim. 174 BT-Drucks. 18/4347, p. 144; Higher Regional Court Celle, decision of 22 December 2016 – 1 AR (Ausl) 59/16, OLGSt IRG § 85c Nr. 2; Böse (2018b), § 85 para. 9. 175 BVerfG, decision of 10 July 1958 – 1 BvR 532/56, BVerfGE 8, p. 81 para. 13 in regard to extradition; decision of 14 November 1979 – 1 BvR 654/79, BVerfGE 52, p. 391 para. 38; decision of 23 February 1983 – 1 BvR 1019/82, BVerfGE 63, p. 215 paras. 32 ff. 176 BVerfG, decision of 5 February 1963 – 2 BvR 21/60, BVerfGE 15, p. 275 para. 18; decision of 10 November 1964 – 2 BvL 14/61, BVerfGE 18, p. 203 para. 32; decision of 15 February 1967 – 2 BvR 658/65, BVerfGE 21, p. 191 para. 12; decision of 28 January 1970 – 2 BvR 319/62, BVerfGE 28, p. 10 para. 14.

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In this regard, there is no difference as to whether the incoming request for mutual assistance triggers an administrative procedure resulting in a decision to grant or to deny assistance (Bewilligung) or the granting decision requires an additional admissibility procedure in order to check whether granting assistance to the foreign state complies with domestic law (Zulässigkeitsverfahren). If the appellant presents facts that might constitute an obstacle to the requested assistance, the competent court or authority must examine their relevance for the proceedings. On the other hand, the court does not have to initiate investigations unless the facts of the case indicate that the requirements for granting legal assistance (extradition, enforcement of sentences) are not fulfilled.177 Under such circumstances, the competent court is obliged to examine independently within the framework of the IRG (or a corresponding treaty) whether the requested assistance would expose the person concerned to the risk of human rights violations.178 This obligation includes the assessment of the relevant facts and the taking of evidence (§ 30 para. 1 and 3 IRG).179 The court must examine the documents and the facts that the person concerned credibly presents in a “straightforward, consistent, concrete, descriptive and detailed manner.”180 The court can make use of various sources to obtain an overview of the arguments put forward. In practice, these are mainly reports and statements by the government, such as country reports by the Ministry of Foreign Affairs.181 The court may also consider reports from non-governmental organisations or international organisations. The person concerned does not bear the burden of proof (Beweislast) at any point in the procedure.182 He or she is only required to assist the court in the investigation and to provide relevant information (Darlegungslast).183 The content and scope of the court’s duty to examine the facts

BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, BVerfGE 140, 317 para. 69; BVerfG, interim order of 26 January 1982 – 2 BvR 856/81, BVerfGE 59, p. 280 para. 10; interim order of 9 March 1983 – 2 BvR 315/83, BVerfGE 63, p. 332 paras. 21f. and 28; BVerfG, decision of 3 March 2004 – 2 BvR 26/04, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2004, p. 308 (309); see as well BVerfG, decision of 24 January 1991 – 2 BvR 1704/90, Neue Juristische Wochenschrift 1991, p. 1411. 178 BVerfG, decision of 13 November 2017 – 2 BvR 1381/17, Neue Juristische Wochenschrift 2018, p. 37 (38); decision of 9 April 2015 – 2 BvR 221/15, Neue Zeitschrift für Verwaltungsrecht 2015, p. 1204 (1204). 179 According to BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, BVerfGE 140, p. 317 para. 66 even the requesting state might be asked for a statement. If necessary, it may be necessary to obtain an expert opinion or official information. 180 Higher Regional Court Stuttgart, decision of 14 May 2007 – 3 Ausl 87/06, Neue Zeitschrift für Strafrecht 2007, p. 273 (273/274). 181 See e.g. BVerfG, decision of 24 June 2003 – 2 BvR 685/03, BVerfGE 108, p. 129 para. 40. 182 BVerfG, decision of 10 July 1958 – 1 BvR 532/56, BVerfGE 8, p. 81 para. 13; decision of 14 November 1979 – 1 BvR 654/79, BVerfGE 52, p. 391 para. 38; decision of 22 June 1990 – 2 BvR 116/90, Neue Juristische Wochenschrift 1990, p. 2193 (2193); see also BVerfG, decision of 23 February 1983 – 1 BvR 1019/82, BVerfGE 63, p. 215 paras. 32 f.; decision of 13 April 1983 – 1 BvR 866/82, BVerfGE 64, p. 46 paras. 56 f. 183 BVerfG, decision of 14 November 1979 – 1 BvR 654/79, BVerfGE 52, p. 391 para. 38. 177

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of the case depend on the nature and weight of the evidence presented by the person concerned and, thus, cannot be determined in a general abstract manner.184 This means that the more serious the allegations of human rights violations and the more substantiated these allegations are, the more is the court under an obligation to investigate the circumstances of the case.185 If, after a comprehensive examination of the facts, it remains doubtful whether there are reasonable grounds to believe that the person to be surrendered is exposed to the risk of being treated in a manner incompatible with international human rights standards, these doubts go in favour of the person concerned.186 In this context, it is important to note that an alleged human rights violation does not create an obstacle to extradition only because the requesting state has been responsible for human rights violations in another case. According to the German Constitutional Court, there must be substantiated proof for the risk of a human rights violation in this particular case.187 If such a risk is established, there is no difference as to whether or not the requesting state is an EU Member State. The German Constitutional Court held that the principle of mutual trust does not relieve the German authorities from their obligation to refuse the execution of a European arrest warrant if the surrender of a person would result in the violation of this person’s human dignity (Art. 1 para. 1 GG).188 Furthermore, the right to be heard (Art. 103 para. 1 GG) is of particular importance in mutual legal assistance proceedings. The court must provide the opportunity for the person concerned to make statements regarding the subject matter of the proceedings and the relevant facts (see for extradition proceedings §§ 21, 22, 28 IRG). Moreover, it is necessary for the legal counsel, and also for a person not assisted by counsel, to be granted sufficient time to prepare and file these statements.189 A decision cannot be based on facts or evidence on which the person concerned was not heard.190 National (German) law governs the procedure for invoking a reason for refusing cooperation. Thus, there are no differences between arguments based on the law of the requesting state, the law of the requested state, international law or the law of the European Union. The person concerned does not bear the burden of proof at any point in the procedure. On the other hand, the requirements that must be fulfilled to satisfy the obligation to cooperate (Darlegungslast) depend on the specifics of the

Regarding extradition: BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, BVerfGE 140, p. 317 paras. 64 and 66. 185 Pieronczyk (2018), p. 155. 186 Riegel (2020), § 30 para. 12. 187 BVerfG, decision of 31 May 1994 – 2 BvR 1193/93, Neue Juristische Wochenschrift 1994, p. 2883. 188 Hartwig (2018), p. 747. 189 See Böhm (2017b), para. 708: usually not less than 2 weeks. 190 Böhm (2017b), para. 708. 184

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case and the person concerned.191 As for the requirements that have to be met under national law to invoke a reason for refusing cooperation successfully, there are no differences between different types of cooperation.

4.5 4.5.1

Guarantees Given by the Requesting State (Zusicherung) Legal Nature, Requirements and Effects

Where the person sought for extradition faces a real risk of being subject to serious human rights violations after being extradited, the requested state must not surrender the requested person to the requesting state. Following a decision by the German Constitutional Court, the principle of mutual trust can only be claimed as long as this trust is not shaken by facts to the contrary.192 If the latter is the case, the requesting state may eliminate the corresponding obstacle to international cooperation by an assurance to comply with human rights in this particular case. This assurance or guarantee (Zusicherung) can be regarded as an internationally binding declaration to enter into an (international) agreement.193 The purpose of this agreement is simply to assure the other party (the requested state) that the assuring party (the requesting state) will comply with a particular standard that forms part of an international treaty.194 The guarantee primarily serves to protect the concerned person and often tips the scale as to whether the requested assistance is accepted or denied.195 This circumstance is also taken into account by the IRG where several provisions require assurances given by the foreign state as prerequisites for mutual assistance (e.g. §§ 8, 11 IRG).196 According to the German Constitutional Court, such a legally Regarding extradition: BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, BVerfGE 140, p. 317 paras. 64 and 69. 192 See BVerfG, decision of 5 November 2003 – 2 BvR 1243/03, BVerfGE 109, p. 13 para. 74; decision of 5 November 2003 – 2 BvR 1506/03, BVerfGE 109, p. 38 para. 76. 193 Gazeas (2018), p. 278. 194 Gazeas (2018), p. 278. 195 Gazeas (2018), p. 277. 196 According to § 8 IRG, if the offence is punishable by death under the law of the requesting State, extradition shall not be granted unless the requesting State gives assurances that the death penalty will not be imposed, or if already imposed, not be enforced. § 11 IRG demands for assurances regarding the rule of specialty such as extradition is not granted unless the following conditions are met that the person sought will neither be punished in the requesting State without Germany’s consent for any reason which arose prior to his transfer with the exception of that offence for which extradition had been granted, nor be restricted in his personal freedom or be prosecuted through measures which could not also be taken in his absence; that the person sought will not be delivered, transferred or deported to a third State without Germany’s consent; and that the person sought may leave the requesting State after the final conclusion of the proceedings for which extradition had been granted. 191

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binding, international guarantee can dispel objections to the admissibility of extradition, unless it can be expected that the requesting state will not comply with the guarantee.197 This must be examined on a case by case basis.198 Thus far, the German Constitutional Court has only set minimum requirements regarding guarantees and states that, in some cases, even a general referral to human rights treaties might suffice to overcome otherwise existing refusal grounds.199 In the light of this jurisdiction, Higher Regional Courts have elaborated substantive requirements for an internationally binding guarantee that may be accepted by the German authorities.200 The most common requirements are as follows: 201 • The determination of the detention centre in which the persecuted person will be imprisoned after extradition • The assurance that the physical accommodation and other arrangements of the conditions of detention meet the European minimum standards and that inmates are not subjected to inhuman or degrading treatment (see Art. 3 ECHR) and • A detailed description of the conditions of detention in the designated detention centre; the total number of detainees; the number, size and equipment of the detention rooms; sanitary facilities; and catering conditions • A statement from the Foreign Office, or a body mandated by it, to be obtained after the submission of the above-mentioned guarantee which states that the detention facility designated by the requesting state meets the requirements The guarantee is not just a formal criterion. According to its purpose to overcome an obstacle to international cooperation, there must be no doubts as to whether the guarantee will be complied with. The guarantee is a means to avoid a decision See BVerfG, decision of 15 December 2015 – 2 BvR 2735/14, Neue Juristische Wochenschrift 2016, p.1154 with further references. 198 Böhm (2017c), para. 805 in reference to BVerfG, decision of 17 May 2017, 2 BvR 893/17, juris; BVerfG, decision of 23 February 1983 – 1 BvR 1019/82, BVerfGE 63, p. 215 paras. 33f.; decision of 20 December 2007, 2 BvQ 51/07, juris; decision of 9 April 2015 – 2 BvR 221/15, Neue Zeitschrift für Verwaltungsrecht 2015, p. 1205; decision of 17 May 2017 – 2 BvR 893/17, juris (paras. 30 f.); see in regard to the rule of specialty as a sufficient guarantee: BVerfG, decision of 9 January 1963 – 1 BvR 85/62, BVerfGE 15, p. 249 paras. 9 ff.; decision of 19 February 1975 – 1 BvR 449/74, BVerfGE 38, p. 398 para. 16; decision of 4 May 1982 – 1 BvR 1457/81, BVerfGE 60, p. 348 para. 19; Federal Court of Justice (BGH), decision of 24 May 1977, 4 ARs 6/77, BGHSt 27, p. 191 para. 13; Higher Regional Court Karlsruhe, decision of 4 February 2009, 1 AK 57/08, juris (paras. 7f.); Lagodny (2012e), § 73 para. 42; BVerfG, decision of 2 February 2016, 2 BvR 2486/15, juris (para. 22). 199 BVerfG, decision of 2 February 2016, 2 BvR 2486/15, juris (para. 22); decision of 17 May 2017, 2 BvR 893/17, juris (para. 30); decision of 24 June 2003 – 2 BvR 685/03, BVerfGE 108, p. 129 paras. 42, 43. 200 Higher Regional Court Düsseldorf, decision of 14 December 2015, III-3 AR 15/15, juris; Higher Regional Court Stuttgart, decision of 8 June 2016, 1 Ausl 321/15, juris. 201 Higher Regional Court Karlsruhe, decision of 25 February 2016 – 1 AK 4/16, juris (paras. 9 ff.); Higher Regional Court München, decision of 27 October 2015 – 1 AR 392/15, juris (paras. 35 ff.); expressly against this: Higher Regional Court Stuttgart, decision of 8 March 2016 – 1 Ausl 8/16, juris (para. 14); Ahlbrecht (2017), para. 1211 with further references. 197

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whereby a request for extradition (legal assistance) is denied.202 As the court must ex officio determine the facts of the case and the treatment which the person concerned has to expect in the requesting state, in particular,203 it may ask for an assurance to overcome existing obstacles to the requested extradition. The court must not adopt a final decision ruling the extradition admissible before the requesting state has provided the necessary guarantees. In the meantime, it is, however, possible to declare an extradition “currently inadmissible”.204 Similar to domestic criminal proceedings, the court must be convinced that the guarantee is reliable.205 The assessment of the court is usually based upon information obtained from the federal government, such as reports of the Ministry of Foreign Affairs,206 but the court may also rely on reports of non-governmental organisations (supra Sect. 4.4). Furthermore, the court can request a statement of the competent authority to clarify under which conditions the person sought for extradition will be detained.207 As in purely domestic proceedings, remaining doubts preclude requested assistance. Having said that, general and vague concerns that the requesting state will not comply with the assurance, however, cannot undermine the reliability of the guarantee.208 If there are grounds to believe that the person sought for extradition will be subject to political persecution by the requesting state (§ 6 para. 2 IRG), the requested state may grant extradition if the requesting state guarantees that the extradited person will be prosecuted solely for the crime for which extradition is sought (principle of speciality).209 In general, such a guarantee (at least where provided by states committed to the rule of law210) is regarded as sufficient protection against a threat of political persecution.211 If, however, there are facts indicating that the requesting state will not comply with the guarantee in the particular case, the court must enter into a detailed examination on whether the extradition may be ruled

BVerfG, decision of 22 June 1992 – 2 BvR 1901/91, juris; Higher Regional Court Frankfurt a. M., decision of 1 March 2007– 2 Ausl. A 73/06, Neue Zeitschrift für Strafrecht 2008, p. 166 (167). 203 BVerfG, decision of 15 December 2015, 2 BvR 2735/14, BVerfGE 140, p. 3127 paras. 51f, 65, 74. 204 See also Higher Regional Court Karlsruhe, decision of 17. April 1985 – 1 AK 15/85, Neue Juristische Wochenschrift 1985, p. 2906. 205 Schomburg et al. (2020a), § 8 paras. 15, 20; BVerfG, decision of 9. November 200 – 2 BvR 1560/00, Neue Zeitschrift für Strafrecht 2001, p. 203; Federal Court of Justice (BGH), decision of 13 January 1987 – 4 ARs 22/86, BGHSt 34, p. 256 para. 23. 206 See e.g. BVerfG, decision of 24 June 2003 – 2 BvR 685/03, BVerfGE 108, p. 129 para. 33. 207 Higher Regional Court Karlsruhe, decision of 25 February 2016, 1 AK 4/16, juris. 208 BVerfG, decision of 9 March 2016, 2 BvR 348/16, juris (para. 11); Ahlbrecht (2017), para. 1212. 209 Pieronczyk (2018), p. 172. 210 See BVerfG, decision of 09 March 2016, 2 BvR 348/16, juris (para. 10); decision of 09 January 1963– 1 BvR 85/62, BVerfGE 15, p. 249 paras. 8, 9; decision of 19 February 1975 – 1 BvR 449/74, BVerfGE 38, p. 398 paras. 14f.; decision of 09 April 2015 – 2 BvR 221/15, Neue Zeitschrift für Verwaltungsrecht 2015, p. 1205. 211 BVerfG, decision of 2 February 2016, 2 BvR 2486/15, juris (para. 22). 202

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admissible.212 The assessment on whether or not the guarantee of speciality offers sufficient protection depends on the political circumstances in the requesting state and may be subject to change.213 In case of an incoming request for mutual assistance, the Federal Republic of Germany is not obliged to accept the guarantee given by the requesting state. The question of accepting the guarantee remains at the discretion of the court or authority competent to assess whether the guarantee is sufficient to dispel the relevant obstacle to the requested assistance. As extradition, for example, may only be granted if a court has ruled it admissible, a remaining threat to human rights protection precludes the admissibility of extradition. Legal assistance may not be granted if the Higher Regional Court rules that the requirements for the rendering of legal assistance are not met (§ 61 para. 4 IRG). The decision is binding on those courts and authorities responsible for rendering legal assistance (§ 61 para. 3 IRG). However, even if the guarantee is to be considered as sufficient to dispel objections to the requested assistance, the final decision is at the discretion of the competent authority unless international law or EU law does not entail an obligation of the German authorities to grant the request (e.g. § 79 para. 1 sent. 1 IRG with regard to the European arrest warrant). In general, German authorities are not required to monitor the case after the request has been granted. However, if there are still doubts that the requesting state will comply with its obligations under the guarantee, the requesting state shall also give a guarantee to allow German consular officials to visit the person concerned after his or her drop-off at the detention centre to be able to verify compliance with the guarantee.214 While guarantees are recognised and common practice in the framework of international cooperation with third states, this does not automatically apply to cooperation with EU Member States. 215 Based upon the principle of mutual recognition, the new generation of cooperation instruments (e.g. the European arrest warrant) differ from the traditional regime of mutual legal assistance and entail strict obligations upon the requested (executing) Member State.216 As EU legislation provides for guarantees by the executing Member State in exceptional cases only (Art. 5 FD EAW), it has been suggested that the execution of a European arrest warrant must not be subject to conditions in any other case.217 On the other hand, if 212

See in this regard also BVerfG, decision of 9 April 2015– 2 BvR 221/15, Neue Zeitschrift für Verwaltungsrecht 2015, p. 1205 with remarks Huber (2015), p. 1206. 213 Pieronczyk (2018), p. 173. 214 BVerfG, decision of 2 February 2016, 2 BvR 2486/15, juris (para. 23); Higher Regional Court Rostock, decision of 30 August 2011 – 2 Ausl 28/11, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2012, p. 145; Higher Regional Court Stuttgart, decision of 8 June 2016, 1 Ausl 321/15, juris; Higher Regional Court München, decision of 27 October 2015, 1 AR 392/15, juris (para. 39). 215 See in this regard also Gazeas (2018), p. 278. 216 Gazeas (2018), p. 278. 217 Meyer (2016), p. 622.

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the execution must be refused otherwise, recourse to a guarantee might enable the executing Member State to balance the need to ensure compliance with minimum human rights standards (e.g. on prison conditions) without rendering cooperation practically impossible; the right to refuse execution implicitly allows for making execution conditional upon a guarantee that the corresponding standards are met (argumentum a maiore ad minus).218 Accordingly, it is a well-established court practice that guarantees may also be required from EU Member States in order to protect the person concerned against human rights violations.219

4.5.2

Legal Remedies Against the Violation of a Guarantee in the Requesting State

A guarantee (Zusicherung) is an internationally binding declaration whereby the requesting state offers to conclude an international agreement with the requested state (supra Sect. 4.5.1).220 Once in force, contracts bind the parties and must be fulfilled by them in good faith (pacta sunt servanda, Art. 26 Vienna Convention on the Law of Treaties).221 In principle, this internationally binding declaration of intent of the Federal Republic of Germany as such is not subject to judicial review. There is no need for a legal remedy because the guarantee itself does not violate an individual right. However, if the violation of the guarantee leads to a violation of an individual right, the general rules on judicial review in criminal proceedings apply accordingly; i.e., the decision taken by the competent authority or court (a violation of the principle of speciality by prosecuting the extradited person for another offence) can be challenged before the competent court. The existence of a legal remedy, however, does not necessarily imply that an individual may invoke the guarantee as an individual right. This issue is closely linked to the long-discussed question of individual rights under international law. Following modern theory of international law, rights and obligations of individuals can be derived from international agreements.222 It depends on the interpretation of the relevant treaty whether and to what extent it establishes individual rights.223 For instance, an international treaty is held to establish individual rights where it provides for a mechanism that allows the individual to assert these rights before an

218

Gazeas (2018), p. 283; Riegel and Speicher (2016) p. 255. Higher Regional Court Karlsruhe, decision of 15 February 2018 – Ausl 301 AR 135/17, para. 32; Higher Regional Court Nürnberg, decision of 14 March 2018 – 1 Ausl AR 44/17, Neue Zeitschrift für Strafrecht Rechtsprechungs-Report 2018, p. 327. 220 Herdegen (2020), § 15 para. 1. 221 Herdegen (2020), § 15 para. 16. 222 Herdegen (2020), § 15 para. 1. 223 Also see in this regard Herdegen (2020), § 15 para. 1. 219

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international court.224 Following this approach, the given guarantee itself must be interpreted. In this regard, the IRG can only give indications. The IRG presupposes guarantees in various places (e.g. §§ 8, 11 IRG), but it does not provide for legal remedies. However, the IRG states in § 72 that a condition that the requested state has attached to its decision to grant legal assistance shall be honoured and have binding effect in domestic criminal proceedings. As a consequence, if the requested state has made extradition conditional upon the principle of speciality, German prosecutors and courts must not initiate a criminal investigation on another crime than the one for which extradition has been granted.225 The condition may establish a procedural impediment or render evidence inadmissible in the trial.226 A condition may also oblige the German authorities to return a person to the requested state after he had been transferred to Germany (§ 68 para. 1 IRG).227 As the principle of speciality forms part of the rule of law principle, the individual may invoke the condition in criminal proceedings.228 Even if the IRG does not explicitly use the wording “guarantee” in this regard, condition and guarantee go together. For example, if the offence for which extradition is sought is punishable by death penalty under the law of the requesting state, extradition is only possible under the condition that the requesting state assures that the death penalty will not be imposed or enforced (§ 8 IRG). The same applies to the aforementioned case of speciality: if the person concerned is threatened with political persecution in the requesting state, he or she can only be extradited if the requesting state guarantees that no political persecution will take place. As a condition of the requested state is often fulfilled by a guarantee of the requesting state, it can be expected that §72 IRG applies accordingly. 229

4.5.3

Legal Remedies Against the Violation of a Guarantee in the Requested State

Guarantees only provide for protection if the requesting state complies with its obligations, and the best way to ensure compliance is an effective control Herdegen (2020), § 15 para. 1. Hackner (2020c), § 72 para. 13. 226 Hackner (2020c), § 72 para. 4. 227 § 68 para. 1 IRG: “A person sought who has been provisionally transferred upon request and on the condition that he would be returned later for proceedings pending against him on German territory shall be returned to the requested State at the time agreed upon unless return has been waived. The public prosecution service in charge of the proceedings referred to in the 1st sentence above shall order the return and execute it.” 228 Federal Constitutional Court of Germany (BVerfG), decision of 8 June 2010 – 2 BvR 432/07, 2 BvR 507/08, Neue Juristische Wochenschrift 2011, p. 591 (592). 229 In this sense Hackner (2020c), § 72 para. 8. 224 225

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mechanism.230 The requested state (the Federal Republic of Germany), however, has no power to make the requesting state comply with the guarantee after the request has been executed and the person has been surrendered. In particular, the requested state cannot require the requesting state to return the extradited person.231 The federal government can lodge an official protest against a violation of the given guarantee, but this will usually not ensure effective protection of the person concerned.232 A breach of the guarantee, however, will have consequences for future cooperation with the requesting state. As a guarantee of that state has proven not to be reliable, German authorities will most likely not accept such a guarantee and refuse the request in similar cases.233 Even though the law does not provide for an institutional monitoring mechanism, recent court practice usually requires a guarantee that German representatives (diplomatic or consular staff) may visit the extradited person in order to check whether the requesting state complies with its obligations.234

4.5.3.1

Complaints Against the Granting Authority

The German framework of international cooperation in criminal matters does not provide for a legal remedy against the decision of the competent authority not to take action against the violation of a guarantee by the requesting state. According to the general rules (supra Sect. 4.2.1), judicial review might be available before the competent administrative court (§ 40 VwGO) or before the criminal courts, the Higher Regional Court in particular (§§ 23 ff. EGGVG). According to recent case law of the administrative courts, a legal remedy whereby the extradited person claims that the German authorities should require the requesting state to transfer him or her back to Germany does not fall within the jurisdiction of the administrative courts but is a matter for the Higher Regional Courts that have exclusive jurisdiction over any issue related to extradition (§§ 13, 29, 33, 79 IRG).235 However, it may be doubted whether the person concerned has a legitimate interest in bringing proceedings (Rechtsschutzbedürfnis)236 because the German

230

Gazeas (2018), p. 285. Ahlbrecht (2017), para. 1213; Riegel and Speicher (2016), p. 255. 232 See also BVerfG, decision of 24 March 2016 – 2 BvR 175/16, Neue Zeitschrift für Strafrecht 2017, p. 46 f. 233 Ahlbrecht (2017), para. 1213; Riegel and Speicher (2016), p. 255. 234 Higher Regional Court Brandenburg, decision of 10 April 2019 – (1) 53 AuslA 66/17 (34/17), juris (para. 14); see also Higher Regional Court Karlsruhe, decision of 7 January 2019 – Ausl 301 AR 95/18, juris (para. 70). 235 Administrative Court Munich, decision of 15 January 2019 – M 30 E 18.5442, juris (paras. 14 f.), referring to the Federal Administrative Court (BVerwG), decision of 18 May 2010 – 1 B 1.10, BVerwGE 137, p. 52. 236 See also Administrative Court München, decision of 15 January 2019 – M 30 E 18.5442, juris (para. 29). 231

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authorities do not dispose of any means to enforce compliance with the guarantee.237 On the other hand, the extradited person may have an interest in the German authorities lodging an official protest against the violation of the guarantee and calling upon the requesting state to fulfil its obligations under international law. This view finds support in a recent decision of an administrative court ordering the competent authority to take all necessary steps to ensure that a person who had been deported illegally to his or her home country could return to Germany.238 Insofar as the guarantee provides for regular checks by diplomatic or consular staff and the German authorities do not fulfil their task, the person concerned may lodge an action for failure to act with the administrative court (allgemeine Leistungsklage). Besides, the person concerned can always request his/her legal counsel to demand that the responsible authorities ensure compliance with the conditions of the guarantee. According to the Federal Administrative Court (Bundesverwaltungsgericht (BVerwG)), this might ensure adequate control of the conditions of detention.239

4.5.3.2

Compensation of Damages

As the IRG does not regulate the monitoring of guarantees and their violation (supra Sect. 4.5.1), it does not contain rules on the compensation of the person concerned either. Due to the lack of particular provisions dealing with a claim for damages in the case of a violation of a given guarantee, the general rules on public liability apply.240

See also BVerfG, decision of 24 March 2016 – 2 BvR 175/16, Neue Zeitschrift für Strafrecht 2017, p. 46 f. 238 Higher Administrative Court Münster, decision of 15 August 2018 – 17 B 1029/18, Neue Zeitschrift für Verwaltungsrecht 2018, p. 1493 (1496). 239 The Court reached this decision in a case concerning a Turkish national living in Germany who was to be deported to Turkey. Against the deportation, he argued, among other things, that the detention conditions in Turkey did not meet the minimum human rights requirements and demanded assurances in this regard. The court did not comply with this request but replaced the possibility of reviewing by the German embassy and consular staff by a review with the help of a legal counsel to be chosen by the respondent in the event of imprisonment. The legal counsel had to be allowed to visit the defendant in the prison if the person concerned was to be imprisoned. During such visits, the person concerned could inform his legal counsel of any deficiencies in the conditions of detention; the legal counsel could then apply for the necessary remedies and appeal. In particular, the legal counsel could also inform the German Embassy in Turkey. The latter could then demand that the responsible Turkish authorities comply with the assurance regarding the conditions of imprisonment. Under the given circumstances, the court thereby considered sufficient control of the conditions of detention to be given, see BVerwG, decision of 9 November 2017, 1 VR 9/17, juris (para. 5) and also see BVerwG, decision of 19 September 2017 – 1 VR 7/17, juris. 240 § 839 German Civil Code (Bürgerliches Gesetzbuch, BGB): “If an official intentionally or negligently breaches the official duty incumbent upon him in relation to a third party, then he must compensate the third party for damage arising from this.” in connection with Art. 34 Sentence 237

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In the case at hand, a claim for damages would presume a liability of the German state for either the wrongdoing of the requesting state or the wrongdoing of the German state itself. The assignment of the action of the requesting state to the German state (as the requested state), however, generally proves to be very difficult to justify and is—in principle—only possible if there are individual contractual provisions.241 As a consequence, the person concerned may only claim damages against the Federal Republic of Germany or one of its states. Such a claim requires a violation of official duty on the part of the official acting or the authority concerned.242 Thus, the decision to grant the foreign request must be found to be illegal and, thereby, in violation of the rights of the person claiming compensation because the competent authority accepted insufficient guarantees and granted legal assistance to the requesting state instead of refusing the foreign request. In contrast, the mere violation of the guarantee by the requesting state does not give rise to a claim for compensation against the authorities acting on behalf of Germany (the requested state). Furthermore, a claim for compensation requires intentional or negligent behaviour.243 However, it appears most unlikely that either of these conditions could be proven where the competent authority had accepted a guarantee that the requesting state did not comply with. As the decision to extradite is usually preceded by the so-called approval procedure (Zulässigkeitsverfahren), the granting authority may rely on the court’s assessment, and if a senate of the competent Higher Regional

1 GG: “If any person, in the exercise of a public of him, violates his official duty to a third party, liability shall rest principally with the state or public body that employs him.” 241 See e.g. Art. 64 para. 2 N.SIS.II (COUNCIL DECISION 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) Liability: “If the Member State against which an action is brought is not the Member State issuing the alert, the latter shall be required to reimburse, on request, the sums paid out as compensation unless the use of data by the Member State requesting reimbursement infringes this Decision.”; Art. 43 para. 1 to 4 of the Schengen acquis - 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 on the gradual abolition of checks at their common borders: “Where, in accordance with Articles 40 and 41 of this Convention, officers of a Contracting Party are operating in the territory of another Contracting Party, the first Contracting Party shall be liable for any damage caused by them during their operations, in accordance with the law of the Contracting Party in whose territory they are operating. 2. The Contracting Party in whose territory the damage referred to in paragraph 1 was caused shall make good such damage under the conditions applicable to damage caused by its own officers. 3. The Contracting Party whose officers have caused damage to any person in the territory of another Contracting Party shall reimburse the latter in full any sums it has paid to the victims or persons entitled on their behalf. 4. Without prejudice to the exercise of its rights vis-à-vis third parties and with the exception of paragraph 3, each Contracting Party shall refrain in the case provided for in paragraph 1 from requesting reimbursement of damages it has sustained from another Contracting Party.” 242 See § 839 BGB, Art. 34 sentence 1 GG. 243 §§ 276, 827, 828 BGB.

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Court has deemed the surrender to be admissible, there is—in general—no room for a culpable breach of duty in the light of public liability (so-called KollegialgerichtsRichtline244).245

4.6

Effectiveness of Judicial Review

4.6.1

General Requirements (Access to Information and Suspensory Effect of the Remedy)

4.6.1.1

Informing the Person Concerned in the Requested State

The IRG does not provide for general rules on judicial review in transnational criminal proceedings but only includes specific rules on extradition, the enforcement of foreign judgments and the gathering of evidence. These provisions are supplemented by the general rules on judicial review in (domestic) criminal proceedings, which shall apply accordingly (§ 77 para. 1 IRG). In extradition proceedings, the legislator established a self-standing regime of ex ante judicial review by the Higher Regional Court. Upon receipt of an extradition request, the person to be surrendered shall be examined by the judge at the local court (Amtsgericht); in particular, he or she shall be asked whether and if so on what grounds he or she wishes to object to extradition (§ 28 para. 2 IRG; see also the examination after arrest: § 22 para. 2 IRG). The Higher Regional Court itself may examine the person sought or hold an oral hearing (§ 30 paras. 2, 3 IRG) but usually gives its decision on the basis of the file of the case (extradition documents and written statements). However, the person wanted for extradition has the right to make written statements, and the Higher Regional Court is obliged to provide him or her with the extradition request and supplementary documents.246 The extradition request must contain a description of the applicable laws (§ 10 para. 3 no 3 IRG),

Federal Administrative Court of Germany (BVerwG), judgment of 3 June 2003 – 5 C 50/02, Neue Zeitschrift für Verwaltungsrecht 2004, p. 104 (105): “Both the Federal Administrative Court (BVerwG) and, in particular, the civil courts responsible for conducting official liability proceedings assume as a rule that a civil servant is not at fault if a collegial court composed of several professional judges has regarded the official activity as objectively lawful (so-called “Collegial Court Directive”).” 245 See e.g. Federal Court of Justice of Germany (BGH), judgment of 29 May 1958 – III ZR 38/57, Neue Juristische Wochenschrift 1959, p. 37; BGH, judgment of 28 June 1971 – III ZR 111/68, Neue Juristische Wochenschrift 1971, p. 1701; BGH, judgment of 25 September 1980 – III ZR 74/78, Neue Juristische Wochenschrift 1981, p. 677; Federal Administrative Court of Germany (BVerwG), judgment of 15 December 1972 – IV C 18/71, Neue Juristische Wochenschrift 1973, pp. 1014f.; see regarding possible exceptions to this rule and criticism Papier and Shirvani (2017), BGB § 839 para. 290. 246 BVerfG, decision of 13 March 1979 – 1 BvR 1085/77, BVerfGE 50, p. 381; decision of 17 March 1983 – 2 BvR 731/80, BVerfGE 64, p. 135; Böhm (2014), § 30 para. 39. 244

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i.e. the relevant substantive criminal law (see also, with regard to European arrest warrants, § 83a para. 1 no. 4 IRG).247 A description of the legal basis of the extradition request, however, is not required. If the person to be surrendered does not have sufficient command of German, the essential documents (including the extradition request) shall be translated into a language he can understand (§ 77 para. 1 IRG, §§ 185, 187 Court Constitution Act, Gerichtsverfassungsgesetz (GVG)). When the court has ruled on the admissibility of extradition, the person to be extradited shall be notified of the decision (§ 32 para. 1 IRG). In contrast, a notification of the final decision to grant extradition is not foreseen because, according to traditional understanding, there is no need for a legal remedy as judicial protection is provided ex ante via the admissibility procedure.248 However, insofar as the final granting decision may interfere with individual rights, it must be subject to judicial review (Art. 19 para. 4 GG, supra Sect. 4.1.2). In proceedings on the execution of a European arrest warrant, the foregoing principles apply accordingly; in particular, the person sought must be heard with regard to the executing authority’s intended decision not to invoke an optional ground for refusal (§ 79 para. 2 sent. 3 IRG).249 The procedural framework for the enforcement of foreign judgments provides for a right to be heard (§ 52 para. 3 IRG). It refers to the relevant provisions in extradition proceedings (§ 52 para. 2 in connection with § 30 paras. 2, 3 IRG). If the judgment originates from another EU Member State, the law expressly requires the convicted person to be served with the judgment and the request for enforcement (§ 84f para. 2 IRG). As far as the gathering of evidence is concerned, the person concerned will not informed of the request before the requested investigative measure has been carried out if this would jeopardise the investigation (e.g. searches or surveillance measures). In this case, it shall be sufficient to notify the person concerned subsequently.250 Where a coercive measure is directly enforced, the person concerned will be served with a reasoned decision (e.g. to grant a search warrant, § 67 para. 3 IRG), which can be challenged by a legal remedy (e.g. a complaint, § 77 para. 1 IRG in connection with § 304 StPO). In case of ongoing surveillance measures, the requesting state may have a legitimate interest in postponing the notification so that the evidence is transmitted before the person concerned is informed of the decision to grant legal assistance. However, the German authorities must ensure notification within due time in order to enable the person concerned to exercise his right to judicial review (no. 77a para. 1 Richtlinien für den Verkehr mit dem Ausland in strafrechtlichen Angelegenheiten (RiVASt)).251 The provisions on mutual legal assistance do not expressly establish a right to be informed of the request, but the right to judicial review and the right to be

Vogel (2009), § 10, para. 41. Pieronczyk (2018), pp. 69 f. 249 Böse (2012), § 79 p. 22. 250 Vogel and Burchard (2017), Vor § 1 para. 269. 251 Johnson (2016), § 59 para. 35. 247 248

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heard implicitly require a reasoned decision and, thereby, information about the foreign request as the basis of the granting decision.

4.6.1.2

Informing the Person Concerned in the Requesting State

As a requesting state, the Federal Republic of Germany usually does not inform the person concerned. On the one hand, informing the suspect would jeopardise the measure (e.g. arrest and extradition); on the other, a formal notification might interfere with the territorial sovereignty of the requested state.252 Therefore, the person concerned is usually informed by the competent authorities of the requested state. For instance, the German authorities may request the authorities of the requested state to notify the person convicted of a request to transfer the enforcement of a criminal sentence (§ 85 para. 3 sent. 2 IRG). Whereas German authorities are not obliged to inform the person concerned ex officio, the person concerned may exercise his or her rights as a data subject (Art. 14 ff. Directive 2016/680/EU, §§ 57, 58 Federal Data Protection Act, Bundesdatenschutzgesetz (BDSG)), in particular the right to access information about his/her personal data stored in international databases such as the SIS II (Art. 67 Regulation [EU] 2018//1862). Access, however, may be denied, inter alia, in order to avoid the obstruction of criminal investigations (Art. 67 para. 3 lit a Regulation [EU] 2018/1862).

4.6.1.3

Access to the File

The right of access to files in judicial proceedings is an expression of the right to information about the state of affairs as part of the fundamental right to be heard in court proceedings (Art. 103 para. 1 GG).253 In admissibility proceedings, a right of access to files is derived from § 77 para.1 IRG referring to the provisions of the German Code of Criminal Procedure (Strafprozessordnung (StPO)), including the right of counsel to inspect the file (§ 147 para. 1 StPO). Where the person concerned does not have indirect access to the file (via his defence counsel), the court shall grant direct access (§ 147 para. 4 StPO).254 When access to the file has been granted, the person must be granted sufficient time to submit observations before the court rules on admissibility; in this regard, eight to ten days is considered appropriate.255 The right to access to files in the granting procedure is governed by the rules of administrative law, even though the VwVfG is not applicable (supra Sect. 4.2.1). As

See with regard to the latter argument: Johnson (2016), § 59 para. 25. Radtke and Hagemeier (2019), para. 10. 254 Hackner and Riegel (2020), § 40 para. 44. 255 BVerfG, decision of 20. January 1980 - 1 BvR 1352/79, in: Eser et al. (1989), p. 175. 252 253

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a consequence, the right of access to files under administrative, procedural law (§ 29 VwVfG) is not applicable either.256 However, insofar as the granting decision may violate individual rights and, thus, must be subject to judicial review (supra Sect. 4.6.1.1), the right to a fair hearing and the rule of law require the disclosure of the file insofar as the information to be disclosed is necessary to raise objections to the decision to grant the request.257 In any case, access is limited to the file maintained by German authorities and courts; unless the files of the requesting state have been attached to the request, the right of access to the files does not include them.258 As a rule, the file usually only contains the request for legal assistance and, if applicable, the granting decision.259

4.6.1.4

Suspensive Effect of Legal Remedies in the National Legal System

In general, legal remedies against the execution of a request do not have a suspensory effect.260 However, in proceedings related to extradition and the transfer of prisoners, the person to be surrendered enjoys judicial protection ex ante; i.e., the court has to rule extradition (or transfer of enforcement) admissible before the person is surrendered or enforcement is transferred (§ 12, § 56 para. 1, § 71 para. 4 IRG). If the decision of the court is challenged by lodging a constitutional complaint, the remedy has no suspensory effect, but the appellant may apply for an interlocutory injunction (§ 32 BVerfGG).261 As the existing procedural framework does not provide for a legal remedy against the final granting decision, there are no rules on its suspensory effect either. As far as other forms of mutual legal assistance (gathering of evidence) are concerned, the legal remedies in domestic criminal proceedings apply accordingly (§ 77 para. 1 IRG, supra Sect. 4.1.2.1; see also Art. 14 para. 6 EIO Directive). These rules (§ 98 para. 2 sent. 2, § 304 StPO) do not provide for a suspensory effect because this would jeopardise the investigation (risk of tampering with evidence). However, the court may, upon application of the person concerned, suspend the execution of the measure (§ 77 para. 1 IRG, § 307 para. 2 StPO). Insofar as the transfer of evidence is, upon application of a third party, subject to the admissibility procedure (§ 61 para. 1 IRG), the evidence must not be transferred to the requesting state (§ 61 paras. 3, 4 IRG); in this regard, the remedy exceptionally has a suspensory effect.

256

Pieronczyk (2018), pp. 116 f. Ahlbrecht and Schlei (2013), p. 267; Pieronczyk (2018), p. 119. 258 Hackner and Riegel (2020), § 40 para. 43. 259 Ahlbrecht and Schlei (2013), p. 267. 260 See regarding extradition also Pieronczyk (2018), p. 176. 261 BVerfG, decision of 23 March 2011 – 2 BvR 882/09, BVerfGE 128, p. 282 (311); Pieronczyk (2018), p. 186. 257

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Suspensive Effect of Legal Remedies in the Foreign Legal System

As a matter of principle, German law does not provide for a suspensory effect of judicial remedies lodged with a court of the requesting state. Furthermore, it would appear inconsistent with the principle that such an effect is not foreseen in domestic criminal investigations (supra Sect. 4.6.1.4).

4.6.1.6

Consequences in the Case That International Cooperation Has Been Declared Inadmissible Before Execution

If the court holds that international cooperation is inadmissible before it is executed, the requested assistance will be denied (§§ 12, 56 para. 1 and § 61 para. 4 IRG; see supra Sect. 4.2.1). The same applies to cooperation with another EU Member State (§§ 79, 84h para. 1, 91i IRG). As far as the execution of the request and the necessary coercive measures are concerned, the general rules on the judicial protection of the person concerned apply accordingly. If a person has been arrested because another state had filed a request for extradition, he or she shall be brought without delay, but no later than the day following his/her arrest, before the judge of the nearest local court (§ 22 para. 1 IRG). The judge shall examine the arrested person but may only order to release him/her where the arrested person is not the person sought for extradition (§ 22 para. 3 sent. 1 IRG) because any decision on extradition detention falls within the jurisdiction of the Higher Regional Court that decides whether or not to issue an extradition arrest warrant (§ 13 para. 1, § 15 ff. IRG). As a consequence, the local court must order the person sought to be detained pending the decision by the competent Higher Regional Court (§ 22 para. 3 sent. 2 IRG; see also § 21 para. 3 IRG) even if the substantive requirements for extradition (and, thus, for further detention) were not met. However, due to the considerable weight of the right to liberty and the constitutional safeguards to protect this freedom (Art. 104 paras. 2, 3 GG), the Constitutional Court held that §§ 21, 22 IRG should be interpreted in conformity with the constitution and that the judge at the local court shall assess whether extradition detention is justified where the facts of the case indicate that extradition may turn out inadmissible.262 In the latter case, the judge may decide to release the arrested person; if the case, however, requires an in-depth examination of the facts and further information from the requesting state, the decision shall be taken by the Higher Regional Court.263 Persons who suffered damages from wrongful criminal prosecution in Germany may claim compensation according to the Act on compensation for criminal prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen (StrEG)). This Act applies accordingly to extradition detention in a foreign state that has been requested to grant extradition (and detention) by the German state (§ 2 para.

262 263

BVerfG, decision of 16 September 2010 – 2 BvR 1608/07, Strafverteidiger 2011, p. 170, (171 f). Böhm (2012), § 22 paras. 20 ff.

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3 StrEG). In contrast, the Federal Supreme Court (Bundesgerichtshof (BGH)) held that, as a rule, the responsibility for the arrest and detention of a person sought for extradition solely lies with the requesting state and that, as a consequence, a wrongfully detained person could not claim compensation from the German authorities executing a foreign request for extradition.264 However, a person has a right to compensation if the responsibility of the German authorities is clearly established, for instance where the authorities arrested and detained a wrong person, i.e. a person other than the person sought for extradition.265 This distinction has been criticised in legal literature, which has demanded to provide for a compensation scheme that applies to any form of wrongful extradition detention.266 In any case, the necessary expenses incurred by a wrongful prosecution are to be charged to the state treasury even if the responsibility does not lie with the German authorities.267

4.6.2

Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

4.6.2.1

Finding a Lawyer in the Foreign State

German law does not provide for any assistance in finding a lawyer in a foreign state (the requesting or the requested state). The person concerned can turn to the Federal Chamber of Lawyers (Bundesrechtsanwaltkammer) for help.268

4.6.2.2

Translation of Legal Remedies

In principle, the language of the court is German (§ 184 GVG). However, if the person concerned does not have a command of the German language, an interpreter should be called in (§ 185 GVG). Nevertheless, the documents originating from the court are in German. To enable the person concerned to understand the documents and the course of the procedure and to ensure a fair and legal process, at least documents essential for the proceedings must be transmitted to him in a language

Federal Court of Justice of Germany (BGH), decision of 17 January 1984 – 4 ARs 19/83, BGHSt 32, p. 221 paras. 10f. 265 Federal Court of Justice of Germany (BGH), decision of 9 June 1981 – 4 ARs 4/81, BGHSt 30, p. 152 paras. 18/19. 266 Pieronczyk (2018), p. 182. 267 § 77 IRG in conjunction with §§ 467 and 467a StPO, see Federal Court of Justice of Germany (BGH), decision of 17 January 1984 – 4 ARs 19/83, BGHSt 32, p. 221. 268 The webpage (https://www.brak.de/) forwards to a European platform (“find a lawyer”): https:// e-justice.europa.eu/content_find_a_lawyer-334-de.do. 264

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known to him.269 Accordingly, the court shall use an interpreter or translator for the accused or convicted person who does not speak German insofar as this is necessary for the exercise of his criminal procedural rights (§ 187 para. 1 GVG). The court shall inform the defendant, in a language he or she understands, that he/she may claim the free consultation of an interpreter or translator for the entire duration of the criminal proceedings (§ 187 para. 1 sent. 2 GVG). The written translation of detention orders, indictments, orders of punishment and non-appealable judgments is generally required for the exercise of the criminal procedural rights of the defendant who is not proficient in the German language (§ 187 para. 2 GVG). An excerpted written translation may be sufficient if the procedural rights of the defendant are thereby safeguarded (§ 187 para. 2 sent. 2 GVG). The written translation shall be made available to the accused without delay (§ 187 para. 2 sent. 3 GVG). Under the same conditions, a written translation may be substituted by an oral translation of the documents or an oral summary thereof (§ 187 para. 2 sent. 4 GVG). As a rule, an oral translation is sufficient where the accused is assisted by counsel (§ 187 para. 2 sent. 5 GVG).

4.6.2.3

(Other) Procedural Support

The framework for international cooperation in criminal matters does not provide for particular support to the defendant in challenging the requested measures in both the requesting and the requested states.

4.6.3

Ineffectiveness of Ex Post Facto Judicial Review?

If a legal remedy does not have a suspensory effect, it could happen that the request has already been executed, i.e. the information transferred or the person surrendered/ extradited or the judgment enforced before it is finally found that legal assistance must not be granted.

4.6.3.1

Consequences in the Requesting State After the Transfer Was Found Illegal by a Foreign Court in the Requested State

The fact that the decision to grant legal assistance or its execution was declared illegal by the courts of the requested state has no direct impact on the procedure in Germany. The decision of foreign authorities on extradition is not subject to the

269

See Walther (2019), § 184 paras. 3, 4.

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review of lawfulness by German courts.270 Accordingly, the lawfulness or unlawfulness of the decision to grant extradition under foreign law is irrelevant to domestic criminal proceedings.271 The same applies to the review of investigative measures carried out in the requested state so that the violation of foreign law is of no relevance for the use or exclusion of evidence in domestic criminal proceedings (supra Sect. 4.2.3.4.2.1). This approach has been criticised by legal scholars (supra Sect. 4.2.3.4.2.2) and will render any judicial review by the requested state more or less ineffective. Nevertheless, the situation might have changed under EU law: where the execution of the European investigation order has been successfully challenged before a court of the executing Member State, the criminal court of the issuing Member State shall take this decision into account when deciding upon the admissibility of the evidence obtained by that order (Art. 14 para. 7 Directive 2014/41/EU). According to the explanatory memorandum, the general rules and principles on the exclusion of evidence apply accordingly; i.e., illegally obtained evidence will not per se be excluded from the trial.272 In legal literature, however, it has been argued that a successful challenge to the decision to execute the order will, as a rule, render the evidence inadmissible in the issuing Member State.273

4.6.3.2

Consequences in the Requesting State After the Execution Was Found Illegal by a Domestic Court

In the case that the Federal Republic of Germany has executed a request that was later declared inadmissible by a competent court, there is no legal obligation of the German state to inform the foreign state. The competent authority does not have to call upon the requesting state to return the evidence or delete the information. Unfortunately, once carried out, the German state cannot force the requesting state to return the person concerned or information gathered to Germany if the constitutional complaint proves to be well founded. The German authorities do not have the legal means to reverse the surrender of a person or evidence if the requesting state has violated its obligations under a guarantee (supra Sect. 4.5.3); it does not have these means where the surrender has turned out unlawful under its own laws.

Böse (2002), p. 153; see BVerfG, decision of 20 October 1977 – 2 BvR 631/77, BVerfGE 46, p. 214 para. 20 referring to a general rule of international law in this regard; see also BVerfG, decision of 11 October 1951 – 1 BvR 95/51, BVerfGE 1, p. 10 para. 9; decision of 21 March 1957 – 1 BvR 65/54, BVerfGE 6, p. 290 para. 18. 271 Higher Regional Court München, decision of 13 June 2019 – 2 Ws 587/19, juris (para. 20); Böse (2002), p. 152. 272 BT-Drucks. 18/9757, p. 32; see also Böse (2014), p. 163. 273 Böhm (2017a), p. 1515. 270

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Repatriating Individuals and Evidence After Illegal Transfer

At present, the framework of international cooperation in criminal matters does not provide for an obligation of German authorities to make legal assistance subject to the condition that the requesting state will return the surrendered person or transferred evidence if a German court has ruled the surrender or transfer illegal. Insofar as the competent authority is not bound by obligations of international law or EU law, it may impose such conditions in individual cases. Such an approach would presumptively depend very much on the individual case in question and would be based solely on the discretion of the competent authority.

References Ahlbrecht H (2017) Das Rechtshilfeverfahren. In: Ahlbrecht H, Böhm KM, Esser R, Eckelmans F (eds) (2017) Internationales Strafrecht, 2nd edn. C.F. Müller, Heidelberg Ahlbrecht H, Schlei M (2013) Verteidigung gegen und mit Rechtshilfe. Strafverteidiger Forum 7:265–278 Ambos K (2019) Zur Unabhängigkeit der deutschen Staatsanwaltschaft. JuristenZeitung 74:732–735 Böhm KM (2012) §§ 20 – 22 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Böhm KM (2014) §§ 29 – 32 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Böhm KM (2017a) Die Umsetzung der Europäischen Ermittlungsanordnung. Neue Juristische Wochenschrift 70:1512–1515 Böhm KM (2017b) Allgemeine Strukturen des Verfahrens. In: Ahlbrecht H, Böhm KM, Esser R, Eckelmanns F (eds) (2017) Internationales Strafrecht, 2nd edn. C.F. Müller, Heidelberg Böhm KM (2017c) Das Auslieferungsverfahren. In: Ahlbrecht H, Böhm KM, Esser R, Eckelmanns F (eds) (2017) Internationales Strafrecht, 2nd edn. C.F. Müller, Heidelberg Böhm KM, Werner E (2014) §§ 114 – 115a StPO. In: Knauer Ch, Kudlich H, Schneider H (eds) Münchener Kommentar zur Strafprozessordnung. C.H. Beck, München Böse M (2002) Die Verwertung im Ausland gewonnener Beweismittel im deutschen Strafverfahren. Zeitschrift für die gesamte Strafrechtswissenschaft 114:148–182 Böse M (2007) Der Grundsatz der Verfügbarkeit von Informationen in der strafrechtlichen Zusammenarbeit der Europäischen Union. V&R unipress, Göttingen Böse M (2012) Vor § 78 – § 81 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Böse M (2013) Comparative overview of the country reports and surveys. In: Albers P, Beauvais P, Bohnert J-F, Böse M, Langbroek P, Renier A, Wahl T (2013) Final Report, Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters. Available at https://www.government.nl/documents/reports/2013/09/27/final-reporttowards-a-common-evaluation-framework-to-assess-mutual-trust-in-the-field-of-eu-judicialcooperation-in-criminal-m Böse M (2014) Die Europäische Ermittlungsanordnung – Beweistransfer nach neuen Regeln? Zeitschrift für Internationale Strafrechtsdogmatik 9:152–164 Böse M (2017) Neue Standards für Abwesenheitsverfahren in “Fluchtfällen”? Zu den Auswirkungen der Richtlinie 2016/343/EU auf die Auslieferung und Vollstreckungshilfe in der Europäischen Union. Strafverteidiger 37:754–759

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Böse M (2018a) An assessment of the Commission’s proposals on electronic evidence. Manuscript completed in September 2018. © European Union 2018. Available at http://www.europarl. europa.eu/supporting-analyses Böse M (2018b) §§ 84 – 85 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Brodowski D (2016) Die drohende Verletzung von Menschenrechten bei der Anerkennung Europäischer Haftbefehle auf dem Prüfstand: Die zweifelhafte Aktivierung der Verfassungsidentität durch das BVerfG und eine Kurskorrektur in der Rechtsprechung des EuGH. Juristische Rundschau 2016:415–432 Classen CD (2005) Rechtsschutz gegen fremde Hoheitsgewalt – zu Immunität und transnationalem Verwaltungshandeln. Verwaltungsarchiv 96:464–484 Eser A, Lagodny O, Wilkitzki P (1989) Internationale Rechtshilfe in Strafsachen: Rechtsprechungssammlung 1949–1992, Freiburg i. Br.: edition iuscrim Gazeas N (2018) Zusicherungen im Auslieferungsverkehr innerhalb der Europäischen Union. Golthammer’s Archiv für Strafrecht 165:277–286 Gleß S (2013) Grenzüberschreitende Beweissammlung. Zeitschrift für die gesamte Strafrechtswissenschaft 125:573–608 Gleß S, Wahl T (2020) Das Schengener Informationssystem – Einführung (III E 2). In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Gleß S, Wahl T, Zimmermann F (2020) § 73 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Grotz M (2014a) § 71 IRG: In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Grotz M (2014b) § 74 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Hackner T (2020a) Einführung IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T (2020b) § 10 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen. C.H. Beck, München, 6th edn. C.H. Beck, München Hackner T (2020c) §§ 71 – 72 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T (2020d) § 74 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T (2020e) § 78 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T, Riegel R (2020) § 40 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Hackner T, Schierholt C (2017) Internationale Rechtshilfe in Strafsachen, 3rd edn. C.H. Beck, München Hackner T, Schomburg W (2012) Vor § 68 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T (eds) (2012) Internationale Rechtshilfe in Strafsachen, 5th edn. C.H. Beck, München Hartwig M (2018) Bericht zur völkerrechtlichen Praxis der Bundesrepublik Deutschland im Jahr 2016. Zeitschrift für ausländisches Recht und Völkerrecht 78:717–788 Herdegen M (2020) Völkerrecht, 19th edn. C.H. Beck, München Huber B (2015) Zur Prüfung des Asylanspruchs im Auslieferungsverfahren bei drohender politischer Verfolgung (Anmerkung zu einer Entscheidung des BVerfG, Beschluss vom 09.04.2015 – 2 BvR 221/15). Neue Zeitschrift für Verwaltungsrecht 34:1206–120 Johnson C (2012) §§ 60 – 61 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg

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Johnson C (2016) Vor § 59 - § 59 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Lagodny O, Zimmermann F (2020) § 61 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Meyer F (2016) Zur Frage der Auslegung des Rahmenbeschlusses zum Europäischen Haftbefehl (Anmerkung zum Urteil des EuGHs vom 05.04.2016 – C-404/15). JuristenZeitung 71:621–624 Meyer F, Hüttemann SD (2016) Internationale Fahndung nach Personen – von Steckbriefen, Rotecken und Funksprüchen. Zeitschrift für die gesamte Strafrechtswissenschaft 128:394–445 Papier HJ, Shirvani F (2017). § 839 BGB. In: Säcker FJ, Rixecker R, Oetker H, Limperg B (eds) (2017) Münchener Kommentar zum Bürgerlichen Gesetzbuch, 7th edn. C.H. Beck, München Pieronczyk AK (2018) Die prozessualen Rechte des Verfolgten im Auslieferungsverfahren nach dem Zweiten Teil des IRG. Nomos, Baden-Baden Rackow P (2020) In: Ambos K, König S, Rackow P (eds) (2020) Rechtshilferecht in Strafsachen. 2nd edn. Baden-Baden, Nomos Radtke H, Hagemeier A (2019) Art. 103 GG. In: Epping V, Hillgruber C (eds) BeckOK zum Grundgesetz, 41st edn. C.H. Beck, München Riegel R (2020) §§ 28 – 33 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Riegel R, Speicher K (2016) Die Haftsituation im ersuchten Staat als Auslieferungshindernis. Strafverteidiger 4:250–256 Schierholt C (2020a) §§ 2 – 5 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Schierholt C (2020b) §§ 11 – 14 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Schomburg S, Hackner T, Zimmermann F (2020a) §§ 7 – 8 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (2020b) Einleitung. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Einleitung. Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Schultheis U (2019) §§ 119 – 132a StPO. In: Hannich R (ed) (2019) Karlsruher Kommentar zur Straßprozessordnung, 8th edn. C.H. Beck, München Schuster FP (2006) Verwertbarkeit im Ausland gewonnener Beweise im deutschen Strafprozess. Duncker & Humblot, Berlin Schuster FP (2014) Anmerkung zu BGH, Beschluss vom 21.11.2012 – 1 StR 310/12. Verwertung von unter Verstoß gegen Rechtshilfebestimmungen im Ausland erlangten Beweise. Strafverteidiger 34:198–201 Trautmann S (2020) § 93 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Trautmann S, Zimmermann F (2020) § 59 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Vogel J (2009) § 10 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Vogel J, Burchard C (2009) § 2 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Vogel J, Burchard C (2011) §§ 75 – 77 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg Vogel J, Burchard C (2017) Vor § 1 IRG. In: Grützner H, Pötz PG, Kreß C, Gazeas N (eds) (2019) Internationaler Rechtshilfeverkehr in Strafsachen, 47th suppl. C.F. Müller, Heidelberg

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Vogler T (1981) Rechtsschutz im Auslieferungsverfahren. Europäische GRUNDRECHTEZeitschrift 8:417–423 Walther A (2019) §§184 – 191a. In: Graf JP (ed) BeckOK zum GVG, 5th edn. C.H. Beck, München, Stand: 01.11.2019 Zimmermann F (2020) §§ 80 – 81 IRG. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) (2020) Internationale Rechtshilfe in Strafsachen, 6th edn C.H. Beck, München

Martin Böse Professor of Criminal Law, Criminal Procedure, International and European Criminal Law, University of Bonn, Germany. Maria Bröcker Research assistant, University of Bonn, Germany.

Chapter 5

Country Report “Italy” Tommaso Rafaraci

5.1 5.1.1

Overview Judicial Protection in the Criminal Justice System (the Constitutional Framework)

The guarantees under the Italian Constitution providing for judicial protection are two. One deals with the general right of defence (Art. 24 of the Italian Constitution, hereinafter ‘Cost.’). The other one concerns the exercise of jurisdiction, more precisely the access to a remedy (Art. 111.7 Cost.). These guarantees apply to national and transnational criminal proceedings. Whereas Art. 24.1 Cost. provides that everyone can call upon a judge to obtain protection of his/her rights and legitimate interests, Art. 24.2 recognises the right of defence as an inviolable right in every state and phase of proceedings. Furthermore, Art. 24.3 grants free legal aid to those who cannot afford a defence lawyer, while Art. 24.4 ensures compensation for miscarriage of justice under conditions and according to modalities determined by law. This is a very general provision, affecting both criminal and civil proceedings and granting the broadest right of defence, of which the right to judicial protection is one of the different possible iterations. Article 111.7 Cost. provides that it shall always be possible to appeal before the Court of Cassation sentences and any other decision involving deprivation of liberty issued by an ordinary or special judicial authority for breaches of law. This principle may be derogated only in the case of sentences issued by military courts in war times.

T. Rafaraci (*) University of Catania, Catania, Italy © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_5

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This provision deals specifically with judicial protection and applies to any sentence, as well as any other decision, but only concerning personal liberty. To this extent, this provision constitutes only the minimum sufficient guarantee that needs to be respected to allow legitimate deprivation of freedom. Indeed, the legal system under the Code of Criminal Procedure (CCP) provides for higher guarantees where personal liberty is at stake, by widening the scope of judicial protection beyond appeal before the Court of Cassation (for example, the system allows for a remedy of ‘re-examination’—riesame—before the ‘re-examination Tribunal’— Tribunale del riesame—against precautionary measures). Strictly connected to this provision is the one under Art. 111.6 Cost., according to which all judicial decisions shall be motivated. It is worth mentioning that Art. 111 Cost. deals with the broader right to a fair trial. This article was modified in 1999 to make the exercise of jurisdiction, which it regulates, compatible with the fundamental rights and principles stemming from the concept of ‘fair trial’ of European origin. Under Art. 111 Cost., the following rights and principles are guaranteed: fair trial regulated by law, right to cross-examination, impartiality of judges, reasonable length of proceedings, right to be informed of the accusation promptly, right to a reasonable time and reasonable conditions to prepare one’s defence, right to confrontation with adverse witnesses and right to examination of own witnesses under the same conditions as the public prosecution, and the right to be assisted by an interpreter for those who do not speak the language of the proceedings. Also, guilt can never be founded on statements issued by witnesses who avoided to be crossexamined by the defence. The law regulates exceptions to the rule on crossexamination.

5.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

5.1.2.1

The General Framework of International Cooperation in Criminal Matters

Under international judicial cooperation, when Italy is the requested state, the bodies involved are political (the Ministry of Justice) and judicial (the Court of Appeal in case of extradition requests1 or enforcement of foreign judgments2 and the Public Prosecutor or the judge of preliminary investigations in case of requests for legal assistance3).

Arts. 697 and 701 of the Code of Criminal Procedure (hereinafter “c.p.p.”). Arts. 730, 731 and 734 c.p.p. 3 Arts. 723 and 724 c.p.p. 1 2

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Competences in international judicial cooperation procedures have always been distributed between political and judicial authorities, but only recently—after the reform of Chapter XI of the Italian Code of Criminal Procedure, entitled ‘Jurisdictional relations with foreign authorities’, carried out by Legislative Decree n. 149/20174— the competence of judicial authorities in ‘passive’ cooperation procedures has been differentiated according to the modality of cooperation at issue. Before 2017, the only judicial authority competent to grant the execution of any kind of judicial cooperation request was the Court of Appeal. In contrast, today, as mentioned, the competent judicial authority to grant the execution of a legal assistance request is the Public Prosecutor or the judge of preliminary investigations when the requested measure requires the ‘participation’ of a judge.5 The Court of Appeal remains competent to decide on requests for extradition and enforcement of a foreign judgment. When Italy is the requesting state, the bodies involved are also political (the Ministry of Justice) and judicial (the General Prosecutor in case of extradition requests,6 the Public Prosecutor or the judge according to their respective competences in case of requests for legal assistance7 and the Court of Appeal or the Public Prosecutor in case of requests for the enforcement of Italian judgments abroad, depending on whether the judgment is about deprivation of liberty or not8). Competences in ‘active’ cooperation procedures have always been differentiated among various judicial authorities according to the modality of cooperation at issue. More on the subject, cooperation procedures under the Italian Code of Criminal Procedure are regulated as follows.

5.1.2.1.1

Extradition

Incoming Requests Once the Ministry of Justice receives a request for extradition, if he/she decides not to immediately deny it (discretionally because of sovereignty, public order or other essential interests of the state, or when the requested person is an Italian citizen9; compulsorily when the request concerns political criminal offences, or there is the risk that the extradited person will be persecuted or discriminated for his/her race, religion, sex, nationality, language, political opinions or personal or social conditions, or will be subject to cruel, inhuman or degrading

4

On the 2017 reform see extensively Piacente (2018), pp. 25 ff. Many criticised the competence of the Court of Appeal, deemed to be not the best judicial authority to handle legal assistance requests. See Calvanese (2019), pp. 61 ff. 6 Art. 720 c.p.p. 7 Art. 727 c.p.p. 8 Arts. 742 and 743 c.p.p. 9 Art. 26 Cost. allows for extradition of citizens when this is expressly provided for by international treaties. However, when an international treaty allows to refuse extradition of the citizen, the Ministry of Justice shall refuse extradition by taking into account the seriousness of the crime, the relevance of the harm and the personal conditions of the requested person (Art. 697.1-ter c.p.p.). 5

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treatments or any other acts in violation of fundamental rights10, or when the crime for which extradition has been requested is punished in the requesting state by death penalty11) (Arts. 697–698 CPP), he/she will forward the request to the General Prosecutor at the Court of Appeal (Art. 703.1 CPP), which shall summon the requested person for identification and questioning.12 On this occasion, the General Prosecutor may also receive the consent to the extradition or the renunciation to enjoy the speciality principle by the requested person.13 During the questioning, the requested person must be assisted by a defence lawyer, who must be given notice at least 24 hours in advance (Art. 703.2 CPP). Within 30 days, the General Prosecutor shall submit his/her conclusions to the Court of Appeal (Art. 703.4 CPP).14 The Court of Appeal will hold a hearing, the date of which must be notified at least 10 days before to the requested person, his/her defence lawyer, the General Prosecutor and the representative of the requesting state.15 If the requested person is not assisted by a defence lawyer, the Court of Appeal shall appoint a court lawyer and, if necessary, shall appoint an interpreter.16 No later than 5 days before the hearing, the parties can file ‘written pleadings’ (memorie) (Art. 704.1 CPP). The Court shall decide by sentence within 6 months from the submission of the conclusions by the General Prosecutor after an inquiry and after having heard the General Prosecutor, the defence lawyer and, if present, the requested person, as well as the representative of the requesting state (Art. 704.2 CPP). If the sentence is in favour of extradition, the Court of Appeal shall decide whether to apply a precautionary measure while awaiting material surrender upon the request of only the Ministry of Justice (Art. 704.3 CPP). In any case, even before the decision on extradition is taken, the Court of Appeal shall decide whether to

10 The treatment must result in an unreasonable, disproportionate, and illegal treatment according to national standards (Cass., VI, 3 March 2020, n. 9203). 11 Unless a different penal sanction has been inflicted in the final decision delivered in the requesting state or, if death penalty has been already inflicted, this has been modified afterword with a different type of sanction. According to the Court of Cassation, this provision must be widely interpreted so as to require that the requesting state has to explicitly exclude infliction of death penalty (Cass., VI, 11 June 2019, n. 39443). 12 Before the reform of 2017, Art. 703.2 c.p.p. provided only for the identification of the requested person by the General prosecutor. Questioning has been expressly allowed in order to guarantee the right of defence of the requested person, that shall be assisted by his/her defence lawyer. On this occasion, the requested person may give consent to extradition or renounce the speciality principle. See, more in detail, Marchetti (2019), p. 25. 13 Before the reform of 2017, the requested person was not allowed to renounce the speciality principle. The person could only give his/her consent to extradition. 14 This jurisdictional phase before the Court of Appeal shall be omitted when the requested person has given his/her consent to the General prosecutor. 15 According to Art. 702 c.p.p., the representative of the requesting state is allowed to participate in the internal procedure only if reciprocity is satisfied (in terms of ‘equivalent service’, according to Cass., VI, 3 February 2017, n. 14237). 16 The appointment of an interpreter has been provided for only with the reform of 2017.

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apply a precautionary measure upon the request of the Ministry of Justice (Art. 714 CPP). Within 45 days, the Ministry of Justice shall ultimately decide on the extradition request by taking the final decision (Art. 708.1 CPP). This means that even after a first positive check of the Ministry and a sentence of the Court of Appeal in favour of extradition, the same Ministry, in any case, may still decide not to extradite the requested person for any reason.17 If his/her final decision is favourable, the Ministry shall agree with the requesting state on the date and place of surrender (Art. 708.4 CPP). Against a sentence on extradition (either positive or negative) by the Court of Appeal, an appeal before the Court of Cassation is possible (on both merits18 and legitimacy) by the person concerned, his/her defence lawyer, the General Prosecutor and the representative of the requesting state (Art. 706 CPP). Outgoing Requests Extradition is requested by the Ministry of Justice either on his/her initiative (Art. 720.2 CPP) or upon request of the General Prosecutor (Art. 720.1 CPP), which, however, is not binding on the Ministry. The Ministry of Justice does not consent to forward an extradition request when it may impinge on sovereignty, public order or other essential interests of the state (Art. 720.3 CPP). This decision is widely discretional. No appeal is possible against a request for extradition.

5.1.2.1.2

Legal Assistance

Incoming Requests Once the Ministry of Justice receives a request for legal assistance, if he/she decides not to directly deny it (discretionally because of sovereignty, public order or other essential interests of the state, or when the requesting state does not offer adequate guarantees of immunity to the person summoned abroad to testify, or when the requesting state does not guarantee reciprocity; compulsorily when the requested measure is forbidden by law, when the measure is contrary to fundamental principles of the Italian legal order, or if there are reasons to believe that criminal proceedings will be negatively affected by considerations of race, religion, sex, nationality, language, political opinions or personal or social conditions and the defendant did not give his/her consent to the execution of the request) (Art. 723 CPP), within 30 days from its reception (Art. 723.1 CPP),19 he/she shall forward the request to the public prosecutor of the 17 The Ministry of Justice may eventually decide to refuse extradition even when consent to extradition has been given by the requested person. However, Marchetti (2019), p. 33, underlines that refusal should be based on issues concerning only sovereignty, public order or other essential interests of the state. 18 However, the Court of Cassation takes its decision only on the basis of the existent dossier (Cass., VI, 17 May 2018, n. 25264). 19 Art. 723 c.p.p. has been entirely substituted with the reform of 2017. The deadline of 30 days for the transmission of the request to the judicial authority is therefore a novelty. However, as far as the

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tribunal of the place where the requested measure needs to be carried out (Art. 724.1 CPP). If the requested measure needs to be carried out before a judge or by a judge, the public prosecutor shall submit his/her request to the competent judge of preliminary investigations (Art. 724.2 CPP). Otherwise, the Public Prosecutor shall execute with no delay the request by motivated decree (Art. 724.3 CPP).20 The execution does not require a second final decision of the Ministry of Justice as it does under the extradition scheme. Execution is given in compliance with the formalities and procedures indicated by the requesting state (lex fori) if they are compatible with the Italian legal order; representatives of the requesting state may be authorised to participate in the execution of the request (Art. 725 CPP). Against a decision to provide legal assistance, no remedy is allowed,21 including where the request concerns search, interrogation and telecommunication surveillance. All in all, these are investigative measures that cannot be appealed against even if they are carried out as part of national criminal proceedings. In domestic proceedings, only seizures can be appealed,22 once executed, by ‘re-examination’ (riesame) before the so-called re-examination Tribunal (Tribunale del riesame) by the person concerned. However, if a foreign authority requests seizure, this measure cannot be appealed via ‘re-examination’, which regards the merits of the measure.23 Any measure executed upon a request for legal assistance, seizure included, can be challenged by the person concerned only via ‘execution instance’ (incidente di esecuzione), according to the general rule under Art. 666 CPP, before the authority executing the measure; this remedy however deals only with violations affecting execution.24 No remedy is allowed against a decision not to provide legal assistance.

power of the Ministry of Justice in international cooperation procedures is concerned, no significant changes have been brought about. 20 Art. 724 c.p.p. has been entirely substituted with the reform of 2017, because of the swift of competence for legal assistance requests from the Court of Appeal to the Public prosecutor or the judge of preliminary investigations. 21 Cass., VI, 6 November 2014, n. 53435. 22 Because of their persisting invasive effects on property rights, likely to be protracted until the final sentence. However, a proposal to introduce a judicial control over searches have been put forward recently by the Italian legislator, following the ruling by the ECtHR, judgment of 27 September 2018, Application no. 57278/11 (Brazzi v. Italy), where the Strasbourg Court found a violation of Art. 8 ECHR because no judge had examined the lawfulness or necessity of the search in the applicant’s home carried out by the Italian tax authorities, neither before nor after the search. See Art. 11 of Disegno di legge recante deleghe al governo per l’efficienza del processo penale e disposizioni per la celere definizione dei procedimenti giudiziari pendenti presso le corti d’appello (CDM n. 29 – 13 February 2020). 23 Cass., III, 9 February 2011, n. 28063. 24 See, for instance, Cass., I, 14 November 2014, n. 51839. See also Calvanese (2019), pp. 68 f.

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Outgoing Requests Legal assistance is called for by the Ministry of Justice upon the request of a competent judicial authority, i.e. the Public Prosecutor or the judge, according to their respective competences (Art. 727.1 CPP).25 No formal legitimacy to ask to forward a request for legal assistance is recognised to defence lawyers.26 The Ministry of Justice does not consent to forward a legal assistance request (by issuing a decree to this end) when it may impinge on sovereignty, public order or other essential interests of the state (Art. 727.2 CPP). This is a widely discretional decision. Only if the Ministry of Justice does not forward the request within 30 days, or in urgent cases, can the judicial authority directly forward the request to the foreign competent authority via the Italian diplomatic or consular agent while informing the Ministry of Justice (Art. 727.4 CPP).27 No appeal is possible against a request for legal assistance. However, ordinary remedies are allowed against the measure requested (namely, ‘re-examination’— riesame—is permitted against a seizure requested to another state).28

5.1.2.1.3

Enforcement of Judgments

Incoming Requests Once the Ministry of Justice receives a request for the enforcement of a judgment issued abroad and believes that this must be enforced based on an international convention,29 he/she shall forward the request, together with a copy of the judgment (translated into Italian) and any other relevant document, to the General Prosecutor (Art. 731.1 CPP).30 Additional information deemed necessary

25 Art. 727 has been entirely substituted with the reform of 2017. It now refers generically to “judicial authority”, which includes both judges and Public prosecutors. Before 2017, Art. 727 c.p.p. was explicit about these two bodies. 26 The Court of Cassation has also excluded that defence lawyers can carry out defensive investigations abroad. Since they are public officials when they conduct investigations for their clients, defence lawyers cannot act as such outside Italy. 27 The request may still be blocked by the Ministry of Justice, but only before the same request is transmitted by the Italian diplomatic or consular agent to the foreign competent authority. Calvanese (2019), pp. 80 f. 28 Cass., sez. un., 16 April 2003, n. 21420. Calvanese (2019), pp. 93 ff. 29 The Ministry of Justice does not enjoy much discretion when enforcement of a judgment is requested by another state. Indeed, if international conventions or treaties of which Italy is party provide for an obligation to enforce a foreign judgment, the Ministry shall ask the competent judicial authority for its recognition (Art. 731 c.p.p.). Therefore, the Code of criminal procedure allows enforcement of foreign judgments in Italy only based on international agreements. 30 This is the case when Italy is requested to recognise and execute a foreign judgment. The Code of criminal procedure also provides for recognition of foreign judgments for purposes different from their execution in Italy (when recognition is required to ensure certain effects of foreign judgments to the extent these have repercussions under Italian penal law ex Art. 12 of the Penal code). See Art. 730 c.p.p., which though falls outside the scope of this report.

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may be requested via any channel that guarantees authenticity.31 The General Prosecutor initiates proceedings before the Court of Appeal by submitting a request (Art. 731.2 CPP). The Court of Appeal decides on the request by sentence within 90 days in a special hearing. This date must be notified at least 10 days in advance to the prosecutor, the interested parties and their defence counsel. No later than 5 days before the hearing, the parties can file ‘written pleadings’ (memorie) (Art. 734.1 CPP, which recalls the simplified procedure under Art. 127 CPP, according to which participation of the Public Prosecutor, the person concerned and his/her defence lawyer is optional). If the decision (to be taken by sentence within 90 days from the receipt of the request32) is favourable, the Court of Appeal shall also determine the penal sanction that needs to be executed in Italy (Art. 735 CPP).33 Execution of the foreign judgment is carried out according to Italian law (Art. 738 CPP). The Court’s decision is final, and a further granting decision of the Ministry is not required. Against a sentence on enforcement of a foreign judgment (either positive or negative), an appeal before the Court of Cassation is possible (only for breaches of the law) by the person concerned, the General Prosecutor and the defence lawyer; the decision by the Court of Cassation is due within 60 days (Art. 734.3 CPP).34 Outgoing Requests Enforcement of a judgment issued in Italy in another state may be requested by the Ministry of Justice either on his/her initiative or upon request of the competent Public Prosecutor (Art. 742.1 CPP).35 The Ministry of Justice does not forward such request when there are reasonable grounds to believe that the sentenced person will be persecuted or discriminated for his/her race, religion, sex, nationality, language, political opinions or personal or social conditions, or will be subjected to cruel, inhuman or degrading treatments (Art. 744 CPP). This is a widely discretional decision. Enforcement can only be requested if the sentenced person consents and enforcement abroad favours social integration36 (Art. 742.2 CPP) or if the convicted person is in the territory of the requested state and extradition to Italy was denied (Art. 742.3 CPP). If the judgment inflicts a custodial sentence, the request for its enforcement

31

This possibility has been added with the reform of 2017 in order to make the procedure speedier. Picciotti (2019), p. 107. 32 This deadline has been added with the reform of 2017. 33 This is a conversion of the foreign penal sanction into a penal sanction as provided for under Italian law. Specific criteria for such conversion are detailed under Art. 735 c.p.p. 34 Art. 734 c.p.p. has been entirely substituted with the reform of 2017. In its original version, defence lawyers were not recognised locus standi to file an appeal before the Court of Cassation and no deadline for the decision of the high Court was provided for. Picciotti (2019), p. 108. 35 The possibility for the Public prosecutor to put forward a request to the Ministry of Justice has been added in 2017 by the mentioned reform of Chapter XI of the Code of criminal procedure. 36 This specific condition does not apply if the case falls under the application of the Strasburg Convention on the Transfer of Sentenced Persons of 1983 (Cass., VI, 14 October 2014, n. 44089).

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can only be forwarded by the Ministry of Justice if there is a positive decision of the Court of Appeal. To this end, the Ministry of Justice shall transmit the relevant materials to the General Prosecutor, who shall initiate proceedings before the Court of Appeal (Art. 743.1 CPP). The sentence of the Court of Appeal on the request for enforcement (issued within 90 days from the receipt of the request, following the simplified procedure under Art. 127 CPP, according to which participation of the Public Prosecutor, the person concerned and his/her defence lawyer is optional37) is subject to appeal before the Court of Cassation for breaches of the law by the Public Prosecutor, the person concerned and his/her defence lawyer (Art. 743. 4 CPP).38 In conclusion, in ‘passive’ cooperation procedures, decisions on the request for any modality of cooperation are taken by political and judicial authorities. As to the competent political authority (the Ministry of Justice), ample discretion applies. As to the competent judicial authority, discretion is minimal since cooperation is granted or denied according to law, and judicial remedies are provided for (appeal before the Court of Cassation), with an exception for legal assistance, where the only remedy is the ‘execution instance’ (incidente di esecuzione) before the authority executing the measure. In any case, judicial review is only provided after a decision is taken. There is no way that judicial review is allowed ex ante before a decision is taken on whether to grant cooperation.

5.1.2.2

The Framework of Cooperation Within the EU

Differently, under EU judicial cooperation, the bodies involved are exclusively judicial authorities (the Public Prosecution, a judge or the Court of Appeal according to the case/modality of cooperation at issue). The Ministry of Justice has only the task of guaranteeing compliance with conditions imposed by the foreign executing authority or by the Italian issuing authority (Art. 696-sexies CPP). Indeed, jurisdictionalisation of cooperation procedures according to the EU principle of mutual recognition has been recently formalised under the Italian Code of Criminal Procedure, following the already mentioned reform of Chapter XI of the same Code entitled ‘Jurisdictional relations with foreign authorities’, carried out in 2017, by Legislative Decree n. 149. A brand-new Title (I-bis) has been added, providing for general principles on mutual recognition of judicial decisions in criminal matters between EU Member States.39 In particular, judicial cooperation procedures with EU Member States are regulated as follows.

37

This is so after the reform of 2017. Before the reform of 2017, defence lawyers were not recognised locus standi to file an appeal before the Court of Cassation. 39 On this aspect of the reform, see De Amicis (2019), pp. 239 ff. 38

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European Arrest Warrant

When Italy is the executing Member State, the Court of Appeal is competent to decide on the recognition of a European arrest warrant (EAW) issued by the authority of another Member State. The Court may receive the European arrest warrant by the Ministry of Justice or directly by the foreign issuing authority (Art. 9.1 of Law n. 69/2005 implementing Framework Decision 2002/584/JHA). The Court, first of all, decides by order whether to apply a precautionary measure after having heard the General Prosecutor. In case the Court decides to apply a precautionary measure, the requested person, assisted by a lawyer, shall be informed of the European arrest warrant and shall be heard by the president of the Court 5 days after at the latest (Art. 10.1 of Law n. 69/2005). The president of the Court shall hear the requested person after arrest by the police (Arts. 11–12 of Law n. 69/2005) in view of the validation procedure (Art. 13 of Law n. 69/2005). The Court decides by sentence whether to surrender the requested person, in a specific hearing, after having heard the General Prosecutor, the defence lawyer and, if present, the requested person, as well as the representative of the issuing Member State (Art. 17.1 of Law n. 69/2005). The sentence shall be delivered within 60 days from the execution of the precautionary measure if such a measure has been applied (Art. 17.2 of Law n. 69/2005).40 If the person requested gives his/her consent (Art. 14 of Law n. 69/2005), the Court shall decide by order, within 10 days, after having heard the General Prosecutor, the defence lawyer and, if present, the requested person (Art. 14.4 of Law n. 69/2005). Therefore, a decision by the Court of Appeal is always due, even if the requested person gives his/her consent. The Ministry of Justice is the central authority, with administrative tasks only (Art. 4 of Law n. 69/2005). Against a judicial decision on the execution of a European arrest warrant, an appeal before the Court of Cassation is possible (on both merits and legitimacy)41 by the person concerned, his/her defence lawyer and the General Prosecutor (Art. 22.1 of Law n. 69/2005).42 When Italy is the issuing Member State, the European arrest warrant can be issued either by the judge who ordered the precautionary custodial measure (upon the request of the Public Prosecutor) or by the Public Prosecutor competent for the execution of the final judgment (Art. 28.1 of Law n. 69/2005). The Ministry of Justice is the central authority, with administrative tasks only (Art. 4 of Law n. 69/2005).

40 It is not clear what the dies a quo of the deadline of 60 days for the delivery of the sentence is, where precautionary measure has not been applied. 41 Ceresa-Gastaldo (2005), pp. 331 ff. 42 Appeal is not allowed against the decision to temporary transfer the requested person, since this decision implies a final positive sentence on the surrender, the only one which can be appealed (Cass., VI, 28 March 2019, n. 14425).

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The issuing of the European arrest warrant should not be discretional: it should be due when the person against whom a precautionary custodial measure or a final judgment has been issued43 resides, is established or lives in another Member State (Art. 29 of Law n. 69/2005).44 No appeal is possible against a European arrest warrant.45

5.1.2.2.2

European Investigation Order

When Italy is the executing Member State, the Public Prosecutor of the tribunal where the requested measure needs to be carried out is competent to recognise a European investigation order (EIO) by decree within 30 days (Art. 4.1 of Legislative Decree n. 108/2017 implementing Directive 2014/41/EU).46 Execution is given within the next 90 days (Art. 4.2 of Legislative Decree n. 108/2017). If the issuing authority asks the requested measure to be carried out by a judge or if the requested measure needs to be carried out by a judge according to Italian law, the Public Prosecutor first recognises the European investigation order and then asks the judge of preliminary investigations for its execution (Art. 5.1 of Legislative Decree n. 108/2017). This same rule is provided explicitly for the interception of telecommunications, which under national law always needs to be authorised by the judge of preliminary investigations. In this specific case, the judge shall not grant the execution of a European investigation order if the interception would not be authorised under national law (Arts. 23.2 and 23.3 of Legislative Decree n. 108/ 2017). In any case, the judge of preliminary investigations decides on the request for execution by order in a special hearing (Art. 5.3 of Legislative Decree n. 108/2017). Against the decree of recognition of the European investigation order by the Public Prosecutor, the person under investigation and his/her defence lawyer can lodge an opposition before the judge of preliminary investigations within 5 days after due communication of the recognition decree47 (Art. 13.1 of Legislative Decree n. 108/2017). The judge of preliminary investigation decides on the opposition after having heard the Public Prosecutor (Art. 13.2 of Legislative Decree n. 108/2017). When the European investigation order concerns a seizure, opposition against the decree of recognition by the Public Prosecutor is also allowed in favour of both the

43

To the extent that inflicted detention is no less than 1 year and cannot be suspended. To this regard, see Cass., VI, 9 May 2012, n. 21470, where the Court of Cassation found admissible the appeal by the Public prosecutor against the refusal to issue a European arrest warrant by the judge of preliminary investigations, in consideration of the fact that conditions on which a precautionary custodial measure is founded (and which justifies the issuing of a European arrest warrant) cannot be re-assessed by the judge competent to issue the European arrest warrant. 45 Cass., sez. un., 21 June 2012, n. 30769. 46 Competence of the Public prosecutor in ‘passive’ procedures recalls the competence conferred to the same authority by the Code of Criminal Procedure after the reform of 2017 under legal assistance at international level. See, critically, Rafaraci (2019), pp. 295 ff. 47 Cass., VI, 7 February 2019, n. 14413. 44

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person who suffered the consequences of the seizure and the person to whom what has been seized shall be returned (Art. 13.7 of Legislative Decree n. 108/2017).48 Only in this case can the decision on the opposition be appealed within 10 days before the Court of Cassation (for breaches of the law) by the Public Prosecutor and the persons concerned (Art. 13.7 of Legislative Decree n. 108/2017). Therefore, against seizure per se the ordinary remedy of ‘re-examination’ (riesame) is not allowed.49 However, according to the Court of Cassation, opposition under Art. 13 of Legislative Decree n. 108/2017 should also be allowed against the internal decree of seizure issued in the execution of a European investigation order.50 This extends the scope of the opposition, which is, in principle, only admissible against the recognition decree and not also against the recognised measure.51 No remedy is provided for against the decision by the judge of preliminary investigations on the request for execution when the measure needs to be carried out by a judge according to Italian law or upon explicit request of the issuing authority. When Italy is the issuing Member State, the European investigation order can be issued by a judge (after having heard the parties52) or a Public Prosecutor according to their respective competences (Art. 27.1 of Legislative Decree n. 108/ 2017).53 The European investigation order may also be issued upon the request of the defence lawyer (Art. 31 of Legislative Decree n. 108/2017). However, the decision whether to issue a European investigation order rests with the competent judicial authority. The issuing of the European investigation order is discretional since it is for the competent authority to assess the need to request or not specific investigative measures/evidence. No appeal is possible against a European investigation order. However, if the European investigation order concerns a seizure, it can be appealed by ‘re-examination’ (riesame) before the ‘re-examination Tribunal’ (Tribunale del riesame) by the person under investigation, his/her defence lawyer, the person who suffered the consequences of the seizure and the person to whom what has been seized shall be returned according to the ordinary remedy allowed for seizures under national law (Art. 28 of Legislative Decree n. 108/2017).

48

However, communication/notification of the recognition decree is not due to these persons. See, critically, Lorenzetto (2019), pp. 352 and 358 f. 49 For this conclusion see Cass., VI, 14 February 2019, n. 11491. In different terms see Cass., VI, 31 January 2019, n. 8320, where the Court of Cassation affirmed that ‘re-examination’ (riesame) against the seizure executed following a European investigation order should be allowed. 50 Cass., III, 11 October 2018, n. 5940. 51 Rafaraci (2019), pp. 308 ff. 52 Lorenzetto (2019), pp. 365 f. and Marcolini (2019), pp. 319 f. 53 The police is not given competence to issue a European investigation order. Marcolini (2019), p. 317.

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Enforcement of Judgments in the EU

When Italy is the executing Member State, the Court of Appeal is competent to decide on the recognition and execution of a foreign judgment (Art. 9 of Legislative Decree n. 161/2010 implementing Framework Decision 2008/909/JHA). The Court of Appeal decides by sentence within 60 days in a special hearing, in which the General Prosecutor, the sentenced person and his/her defence lawyer shall participate and shall be heard (Arts. 12.5 and 12.6 of Legislative Decree n. 161/2010). If the sentence is in favour of recognition, execution is carried out by the General Prosecutor (Art. 12.8 of Legislative Decree n. 161/2010) according to Italian law (Art. 16 of Legislative Decree n. 161/2010). Against the sentence on recognition and execution of a foreign judgment, an appeal before the Court of Cassation is possible (on both merits and legitimacy) by the sentenced person, his/her defence lawyer and the General Prosecutor (Art. 12.10 of Legislative Decree n. 161/2010). When Italy is the issuing Member State, the authority competent to forward a judgment is the Public Prosecutor responsible for the execution of the same judgment (Art. 4 of Legislative Decree n. 161/2010), even upon the request of the sentenced person or the executing Member State (Art. 6 of Legislative Decree n. 161/2010). The decision of whether to forward a judgment is not discretional. In line with FD 2008/909/JHA, a judgment is forwarded (a) to the Member State of nationality of the sentenced person in which he/she lives; (b) to the Member State of nationality, to which, while not being the Member State where he/she lives, the sentenced person will be deported once he/she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; (c) to the Member State which consents to the forwarding of the judgment (Art. 5.3 of Legislative Decree n. 161/2010). No appeal is provided against the decision to forward a judgment. In conclusion, in any case of ‘passive’ EU cooperation procedures, the margin of discretion whether or not to grant cooperation is minimal since the decision on the request (of any kind) is taken exclusively by judicial authorities according to national laws, which in turn have implemented most of the grounds for refusal as mandatory.54 Judicial review is only provided after a decision is taken. There is no way that judicial review is allowed ex ante before a decision is taken on whether to grant cooperation.

54

Under Arts. 9.3 and 10 of Legislative Decree n. 108/2017 (EIO) and Art. 13 of Legislative Decree n. 161/2010 (enforcement of judgments), grounds for refusal are all mandatory. As for the EAW, while Art. 18 of the Law n. 69/2005 (EAW) provides for mandatory grounds for refusal, the recently added Art. 18-bis (added by Law n. 117/2019) now provides for three different optional grounds for refusal: in case of lis pendens in Italy on the same facts against the requested person; in case Italian jurisdiction applies according to territoriality; in case the requested person is an Italian citizen or a person residing in Italy. See Spagnolo (2019), pp. 270 ff.

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Subject Matter of Judicial Control

5.2.1

International and Internal Dimensions of the Granting Decision

Under international judicial cooperation, the two different issues concerning international and internal dimensions that need to be examined when deciding on a request for cooperation are dealt with separately by various bodies. The international dimension is dealt with by the Ministry of Justice and is preliminary to judicial decision. The internal dimension is dealt with by judicial authorities and partly by the Ministry of Justice. In case of requests for legal assistance or enforcement of judgments, a judicial decision is also the final decision after the Ministry has decided to give due course to the request. In case of extradition requests, judicial decision is followed by another final check of the Ministry of Justice, who has the ‘last word’ on the request (Art. 708 CPP). Differently, under EU judicial cooperation, there are no two different issues (concerning international and internal dimension) dealt with separately by different bodies. Decisions on ‘requests’ of cooperation are dealt with by judicial authorities only, according to the relevant legal instruments. No space is left for the Ministry of Justice (which acts only as a central body, according to Art. 696-quater CPP, and monitors whether special conditions imposed by the foreign authority as executing authority or by the Italian authority as issuing authority are respected, according to Art. 696-sexies CPP). Joint or separate judicial control is not an issue.

5.2.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

5.2.2.1

The General Framework of International Cooperation in Criminal Matters: Italy as the Requested State

Under international judicial cooperation, when Italy is the requested state, judicial control is only permitted on the decision taken by the competent judicial authority. The question concerning the international aspect, dealt with by the Ministry of Justice, is not subject to proper judicial control since it is considered to affect super-individual interests (mainly national sovereignty, public order and other national interests of the state), which cannot be challenged by individuals. However, the Ministry of Justice’s decision is not subject to judicial control even when it deals with discrimination issues or inhuman or degrading treatments, which actually do not belong to the international dimension but definitely affect individuals. The only judicial review on the decision taken by the Ministry of Justice—which is an

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administrative act—is possible via a recourse before the administrative judge to denounce lack of competence, breach of the law or excess of power (issues that do not pertain to the merits of the decision).55 In any case, in line with Art. 113 Cost., judicial protection of rights and legitimate interests is guaranteed against acts of the public administration. Judicial control on the internal dimension issue is strictly linked to what the judicial authorities can examine, as expressly provided for by the Code of Criminal Procedure (for each type of request for cooperation). There is not a distinction between arguments based on formal requirements and arguments based on substantive law. Regulation under the Italian Code of Criminal Procedure is as follows. As far as extradition is concerned (Art. 705 CPP), when there is no convention/ treaty, or this does not provide for in a different way, the judicial authority shall check if: • The request is supported by severe elements of suspicion.56 • Or a final sentence supports the request. • And ne bis in idem does not apply, or there are no ongoing proceedings for the same facts against the same person in Italy.57 In any case, the judicial authority shall check if: • Proceedings in the requesting state for the crime for which extradition has been requested are contrary to fundamental rights. • The content of the sentence on which the request is founded is contrary to fundamental principles of the Italian legal order. • There are grounds to believe that the requested person will be subject to persecution or discrimination for his/her race, religion, sex, nationality, language, political opinions or personal or social conditions, or will be subject to cruel,

55

See Art. 708.5 c.p.p., which provides for the suspension of the maximum period of 15 days for the material surrender of the requested person when the competent administrative judge suspends the decision taken by the Ministry of Justice. See also Art. 714.4-bis c.p.p., which provides for the suspension, up to 6 months, of the maximum period of 3 months for the duration of a precautionary measure against the requested person, pending appeal before the administrative judge on the decision of the Ministry of Justice. 56 According to established case-law, the Court of Appeal should make only an extrinsic/formal assessment when a treaty or a convention applies (see, for example, Cass., VI, 7 January 2009, n. 1122; Cass., VI, 10 October 2008, n. 40283). However, in the last few years, perhaps following the adoption of the EAW (where the elements of suspicion should be assessed by the requested Italian authority), the Court of Cassation seems to have adopted a stricter interpretation of this requirement (see, for example, Cass., VI, 25 September 2019, n. 40552, according to which the Court of Appeal has to examine the probability that the suspect is the author of the alleged crime. See also: Cass., VI, 21 February 2019, n. 8063; Cass., VI, 17 July 2014, n. 43170; Cass., VI, 28 May 2013, n. 26290). Marchetti (2019), p. 27. 57 There must have been a formal charge. Mere investigation does not constitute on-going proceedings for the purpose of refusing extradition (Cass., VI, 12 September 2018, n. 48097).

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inhuman or degrading treatments or any other acts in violation of fundamental rights. • Health or age reasons may put at risk the requested person. See also: • Art. 13.2 of the Criminal Code, which provides that extradition shall not be allowed if the fact for which extradition is requested does not constitute a crime under both Italian law and foreign law;58 therefore, double criminality applies even if not recalled by the Code of Criminal Procedure. • Art. 13.4 of the Criminal Code, which does not allow the extradition of Italian citizens; however, according to Art. 26 Cost., the extradition of Italian citizens may be granted if expressly provided for under international conventions, whereas it shall never be permitted for political crimes. As far as legal assistance is concerned (Art. 724.7 CPP), the judicial authority shall check if: • Requested investigation measures or evidence are contrary to law or fundamental principles of the Italian legal order. • Double criminality is satisfied unless the person concerned gave his/her consent to the request for legal assistance. • There are grounds to believe that proceedings will be affected by considerations of race, religion, sex, nationality, language, political opinions or personal or social conditions unless the person concerned gave his/her consent to the request for legal assistance. As far as enforcement of judgments is concerned (Art. 733 CPP), the judicial authority shall refuse enforcement if: • The judgment is not final in the state where it has been issued. • The content of the judgment is contrary to fundamental principles of the Italian legal order,59 or the conditions imposed by the requested state are contrary to such principles. • An independent and impartial judge did not deliver the judgment, or the sentenced person was not summoned or was not given a chance to be heard in a language comprehensible to him/her and to be assisted by a defence lawyer. • There are grounds to believe that proceedings were affected by considerations of race, religion, sex, nationality, language, political opinions or personal or social conditions. • Double criminality is not satisfied. • Ne bis in idem applies.

58

To this end, different legal qualifications and different penal sanctions are not relevant (Cass., VI, 7 May 2019, n. 26718). 59 For instance, when the sentence is the result of proceedings where cross examination has not been guaranteed (Cass., VI, 5 February 2019, n. 16877).

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• There are ongoing proceedings for the same facts against the same person in Italy. Thus, the merits of the foreign request cannot be examined incidentally before the national judicial authority. The reason lies in sovereignty issues. Such an examination by Italian authorities may be considered as violating the boundaries of national jurisdiction. The only exception concerns extradition when it is requested outside the framework of a convention/treaty. In this case, Italian authorities shall check if severe suspicion elements support the request. It is impossible to lodge a remedy against a foreign request with an Italian judicial authority that triggers judicial review in the requesting state. Legal remedies are provided for only against the decision on whether or not to execute a request and, in certain cases, once cooperation is granted, on its material execution. The grounds of the request and its merits can only be reviewed before the competent authority in the requesting state.

5.2.2.2

The General Framework of International Cooperation in Criminal Matters: Italy as Requesting State

When Italy is the requesting state, requests to foreign authorities are not subject to judicial review. Only in case of a request for enforcement of an Italian judgment abroad, if the judgment imposes a custodial sentence, is a decision of the Court of Appeal needed before the Ministry of Justice forwards the request to another state. This decision (taken by sentence) is subject to appeal before the Court of Cassation (for breaches of the law) by the Public Prosecutor, the person concerned and his/her defence lawyer (Art. 743.4 CPP). In legal assistance, arguments on the legitimacy of evidence and their use can be raised in the trial phase. The interested party may raise a point that the request by the Italian authority was unlawful or that the decision in the requested state was illegal (in this last case, it could be useful to prove that a remedy was successful against the decision in the requested state). Article 729 CPP provides for specific rules on the use of materials requested to another state and there gathered: these materials can only be used in compliance with the conditions imposed by the requested state if this is the case; these materials cannot be used in the trial if they have been gathered according to procedures which are different from those expressly indicated by Italian authorities and the violation of which results in an exclusionary rule; oral evidence concerning the content of materials which cannot be used because of the mentioned reasons cannot be used. The competent tribunal decides on the issue concerning the use of evidence in the final sentence. The use of ‘illegal evidence’ (i.e. resulting from unlawful requests for legal assistance or illegal decisions on execution or considered as such according to Art. 729 CPP) may also be challenged via appeal against the sentence of the tribunal of first instance (it may constitute a ground for appeal). Also,

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an appeal before the Court of Cassation against the sentence of the Court of Appeal is allowed.

5.2.2.3

The Framework of Cooperation Within the EU: Italy as Executing Member State

Under EU judicial cooperation, when Italy is the executing Member State, according to the recently introduced Art. 696-quinquies CPP, the Italian judicial authority recognises judicial decisions taken in other Member States without examining their merits, save when it is otherwise provided for. Nonetheless, it shall always be ensured the respect for the fundamental principles of the Italian legal order. It is worth mentioning that under Art. 17.4 of Law n. 69/2005, a European arrest warrant can be given execution by the Court of Appeal only when, in the absence of any ground for refusal, there are serious elements of suspicion or a final sentence was delivered. Therefore, Italian judicial authorities shall assess the seriousness of the elements of suspicion on which a European arrest warrant issued abroad is founded, this implying an examination of the merits of the request. However, this stringent condition, which reproduces the one required under international judicial cooperation in the absence of an applicable treaty/convention, has been softened by the interpretation offered by a certain case law of the Court of Cassation, which requires only a check on the due assessment made by the issuing authority according to the elements gathered during investigations.60 Under Art. 696-novies CPP, (a) decisions on recognition and execution of decisions taken by the authority of another Member State are subject to an appeal according to law (reference is to national laws implementing EU pieces of legislation); (b) appeal before the Court of Cassation for breaches of law is always allowed against sentences and measures involving deprivation of liberty (in line with the constitutional provision under Art. 111.7 Cost.); (c) it is not possible to appeal the merits of foreign decisions, save when it is otherwise provided for; (d) appeal does not suspend execution, save when it is otherwise provided for.

60 It is sufficient that evidence on the alleged responsibility of the requested person is adequate to found the assessment on the seriousness of the elements of suspicion, which anyway pertains to the issuing authority (Cass., VI, 3 October 2017, n. 45640; Cass., VI, 6 November 2013, n. 44911; Cass., sez. fer., 24 August 2010, n. 32381; Cass., VI, 17 September 2008, n. 35832; Cass., VI, 16 April 2008, n. 16362; Cass., sez. un., 30 January 2007, n. 4614). Italian judicial authorities must check only if the elements against the requested person are complete and suggestive of a crime committed by the requested person (Cass., sez. fer., 31 August 2017, n. 39864). However, the crime must be ascribable to the person concerned by the EAW (Cass., sez. fer., 30 July 2019, n. 35186) with a high probability, according to the elements gathered during investigations and considered by the issuing authority as serious elements of suspicion (Cass., VI, 6 June 2017, n. 2881).

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The Framework of Cooperation Within the EU: Italy as Issuing Member State

When Italy is the issuing Member State, the same rule as under international judicial cooperation applies: requests in the form of European arrest warrants or European investigation orders and requests for enforcement of judgments, issued by Italian judicial authorities, are not subject to judicial control. Evidence wise, too, what is said for international cooperation applies to EU cooperation. Unlawful European investigation orders or illegal evidence may be challenged in the trial or, after the sentence, via appeal either before the Court of Appeal or before the Court of Cassation.

5.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

Under international judicial cooperation, the decision not to initiate a request for legal assistance is not subject to judicial review if this is taken in the investigation stage. Thus, if during investigations a suspect or his/her defence lawyer asks the Public Prosecutor or the judge of preliminary investigations to initiate a request and the request is not initiated, no remedy is provided. Judicial authorities have not even the obligation to make a formal decision on such a request by the defence. However, if a request for taking evidence abroad is put forward in the trial and is not given due course, the interested party may appeal against the sentence of the first instance for a violation of his/her right to evidence (Art. 190 CPP) (also appeal before the Court of Cassation against the sentence of the Court of Appeal is possible). The same applies, under EU judicial cooperation, concerning the decision not to initiate a ‘request’ (namely a European investigation order). However, when the defence asks the Public Prosecutor or the judge to issue a European investigation order, the requested authority shall decide either by decree (the Public Prosecutor) or by order (the judge, who shall hear the interested parties beforehand), explaining the reason why it decided not to issue the European investigation order, if this is the case (Art. 31 of Legislative Decree n. 108/2017). That approach opens the possibility to challenge this decision for unfounded reasoning and therefore a violation of the right to defence by an appeal of the sentence of first instance.61

61 Lorenzetto (2019), p. 373. On this point, see Cass., II, 29 October 2019, n. 49506, where the Court of Cassation found illegitimate the decision of the judge that refused the issuing of a European investigation order upon request of the defence on the grounds that the gathering of evidence abroad was impossible while it was not.

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Concentration of Judicial Review (SIS II)

As far as the concentration of legal remedies as provided under the Schengen Information System (SIS) is concerned, regulation under the Italian relevant legislation is as follows. In line with Art. 68 of Regulation 2018/1862/EU on the Schengen Information System (SIS)—which reproduces the same remedies as under Art. 59 of Council Decision 2007/533/JHA—Art. 39 of Legislative Decree n. 51/2018 implementing Directive 2016/680/EU (on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA) provides that the person concerned can first complain to the Data Protection Supervisor (Garante per la protezione dei dati personali, competent for the supervision of the national data systems, which communicate with Central SIS, i.e. the N.SIS) for a violation in the processing of his/her data. The supervisor shall notify the person concerned about the result of the complaint with information on the possibility of a jurisdictional remedy. According to Art. 152 of Legislative Decree n. 196/2003 (the so-called Code on Data Protection, recalled by the above-mentioned Art. 39 of Legislative Decree n. 51/2018), this last remedy is regulated by Art. 10 of Legislative Decree n. 150/2011. It consists of an appeal before a judge (according to the procedures applicable in proceedings concerning the labour law sector) that has a suspensory effect, is not subject to further appeals and may also address possible requests for damages. In the Italian legal system, there are no rules on the concentration of legal remedies in other areas.

5.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

Under international judicial cooperation, when foreign authorities have the right to undertake specific investigative measures on national territory, the Italian legal system does not provide for judicial review. All in all, judicial review is not possible against any investigative measure even if undertaken by national authorities, except seizure. Seizure, in turn, cannot be carried out in Italy by foreign authorities. National law does not refer the complainant to the other state’s authority. In the different cases of hot pursuits, if a person is finally arrested, the remedies under national law shall apply. In the framework of EU judicial cooperation, foreign authorities may undertake investigative measures on national territory under the European investigation order Directive or the FD 2002/465/JHA on Joint Investigation Teams (JITs). However, they operate together with the competent Italian authorities, under their

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supervision. Therefore, any measure undertaken by foreign authorities is considered as carried out by national authorities (see, for example, Art. 5 of Legislative Decree n. 34/2016 implementing FD 2002/465/JHA on JITs: seconded officials from another Member State operating in Italy shall be regarded as Italian officials and shall exercise the function of judiciary police in investigation activities). In any case, as already pointed out in relation to international judicial cooperation, the Italian legal system does not provide for judicial review against any investigative measure but seizure (only this last one may give rise to ‘re-examination’—riesame— according to national law). National law does not refer the complainant to the other state’s authority.

5.3 5.3.1

Scope of Judicial Protection and Applicable Legal Standards Judicial Protection and Applicable Standards in the Requested State

Under international judicial cooperation, when deciding upon a foreign request (of any type), the competent Italian authority applies international treaties and conventions, including the ECHR, as well as general international laws. Indeed, Art. 696.2 CPP—as amended in 2017—expressly provides that in any international judicial cooperation procedure, conventions/treaties as well as general international laws shall have supremacy. However, Art. 696.3 CPP provides that in so far as treaties/conventions and general international laws are lacking or do not provide for otherwise, the Italian Code of Criminal Procedure shall apply. Of course, this also implies the application of rules and principles deriving from the Constitution (mainly the legality principle enshrined by double criminality, reserve of jurisdiction when personal liberty is at issue, as well as the broad range of principles ascribable to fair trial). In any case, according to Art. 696.4 CPP—as added in 2017—if the requesting state does not guarantee reciprocity, the Ministry of Justice may refuse cooperation. As far as the ECHR is concerned, it is worth mentioning that, following two seminal rulings of the Constitutional Court delivered in 2007,62 the ECHR has been given a precise ‘position’ in the hierarchy of Italian norms: it is inferior to constitutional provisions but is superior to ordinary laws. This implies that ECHR plays a double role at the national level. On the one hand, it is an additional parameter to check if a domestic law complies with the Constitution. On the other hand, it binds ECHR compatible interpretation of domestic laws. This conclusion stems from Art. 117.1 Cost., which rules on the relationship between the internal legal order, the EU legal order and international obligations (including obligations undertaken with the ECHR). 62

Corte cost., 22 October 2007, nn. 348 and 349.

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Legal standards in judicial cooperation are the same as those relevant in domestic cases: in any judicial cooperation procedure, the respect for the fundamental principles of the Italian legal order is due. For example, if an investigative measure/ evidence requested by a foreign authority is not applicable/allowed under national law, its execution will be refused in Italy. The same legal standards as under national law apply even when the competent Italian authority takes into account the law of the requesting state, i.e. when it examines whether there are serious grounds to believe that the person requested (in extradition cases) or the proceedings (in legal assistance cases and enforcement of foreign judgments) may be or may have been affected by considerations of race, religion, sex, nationality, language, political opinions or personal or social conditions. The competent Italian authority considers the law of the requesting state when it examines whether the requested person (in extradition cases) is under proceedings for political criminal offences or will face the death penalty. Under EU judicial cooperation, when deciding upon a foreign ‘request’ (of any type) issued by the authority of an EU Member State, the competent Italian authority applies EU law, i.e. the Treaty of the European Union (which refers to the ECHR63), the Treaty on the Functioning of the European Union and any other act adopted to implement them. Indeed, Art. 696.1 CPP—after the 2017 reform—provides for the supremacy of EU law (within the meaning just clarified). This same article further provides that if EU law is lacking, international treaties/conventions and general international laws shall apply. The Italian Code of Criminal Procedure is applicable in so far as EU law as well as international treaties/conventions and general international laws are lacking or do not provide for otherwise (Art. 696.3 CPP). Discrimination issues, political criminal offences or possible humanitarian violations that give relevance to the applicable law in the issuing Member State are marginal under relevant EU law.64 However, under the European investigation order procedures, in line with Directive 2014/41/EU, Art. 7 of Legislative Decree n. 108/ 2017 provides that the Italian authority receiving a European investigation order may consider the same European investigation order disproportionate in relation to the investigative or evidence requirements in the specific case, by taking into account the seriousness of the crime at issue and the penalty provided for such crime. This opens up to the possibility of giving a certain relevance to the applicable law in the issuing Member State when deciding upon the recognition of a European investigation order.

63 Compliance with ECHR is also formally required under Art. 2.1(a) of Law n. 69/2005 on the EAW. 64 See: Cass., II, 24 January 2017, n. 3679; Cass., VI, 11 July 2017, n. 34439.

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Judicial Protection and Applicable Standards in the Requesting State

Under international judicial cooperation, requests are put forward by Italian authorities according to international treaties/conventions (including the ECHR) and general international laws. In so far as treaties/conventions and general international laws are lacking or do not provide for otherwise, the Italian Code of Criminal Procedure shall apply (Art. 696.2-3 CPP). Legal standards linked to the law of the requested state may apply in case of request for enforcement of a judgment issued in Italy. Indeed, Art. 742.2 CPP conditions such request on the compatibility of the execution of the sentence in the requested state with resocialisation of the sentenced person. This means that a request can be put forward only after an assessment on the system of the requested state has been carried out. As far as standards for judicial review are concerned, particular attention must be drawn to requests for legal assistance for evidence purposes, which (even if not subject to judicial control) may be ‘challenged’ in Italy acting as the requesting state in order to object to the fact that evidence resulting from these requests are used in the trial, in consideration of: – The law of the requesting state (Italian law), when the measure requested would not be allowed under national law (legality) or when a procedural requirement has not been complied with (competence, notifications, deadlines, etc.) – The law of the requested state (foreign law), when discrimination issues may have affected the execution of the measure requested or the violation of fundamental principles, such as the right to defence and the right to a fair trial, has occurred65 – International law, mainly the ECHR (to invoke respect for the right to crossexamination, the right to defence, the right to a fair trial, etc.). Under EU judicial cooperation, European arrest warrants, European investigation orders and enforcement requests are put forward by Italian authorities according to EU law, i.e.—as already mentioned—the Treaty of the European Union (including the ECHR), the Treaty on the Functioning of the European Union and any other act adopted to implement them (Art. 696.1 CPP). If EU law is lacking, international treaties/conventions and general international laws shall apply. The Italian Code of Criminal Procedure is applicable in so far as EU law as well as international treaties/ 65

However, the Court of Cassation tends to narrow the scope of the right to defence when considering alleged violations of testimony gathered abroad: as long as the testimony is given in compliance with the procedural rules of the requested state and those rules do not infringe laws on public order and public morality, it shall be used in the trial (Cass., III, 16 December 2014, n. 17379, where the testimony was given without the participation of the defence lawyer of the accused; Cass., III, 19 July 2012, n. 47878). Also, interrogation of the accused abroad, following a request of legal assistance by Italian judicial authorities, can be used in domestic criminal proceedings even if the accused was not previously warned of his/her right to silence, recognised by the Code of Criminal Procedure (Cass., VI, 24 April 2012, n. 43534). Piacente (2018), pp. 41 f.

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conventions and general international laws are lacking or do not provide for otherwise (Art. 696.3 CPP). Evidence wise, the same rule as under international judicial cooperation may apply.

5.4

Pleading Requirements

Under international judicial cooperation, as far as extradition is concerned, everyone who is entitled to participate in the hearing before the Court of Appeal (competent to decide on the request for extradition) can invoke a ground for refusal. Those entitled to participate are the General Prosecutor, the requested person, his/her defence lawyer and the representative of the requesting state (Art. 704.1 CPP). Of course, most of the time, the only party having interest to invoke a ground for refusal is the requested person and his/her defence lawyer. The burden of proof lies with the party objecting to the request. Under EU judicial cooperation, these same rules apply to the European arrest warrant scheme (see Art. 17.1 of Law n. 69/2005). Under international judicial cooperation, as far as legal assistance is concerned, there is no room for invoking grounds for refusal before a decision is taken on the request for legal assistance. There is not a hearing where the interested parties may object to the request. The decision is made inaudita altera parte either by the Public Prosecutor or by the judge of preliminary investigations when the requested measure needs to be carried out by a judge or before a judge, according to national law (Art. 724 CPP). Under EU judicial cooperation, according to the European investigation order legislation, grounds for refusal may be invoked by the interested parties only when, after the Public Prosecutor has decided recognition, execution of the European investigation order needs to be authorised by the judge of preliminary investigations because the requested measure must be carried out by the judge (Arts. 5 and 13.5 of Legislative Decree n. 108/2017). Indeed, only in this case, there is a special hearing in which the interested parties may participate. The burden of proof lies with the party invoking the ground for refusal. Under international judicial cooperation, as far as enforcement of judgments is concerned, any interested party can invoke a ground for refusal by a ‘written pleading’ (memorie) to be filed before the Court of Appeal takes the decision by sentence (Art. 734.2 CPP). The burden of proof lies with the party objecting to the request. Under EU judicial cooperation, according to the relevant implementing legislation, the Court of Appeal can decide on a request for the enforcement of a foreign judgment only after having heard the General Prosecutor, the sentenced person and his/her defence lawyer (Art. 12.5 of Legislative Decree n. 161/2010). Therefore, all these parties can invoke a ground for refusal by providing the Court with the relevant elements on which refusal should be grounded.

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In any case, what needs to be argued is the existence of at least one of the grounds for refusal expressly listed in the relevant piece of legislation. As many details as possible need to be provided to ‘convince’ the competent authority to refuse the request. There are no differences between arguments based on the law of the requesting/issuing state, the law of the requested/executing state, international law and EU law, as far as they are pertinent to the invoked ground for refusal.

5.5

Guarantees Given by the Requesting State (Zusicherung)

5.5.1

Legal Nature, Requirements and Effects

5.5.1.1

The General Framework of International Cooperation in Criminal Matters

Under international judicial cooperation, guarantees given by the requesting state conditioning extradition, legal assistance or enforcement of foreign judgments shall be taken into consideration at the political level by the Italian Ministry of Justice when deciding on a request for cooperation. He/she may grant judicial cooperation based on such guarantees, but there is no obligation to accept them, the decision by the Ministry of Justice being highly discretional. Once accepted, the Ministry of Justice should monitor the case in order to do something if the guarantees are not respected in the requesting state. However, this is dealt with at the political level only. More on the subject, what the Code of Criminal Procedure expressly provides for are the following conditions. As for extradition, when Italy is the requesting state, Art. 720.4 CPP provides that the Ministry of Justice is competent to decide whether to accept conditions imposed by the requested state. These conditions can never be contrary to the fundamental principles of the Italian legal order and shall be complied with by the Italian judicial authority. As for legal assistance, when Italy is the requesting state, Art. 729.1 CPP provides that when the requested state has imposed conditions on the use of evidence transferred following a request by Italy, the Italian judicial authority shall comply with such conditions (for example, use may be limited to certain criminal proceedings, certain crimes or certain defendants). Similarly, in case of materials or information spontaneously transmitted by a foreign authority, the Italian authority shall comply with conditions imposed on the possible use of such materials or information by the said foreign authority (Art. 729-bis CPP). As for enforcement of judgments, when Italy is the requested state, Art. 734-bis CPP provides that the Ministry of Justice shall ensure respect for the conditions

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imposed by the requesting state for the execution of the sentence in Italy unless they are contrary to the fundamental principles of the Italian legal order. When Italy is the requesting state, the Ministry of Justice shall monitor the observance of the conditions imposed on the requested state (Art. 742-bis CPP).66

5.5.1.2

The Framework of Cooperation Within the EU

As far as EU judicial cooperation is concerned, the Italian Code of Criminal Procedure provides for a general provision on conditions under Art. 696-sexies CPP. On the one hand, the Ministry of Justice shall guarantee the observance of conditions imposed by the foreign executing judicial authority on Italy, unless these conditions are contrary to the fundamental principles of the Italian legal order. On the other hand, the Ministry of Justice shall monitor the observance of the conditions imposed by the Italian issuing judicial authority on the executing Member State. Of all the pieces of legislation implementing EU law, only the law implementing the European arrest warrant (Law n. 69/2005), under Arts. 2.2 and 19, deals with guarantees. When Italy is the executing Member State, the Italian authority may ask the issuing Member State for special guarantees in order to ensure respect for the ECHR and constitutional standards (Art. 2.2). Special guarantees may also be requested according to what is provided in the European arrest warrant Framework Decision in cases of a life sentence, in absentia proceedings (in line with Framework Decision 2009/299/GAI), and the surrender of a national or a resident. In any case, nothing is said about the legal status of conditions and guarantees, about the consequences for their violation or about possible damages.

5.5.2

Legal Remedies Against the Violation of a Guarantee in the Requesting State

Under international judicial cooperation, when Italy, as the requesting state, gives guarantees in order to remove obstacles to cooperation with another state and then violates them, it might be possible for the concerned individual, in some instances (at least when the guarantees need to be complied with by judicial authorities), to file a complaint before the Italian competent judicial authority (for example, in case of extradition, individuals may activate an ‘execution instance’—incidente di esecuzione).

66 The possibility to condition the enforcement of a judgment both in the passive and active cooperation procedure has been added only with the reform of 2017. Before 2017, this possibility was much discussed and, in the Baraldini case, was dismissed by the Constitutional Court, 19–22 March 2001, n. 73. On this point, see amplius Picciotti (2019), pp. 125 ff.

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Action against Italy cannot be taken on the initiative of individuals. The same applies under EU judicial cooperation.

5.5.3

Legal Remedies Against the Violation of a Guarantee in the Requested State

Under international judicial cooperation, if the guarantees given by the foreign requesting state are not respected, individuals have no means of complaint against the requested Italian authority that granted cooperation. Individuals cannot require the competent granting authority to take action against the requesting state. The same applies under EU judicial cooperation.

5.6

Effectiveness of Judicial Review

5.6.1

General Requirements

5.6.1.1

The General Framework of International Cooperation in Criminal Matters

Under international judicial cooperation, judicial review is provided as follows.

5.6.1.1.1

Extradition

When Italy is the requested state, the requested person shall be informed of the request before a decision is taken. In fact, the person concerned is first questioned by the Public Prosecutor (Art. 703.2 CPP) and then summoned (together with his/her defence lawyer) to a hearing before the Court of Appeal (Art. 704 CPP), where the request for extradition will be discussed. Before the hearing, for at least 10 days, the prosecution’s conclusions on the request (requisitoria) and the materials on which they are founded (including information on the legal basis of the request under foreign law) are filed at the office of the Court of Appeal and, after specific notice of the filing, can be examined and copied by the person concerned and his/her defence lawyer (Art. 703.5 CPP). It is not clear whether these materials shall be translated. However, a translation might be due upon the request of the interested party, according to the general provision under Art. 143.3 CPP.

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According to general rules (Art. 588.1 CPP), appeal before the Court of Cassation against the sentence on extradition delivered by the Court of Appeal does have a suspensory effect in Italy (extradition is not executed pending the appeal).67 If extradition is found inadmissible, it may be possible to claim damages only for wrongful detention (according to the general rules under Art. 314 CPP) in case the requested person has been subject to a precautionary custodial measure following an extradition request. Challenging the request in the foreign legal system does not have a suspensory effect on the extradition procedure in Italy. When Italy is the requesting state, there is no obligation to inform the person concerned. However, if extradition requested by Italy may eventually result in wrongful detention, the extradited person may claim damages (according to the general rules, under Art. 314 CPP) also for the precautionary custodial measure he/she suffered in the requested state following the extradition request (Art. 722-bis CPP).

5.6.1.1.2

Legal Assistance

When Italy is the requested state, the person concerned shall not be informed of the request before a decision is taken. In fact, there is no obligation to notify the person concerned even after the request is executed since no remedy is provided against this modality of cooperation. According to uniform case law, in Italy, the only remedy is the ‘execution instance’ (incidente di esecuzione) against the measure, once executed—a remedy that deals only with violations affecting execution. Before this remedy is lodged, the person concerned may have access to the decision taken by the Italian authority on the execution of the request but not to other information concerning the request itself. The translation is not provided for. This remedy does not have a suspensory effect because it applies after the measure has been carried out. If the remedy is successful in case of seizure, what was seized shall be returned to the legitimate owner. It is not possible to claim damages. Challenging the request in the foreign legal system does not have a suspensory effect on the legal assistance procedure in Italy. When Italy is the requesting state, it is not obliged to inform the person concerned of the request transmitted to a foreign authority. That person becomes aware of the request and its execution only at the end of the investigation stage or at the trial.

67 Suspensory effect of the appeal before the Court of Cassation is also implicit in the provision under Art. 708.1 c.p.p., according to which the Ministry of Justice ultimately decides on extradition no later than 45 days after receiving the notification of the filing of the sentence delivered by the Court of Cassation.

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Under general rules, the only remedy that the person concerned can activate invoking the ‘illegality’ of evidence gathered abroad is appeal of the sentence delivered by the tribunal of first instance, in order to exclude the use of that evidence in criminal proceedings. The person may have access to the file concerning the request before lodging the appeal. Translation is not provided for. No damage can be claimed.

5.6.1.1.3

Enforcement of Judgments

When Italy is the requested state, the person concerned shall be informed of the request before a decision is taken. That person (and his/her defence lawyer) shall be summoned to a hearing before the Court of Appeal where the request will be discussed (Art. 734 CPP). The person concerned should have access to the judgment of which execution in Italy is requested, and this judgment shall be translated (Art. 730.1).68 Under general rules (Art. 588.1 CPP), appeal before the Court of Cassation against the sentence deciding on the request for enforcement does have a suspensory effect. If enforcement of the foreign judgment is found inadmissible, it is possible to claim damages only for wrongful detention (according to the general rules under Art. 314 CPP) in case the sentenced person has been subject to precautionary custodial measure following the request for enforcement. Challenging the request in the foreign legal system does not have a suspensory effect on the enforcement procedure in Italy. When Italy is the requesting state, there is an obligation to inform the person concerned, whose consent is necessary in order to forward the request to another state (Art. 742.2 CPP), save when the sentenced person is in the territory of the requested state and extradition was denied or is not possible (Art. 742.3 CPP). When the judgment of which enforcement is requested inflicts a custodial sentence, the person concerned shall be summoned to a special hearing before the Court of Appeal (Art. 743 CPP). Consent may be given before the Court of Appeal or before the General Prosecutor outside the hearing. The sentenced person should have access to the judgment of which enforcement is requested, and this judgment shall be translated (Art. 143.2 CPP). Under general rules (Art. 588.1 CPP), appeal before the Court of Cassation against the sentence deciding to forward the request for enforcement abroad does have a suspensory effect. If the request is found inadmissible, the request will not be forwarded.

68

There is no need for the translation to be certified as long as the conformity with the original text is proved (Cass., VI, 9 February 2018, n. 15862).

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No damage can be claimed.

5.6.1.2

The Framework of Cooperation Within the EU

Under EU judicial cooperation, judicial review is provided as follows.

5.6.1.2.1

European Arrest Warrant

When Italy is the executing Member State, the person concerned shall be informed of the European arrest warrant before making a decision on whether or not to execute the warrant. In fact, the person concerned (together with his/her defence lawyer) shall be summoned to a hearing before the Court of Appeal, where the warrant will be discussed. If the person appears in court, he/she shall be heard (Art. 17 of Law n. 69/2005). Before this hearing, the European arrest warrant and the accompanying documentation, including the legal basis of the request under foreign law, is filed at the office of the Court of Appeal and can be accessed by the person concerned and his/her defence lawyer (Art. 10.4 of Law n. 69/2005, applicable when a precautionary measure is ordered before a decision on the European arrest warrant is taken, should be equally applicable when a precautionary measure is not ordered). Access to this material will be useful also to lodge an appeal in case of a sentence in favour of the surrender. Translation of the European arrest warrant and the accompanying documentation is due (Arts. 6.5 and 6.7 of Law n. 69/2005).69 Before the Court of Cassation, appeal (on both merits and legitimacy) against a sentence on surrender does have a suspensory effect (Art. 22.2 of Law n. 69/2005). Therefore, surrender cannot take place pending the appeal. However, if the appeal before the Court of Cassation is lodged against an order rather than a sentence (the order is issued by the Court of Appeal in case consent has been given by the requested person), the suspensory effect is to be excluded. If the European arrest warrant is found inadmissible, it is possible to claim damages only for wrongful detention (according to the general rules under Art. 314 CPP) in case the requested person has been subjected to precautionary custodial measure awaiting a decision on surrender. Challenging the European arrest warrant in the issuing Member State does not have a suspensory effect on its execution in Italy. When Italy is the issuing Member State, there is no obligation to inform the person concerned of the European arrest warrant. The person concerned neither has 69

However, the precautionary measure applied after the validation of the arrest following a European arrest warrant is not invalid if the European arrest warrant has not been translated as long as the arrested person has been informed by the police of the European arrest warrant and its content in a comprehensible language (Cass., VI, 30 October 2019, n. 49545; Cass., VI, 5 April 2017, n. 19025).

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access to information about a request for provisional arrest in an international database, such as the SIS II. An arrest is a surprising measure that cannot be communicated to the person concerned in advance without jeopardising its effectiveness. See, in particular, Art. 67.3 of Regulation 2018/1862/EU on SIS, where Member States are allowed to refuse to provide the person concerned with the information requested in order to (a) avoid obstructing official or legal inquiries, investigations or procedures; (b) avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties; (c) protect public security; (d) protect national security; or (e) protect the rights and freedoms of others.

5.6.1.2.2

European Investigation Order

When Italy is the executing Member State, there is an obligation to inform the person concerned and his/her defence lawyer of the recognition of the European investigation order under the same conditions applicable if the measure was ordered in a domestic case (Art. 4.4 of Legislative Decree n. 108/2017). Therefore, if the lawyer has the right to participate in the carrying out of the investigative measure, he/she shall be given a notice. If the lawyer has only the right to assist in the carrying out of the investigative measure, he/she shall be informed as soon as the measure is carried out (without notice) or immediately afterwards. If the lawyer has no right, no communication is due.70 Since notice/communication of the decree of recognition (besides allowing the full exercise of the defence right71) is aimed at allowing the opposition against the same decree,72 in case the defence lawyer does not enjoy the right to participate in or at least assist in the carrying out of the measure, no opposition will be allowed against the recognition decree.73 Before the person concerned or his/her lawyer lodges an opposition before the judge of preliminary investigations (the only remedy allowed) against the decree of recognition issued by the Public Prosecutor, it might be possible to access the records of the measures executed following a European investigation order in case the defence lawyer had the right to assist: to this end, such records are filed at the office of the Public Prosecutor in compliance with the general rule under Art. 366.1 CPP (Art. 4.8 of Legislative Decree n. 108/2017). Translation is not provided for. Oppositions do not have a suspensory effect. However, pending an opposition, the Public Prosecutor may decide not to forward information/evidence resulting

70

Lorenzetto (2019), pp. 350 f. and Rafaraci (2019), p. 303. Lorenzetto (2019), p. 350. 72 Delayed communication results in a violation of the right of defence (Cass., VI, 31 January 2019, n. 8320). 73 Rafaraci (2019), p. 303. 71

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from the execution of the European investigation order if there could be severe and irreparable consequences for the suspect, the defendant or other persons concerned (Art. 13.4 of Legislative Decree n. 108/2017). The Public prosecutor shall inform the issuing authority of the outcome of the opposition, whatever it is (Art. 13.3 of Legislative Decree n. 108/2017). If an opposition is successful, the European investigation order’s recognition is annulled (Art. 13.3 of Legislative Decree n. 108/2017). However, if information/ evidence was already transmitted, no return is provided for, nor can damages be claimed. Challenging a European investigation order in the issuing Member State does not have a suspensory effect on its execution in Italy. When Italy is the issuing Member State, there is no obligation to inform the person concerned about the issuing of the European investigation order. Only after the European investigation order has been executed in the executing Member State must the issuing authority notify the person concerned and his/her defence lawyer the information/documentations resulting from the execution of the European investigation order abroad and transmitted to the Italian authority in the cases and according to the modalities applicable under Italian criminal procedure (Art. 35 of Legislative Decree n. 108/2017). This means that if some materials shall remain secret for a certain period, at latest until the end of investigations, according to national law, these materials will not be notified. The only remedy against a European investigation order issued by the Italian authority consists of ‘re-examination’ (riesame) when the European investigation order concerns a seizure (Art. 28.1 of Legislative Decree n. 108/2017). This remedy does not have a suspensory effect since it can only be activated after the European investigation order has been executed and things have been seized. An appeal against such a European investigation order before the Court of Appeal or before the Court of Cassation is also possible (Art. 28.2 of Legislative Decree n. 108/2017). The filing of the documentation on which the request for seizure is founded is provided for only after ‘re-examination’ is lodged, before the hearing for ‘reexamination’ takes place (as it happens in domestic cases, according to the general rule under Art. 324.6 CPP). If the re-examination or the subsequent appeal before the Court of Cassation is successful, what was seized shall be returned to the legitimate owner.

5.6.1.2.3

Enforcement of Judgments in the EU

When Italy is the executing Member State, there is an obligation to inform the person concerned before deciding on the enforcement of a judgment issued by another Member State. In fact, such decision is taken by the Court of Appeal by sentence only after having heard the General Prosecutor, the defence lawyer and the sentenced person (Art. 12.5 of Legislative Decree n. 161/2010), whose consent is compulsory—save when: he/she is an Italian citizen and is a resident in Italy, or must be deported to Italy based on an expulsion or deportation order included in the

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judgment or in a judicial or administrative decision or any other measure taken consequential to the judgment; or he/she has fled to Italy or returned in Italy in view of the criminal proceedings pending against him/her or following the judgment and the Ministry of Justice has authorised enforcement in Italy (Art. 10.4 of Legislative Decree n. 161/2010). The judgment or essential parts of it shall be translated into Italian (Art. 12.3 of Legislative Decree n. 161/2010). The judgment shall also be translated into the language of the sentenced person (according to the general rule under Art. 143.2 CPP). The sentence on recognition and enforcement of a foreign judgment shall be notified to the sentenced person (Art. 12.7 of Legislative Decree n. 161/2010). Indeed, this sentence is subject to appeal before the Court of Cassation, on both merits and legitimacy (Art. 12.10 of Legislative Decree n. 161/2010). Appeal before the Court of Cassation does have a suspensory effect (see Art. 12.10 of Legislative Decree n. 161/2010, which recalls Art. 22 of Law n. 69/2005 implementing the European arrest warrant). Therefore, only after the Court of Cassation decides on the appeal can the Court of Appeal communicate the final decision on recognition and enforcement to the issuing Member State. If the appeal is successful, damages can be claimed only for wrongful detention (according to the general rules under Art. 314 CPP) in case the sentenced person has been subject to precautionary custodial measure awaiting the decision on recognition and enforcement. Challenging the request in the foreign legal system does not have a suspensory effect on the recognition and enforcement procedure in Italy. When Italy is the issuing Member State, there is an obligation to inform the person concerned before forwarding a sentence to another Member State when: (a) consent of the person concerned is compulsory, i.e. when the executing Member State has given its consent to the forwarding of the sentence in the consultation stage—save when this Member State is the state to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him/her in the issuing Member State or following the conviction in that issuing Member State (Art. 5.4 of Legislative Decree n. 161/2010); (b) the person concerned is in Italy—in this case, he/she shall be heard before the Court decides whether to forward the judgment (Art. 6.2 of Legislative Decree n. 161/2010). The judgment shall be translated into the language of the executing Member State (Art. 6.7 of Legislative Decree n. 161/2010). The judgment shall also be translated into the language of the sentenced person (according to the general rule under Art. 143.2 CPP). The Italian authority has an obligation to inform the sentenced person that it has decided to forward the judgment. When the sentenced person is in the executing Member State, it is for the authority of this Member State to inform the convicted person accordingly (Art. 6.6 of Legislative Decree n. 161/2010).

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Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

Italian national law does not help in finding a lawyer in a foreign state for any of the possible modalities of judicial cooperation. However, Art. 9.5-bis of Law n. 69/2005 implementing the European arrest warrant (added by Legislative Decree n. 184/2016, in compliance with Directive 2013/48/EU) establishes that, when executing a precautionary measure pending the decision of the Italian judicial authority on the execution of a European arrest warrant, the police officer or agent has an obligation to inform the person concerned of the possibility to appoint a defence lawyer in the issuing Member State. The same applies in case of arrest74 (Art. 12.1-bis of Law n. 69/2005). If the person concerned appoints a defence lawyer in the issuing Member State or if he/she expresses the will to do so, the Court of Appeal shall inform the competent authority of the issuing Member State.75 When Italy is the issuing Member State, Art. 29.4 let. c) disp. att. CPP (as modified following the implementation of Directive 2013/48/EU) provides that a person arrested abroad in the execution of a European arrest warrant shall be given the possibility to access a list of lawyers on call in order to promptly appoint one who shall assist the lawyer appointed in the executing Member State.76 In addition to dual defence, Italy has recently implemented Directive 2016/1919/ EU on legal aid, by Legislative Decree n. 24/2019, which gives further effect to the right of defence in surrender procedures under the European arrest warrant. The newly added Art. 75.2-bis DPR n. 115/2002 concerning legal aid grants free legal assistance in Italy whether Italy is the issuing Member State (in favour of the defendant who is under proceedings but not in favour of the finally sentenced person) or the executing Member State (from the arrest following the European arrest warrant77 until the surrender or until the final decision on refusal of surrender).78 As far as translation/interpretation is concerned, on a general level, Art. 143.1 CPP provides for free assistance by an interpreter for lodging requests79 (even if not expressly provided for, the generic term ‘requests’ should include appeals and any other legal remedy). Article 143.2 CPP provides for the translation of any sentence. 74

If this due information is not given upon arrest, the arrested person can invoke nullity in the validation hearing (Cass., VI, 6 November 2017, n. 51289). 75 Bargis (2016), p. 45 f.; Quattrocolo (2016), Siracusano (2017), p. 218, points out that this ‘approach’ to the defence right should apply to any cooperation procedure based on mutual recognition, and therefore to the European investigation order system too. 76 Siracusano (2017), p. 236. 77 Therefore, in line with the EU Directive, if the requested person is not arrested, he/she will not benefit from legal aid. 78 Grisonich (2019), p. 218. 79 In compliance with Art. 2.2 of Directive 2010/64/EU.

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However, as for sentences granting extradition, the Court of Cassation affirmed that translation is due only upon the request of the interested person.80 However, the Court of Cassation affirmed that once the defence lawyer has appealed to the Court of Cassation, the lack of translation of the appealed sentence is not relevant as the right to appeal before the Court of Cassation cannot be exercised personally by the defendant.81 In any case, interpretation and translation are only guaranteed if there is evidence that the defendant does not understand Italian: ensuring this is the responsibility of the judicial authority. Anyway, knowledge of the Italian language is assumed with regard to Italian citizens as long as it is not disproved (Art. 143.4 CPP).82 There is no other procedural support available.

5.6.3

Ineffectiveness of Ex Post Facto Judicial Review?

Under international judicial cooperation, when Italy is the requested state and the decision in favour of the execution of a request for cooperation is found unlawful after a remedy has been lodged, given the suspensory effect of the appeal before the Court of Cassation against a sentence on extradition and a sentence on the enforcement of a foreign judgment, no negative consequences for the person concerned occur. No remedy is provided against the execution of a request for legal assistance. Therefore, such execution cannot be repealed in Italy. When Italy is the requesting state and the decision on granting cooperation or its execution in the requested state is then found illegal, nothing is provided for. However, in the case of extradition, the Ministry of Justice may consent to return the extradited person to the requested state upon an explicit extradition request (according to Art. 697.1 CPP, the surrender of a person to another state can take place only via extradition). In case of enforcement of an Italian judgment in the requested state, the Ministry of Justice may ask that the person serving a sentence abroad be returned to Italy to serve a sentence in Italy, again via an extradition request to this end (see Art. 697.1 CPP). In case of legal assistance, the only possibility is that the person concerned appeals against the sentence delivered by the tribunal of first instance to ask not to use the evidence resulting from ‘illegal cooperation’. There is no obligation to return it to the requested state.

80

Cass., VI, 12 February 2015, n. 20634. Cass., III, 4 April 2019, n. 29406. The appeal before the Court of Cassation lodged directly by the defendant is inadmissible according to the general provision under Art. 613 c.p.p., as amended by Law n. 103/2017 (Cass., VI, 13 September 2017, n. 42062). 82 Cass., II, 19 June 2018, n. 30379. 81

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Under EU judicial cooperation, when Italy is the issuing Member State and the decision on recognition and execution in the executing Member State is then found illegal, no provisions deal with this situation under national implementing laws. Under the European arrest warrant, the Italian judicial authority may not return the surrendered person unless a European arrest warrant is issued by the Member State where recognition and execution of the European arrest warrant were found illegal. In Italy, judicial authorities do not have the power to surrender people outside the extradition/European arrest warrant scheme (Art. 697.1 CPP). In case of enforcement of an Italian judgment in another Member State, the Italian judicial authorities may issue a European arrest warrant to request back the sentenced person transferred to this other Member State to enforce the judgment in Italy. Under the European investigation order, the person concerned may ask not to use the evidence resulting from illegal recognition or execution abroad and may subsequently appeal against the sentence delivered by the tribunal of first instance that used such evidence anyway. There is no obligation to return it to the executing Member State. If a European investigation order concerns a seizure and if ‘reexamination’ (riesame) is successful, what has been seized shall be returned to the legitimate owner and can no longer be used as evidence. When Italy is the executing Member State and the decision on the recognition or execution of a request for cooperation is found unlawful after a remedy has been lodged, given the suspensory effect of an appeal before the Court of Cassation against the recognition and execution of a European arrest warrant and the recognition and enforcement of a foreign judgment, no execution takes place before a final decision. The only exception concerns an appeal before the Court of Cassation of an order (rather than a sentence) in favour of the execution of a European arrest warrant (issued by the Court of Appeal after consent by the requested person has been given), which does not have a suspensory effect. In this case, the European arrest warrant is executed before the outcome of the appeal is known. However, execution of the European arrest warrant may be conditioned on the transfer of the surrendered person in Italy if the appeal results in a decision contrary to the surrender. In the case of a European investigation order, opposition against the recognition decree of the Public Prosecutor before the judge of preliminary investigations does not have a suspensory effect (Art. 13.4 of Legislative Decree n. 108/2017). Therefore, information/evidence shall be gathered and may be transmitted to the issuing Member State before the outcome of the opposition is known. However, the Public Prosecutor may decide not to transfer evidence awaiting the result of the opposition if he/she believes that this may cause serious and irreparable consequences to the suspect, the defendant or other persons concerned. Anyway, the Public Prosecutor shall inform the issuing authority of the outcome of the opposition (Art. 13.3 of Legislative Decree n. 108/2017). If an opposition is successful, the recognition of the European investigation order is annulled (Art. 13.3 of Legislative Decree n. 108/ 2017), but information/evidence already transferred does not have to be returned to Italy. There is no obligation to condition the recognition or execution of a European

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investigation order on the return of information/evidence by the issuing Member State once recognition or execution is found unlawful in Italy.83

References Bargis M (2016) Il diritto alla “dual Defence” nel procedimento di esecuzione del mandato di arresto europeo: dalla direttiva 2013/48/EU alla direttiva (UE) 2016/1919. Diritto penale contemporaneo - Rivista trimestrale 3:40–50 Calvanese E (2019) La “nuova” assistenza giudiziaria: le rogatorie dall’estero e per l’estero. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Ceresa-Gastaldo M (2005) I mezzi di impugnazione. In: Bargis M, Selvaggi E (eds) Mandato d’arresto europeo. Dall’estradizione alle procedure di consegna. Giappichelli, Torino De Amicis G (2019) Il principio del reciproco riconoscimento e la sua attuazione nel diritto interno. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Grisonich E (2019) L’attuazione della direttiva 2016/1919/UE: un timido intervento in materia di patrocinio a spese dello Stato. Diritto penale contemporaneo 5:213–230 Lorenzetto E (2019) I diritti della difesa nelle dinamiche dell’ordine europeo di indagine penale. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Marchetti MR (2019) L’estradizione. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Marcolini S (2019) La procedura attiva. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Piacente N (2018) Overview of Italian legislation and case law on judicial cooperation. Diritto penale contemporaneo 9:25–68 Picciotti V (2019) Le modifiche in tema di effetti delle sentenze penali straniere e di esecuzione all’estero delle sentenze penali italiane. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Quattrocolo S (2016) Interventi minimi in materia di diritto di accesso al difensore: la recente trasposizione della direttiva 2013/48/UE. www.eurojus.it Rafaraci T (2019) Il procedimento passivo di riconoscimento ed esecuzione (Arts. 4-6, 8, 12-14 D. LGS. n. 108/2017). In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan Siracusano F (2017) Il diritto all’assistenza del difensore nel procedimento di esecuzione del mandato d’arresto europeo. In Negri D, Renon R (eds) Nuovi orizzonti del diritto alla difesa tecnica. Un itinerario tra questioni attuali e aperture del quadro normativo. Giappichelli, Torino

83

Rafaraci (2019), p. 311.

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Spagnolo P (2019) I presupposti e i limiti dell’ordine di indagine europeo nella procedura passiva. In: Marchetti MR, Selvaggi E (eds) La nuova cooperazione giudiziaria penale. Dalle modifiche al Codice di Procedura penale all’Ordine europeo di indagine. Cedam, Milan

Tommaso Rafaraci Professor of Criminal Procedure Law, University of Catania, Italy.

Chapter 6

Country Report “the Netherlands” Michiel Luchtman

6.1 6.1.1

Overview Judicial Protection in the Criminal Justice System

The Dutch Constitution (Grondwet) does not entail a provision guaranteeing the rights to a fair trial and an effective remedy, though there are discussions on including such a guarantee in the Constitution. That does not mean, however, that citizens are currently left with empty hands. In the Dutch monist Constitution, Articles 93 and 94 stipulate the following: Article 93 – Provisions of treaties and of resolutions by international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published. Article 94 – Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties or of resolutions by international institutions that are binding on all persons.1

On the basis of these provisions, Articles 6 and 13 ECHR have direct effect in the Netherlands, meaning that they can be invoked by citizens in legal proceedings and that, should the circumstances arise, conflicting national laws are not to be applied. The relevance of these provisions is tremendous because Dutch courts are not allowed to assess statutory laws in light of the Constitution (in case it would have

1 The Constitution of the Kingdom of the Netherlands 2018, Ministry of the Interior and Kingdom Relations.

M. Luchtman (*) Utrecht University, Faculty of Law, Economics and Governance, Utrecht, The Netherlands © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_6

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a fair trial guarantee).2 EU law, incidentally, has its effects in the Dutch legal order by virtue of (the supremacy of) EU law itself, not via the mentioned articles of the Constitution.3 The absence of a constitutional guarantee does not lead to significant loopholes in legal protection. In the Dutch legal system, civil courts have a residual competence and are competent to hear cases where no specific criminal or administrative remedies are available. Civil courts will, on the basis of a long-standing interpretation of Article 112 of the Constitution,4 always hear a case when one claims a violation of one’s (civil) rights. Violations of those rights constitute a tort (onrechtmatige daad, Art. 6:162 Civil Code). As the decisions of civil courts may interfere with decisions in subsequent criminal or administrative procedures, their scope of review is, in principle, a marginal one; the civil courts will only establish a tort if it is proven beyond reasonable doubt (buiten redelijke twijfel) that the Dutch state acted unlawfully. The civil courts’ residual competence also opens up the route to pro-active protection via civil summary procedures (kort geding). In such procedures, the Dutch state may, for instance, be ordered to do something or to refrain from doing something, for instance transferring a person to the requested state. This residual function plays a particularly important role in cases of international legal assistance (in the wide sense), certainly where acts of the executive are concerned. The Supreme Court (Hoge Raad (HR)) has held, incidentally, that in cases where rights guaranteed by the European Convention on Human Rights (ECHR) are in play, the review exercised by these civil courts is ‘full’ and not a marginal assessment of the actions of the executive. That is because those rights are ‘binding on all persons by virtue of their contents'.5 The provisions of the ECHR do not make a distinction between purely national and transnational proceedings per se. More or less in line with the findings of the European Court of Human Rights,6 the Supreme Court has consequently held that Dutch courts are responsible for guaranteeing the fairness of (Dutch) criminal proceedings and thus for the use of foreign materials in such proceedings.7 The

Art. 120 Constitution reads: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’ 3 Supreme Court of the Netherlands, judgment of 2 November 2004, NJ 2005/80. 4 The (unofficial) English version of Art. 112 (1) Constitution reads: ‘The adjudication of disputes involving rights under civil law and debts shall be the responsibility of the judiciary.’ 5 Supreme Court of the Netherlands, judgment of 15 September 2006, ECLI:NL:HR:2006:AV7387. 6 European Court of Human Rights (ECtHR), judgment of 27 June 2000, Application no. 43286/98 (Echeverri Rodriguez v. The Netherlands): ‘[T]he subsequent use of (. . .) information [obtained by the investigating authorities from sources such as foreign criminal investigations] can raise issues under the Convention where there are reasons to assume that in this foreign investigation defence rights guaranteed in the Convention have been disrespected. However, the applicant has not substantiated in any way that such reasons existed in the instant case.’ 7 Supreme Court of the Netherlands, judgment of 5 October 2010, ECLI:NL:HR:2010:BL5629, discussed in more detail below. The wordings of the Supreme Court does not appear to be fully in 2

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foregoing does not mean, however, that Dutch courts consider themselves generally competent to assess actions of foreign authorities, as will be discussed in more detail below.

6.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

6.1.2.1

Incoming Requests for Assistance

Incoming mutual legal assistance (MLA) proceedings usually involve the prosecution service, the courts (including examining magistrates) and the Minister of Justice and Security. Though there are similarities between the procedures, each type of assistance follows its own procedures.

6.1.2.1.1

Extradition Proceedings8

As the oldest form of international cooperation, extradition law clearly bears the trademarks of the dual character of extradition procedures. The procedure is a complicated interplay between the Minister of Justice and Security, the Public Prosecution Service (which upon transmission of the request by the Ministry seizes the extradition court and then acts as the representative of the Dutch state and also, to a certain extent, as that of the requesting state),9 the extradition chamber of the district court (Rechtbank) and, possibly, the Supreme Court (Hoge Raad).10 Whereas the extradition court assesses whether extradition may be declared admissible (toelaatbaar verklaren), the Minister takes the decision to grant extradition (uitlevering toestaan). The Minister is bound by a negative admissibility ruling of the extradition courts. The Minister’s decision is not subject to administrative review (Art. 8:5 Algemene Wet Bestuursrecht (Awb)/General Administrative Law Act (GALA)). That is why the civil courts offer residual redress against the decision of the Minister (district courts, appellate courts and the Supreme Court). On average,

line with those of the European Court of Human Rights in the previous footnote: ‘[D]e taak van de Nederlandse strafrechter [is] ertoe beperkt te waarborgen de wijze waarop van de resultaten van dit onderzoek in de strafzaak tegen de verdachte gebruik wordt gemaakt, geen inbreuk maakt op zijn recht op een eerlijk proces, zoals bedoeld in art. 6, eerste lid, EVRM.’ 8 I have disregarded the expedited extradition procedure in this chapter; see Art. 41 et seq. Extradition Act. 9 Glerum and Rozemond (2015), p. 182. 10 Appeal on legal grounds (cassatie) against the admissibility decision is possible with the Supreme Court of the Netherlands; Art. 31 (1) EA. If granted, the Supreme Court must do what the district court should have done. It then acts as the competent extradition court.

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extradition procedures in which all stages of the proceedings were followed last for about 1.5 years. The whole process is streamlined by specialized units within the executive and, sometimes, the judiciary. Within the Ministry, a special centralized department handles international criminal cooperation, specifically extradition and mutual legal assistance. This central authority is the Afdeling Internationale Rechtshulp in Strafzaken (AIRS). It is complemented by ten decentralized Centres for International Legal Assistance in criminal matters (Internationale Rechtshulpcentra (IRCs)), vested within local branches of the Dutch Prosecution Service.11 These centres comprise of representatives of the Prosecution Service and the police. All incoming/outgoing requests for assistance are, as a rule, routed via these specialized services.12 Requests for mutual legal assistance are, moreover, registered in the Landelijke uniform registratiesysteem inzake internationale rechtshulp in strafzaken (LURIS). In the wake of the so-called Van Laarhoven case,13 the mutual responsibilities of the involved actors have recently been reiterated and clarified in the Protocol Samenwerking bij Internationale Rechtshulp.14 As opposed to outgoing requests for extradition (inlevering), incoming requests must always be based on a treaty.15 That treaty requirement is said to be a constitutional right for individuals16 as the existence of a treaty expresses a minimum level of trust in the legal system of the other state. A treaty presupposes both the presence of equivalent standards in the other state as well as the basis for a rule of non-inquiry (vertrouwensregel). More recent case law implies that certainly for non-absolute rights, the mutual applicability of fundamental rights treaties guaranteeing a right to an effective remedy has limited the scope of review of Dutch authorities further.17 After an initial check of the request,18 the Ministry will forward it to the Prosecution Service, who subsequently seizes the court. According to Article 26 of the Extradition Act (EA), the extradition court must examine, first, the identity of the person claimed. It also examines whether all required documents, as required by the treaty, have been produced (genoegzaamheid van de stukken) and whether all formal conditions prescribed by the treaty and law are fulfilled. The latter entails, particularly, an examination of the conditions for extradition (including the condition of qualified double criminality) and the presence of refusal grounds for which the courts are competent.19 Because the procedure in extradition cases has close links

11

On the IRC’s, see also Van Wijk (2017), p. 120 et seq. Mo re information is found (on ly in Dutch, astonish ingly) via https: //www. internationalerechtshulp.nl/, (Accessed 4 June 2019). 13 Infra note 181. 14 The Protocol is attached to Kamerstukken II 2019/20, 31753, 191. 15 Art. 2 (3) of the Constitution; Articles 2 and 51a EA. 16 Swart (1997), p. 93. 17 In extenso, Kraniotis (2016), p. 165 et seq. 18 Articles 19 and 20 EA. 19 Glerum and Rozemond (2015), p. 182. 12

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to the criminal procedure, a great number of relevant provisions of the Code of Criminal Procedure (CCP, Wetboek van Strafvordering) apply accordingly to it, including the right to silence.20 Though it is not entirely clear, the examination by the court does not entail the advisory part of its work.21 Extradition courts also advise the Minister, when extradition is declared admissible, in his or her decision-making process.22 The latter process includes an assessment of the (often optional or conditional) grounds for refusal, included in the treaty, case law or the Extradition Act.23 As said, the Minister is not bound by a positive decision of the extradition court to grant extradition. He or she is, however, bound by a negative decision of that court.24 The division of labour between the courts and the executive is not always clearcut. As a rule of thumb, anything that has not been attributed specifically to the courts falls within the competences of the Minister.25 The latter is said to be better placed to deal with assessing the state of affairs in a foreign state, in terms of both the capabilities to assess the local circumstances as well as the legal consequences to be attached to it. The Minister is also better placed to discuss and negotiate the content of guarantees that may have to be assured or to deal with the policy implications of extradition cases.26 The examination by courts, by contrast, is limited to what follows directly from the documents presented by the requesting state or, alternatively, all other factors that can be ascertained by the court without further thorough investigation.27 Issues of detention/deprivations of liberty in the course of the procedures rest, of course, with the courts. The division of labour is particularly complicated for human rights defences. In a number of recent judgments, the Supreme Court seized the opportunity to clarify and reiterate its case law.28 The starting point is that where requests are based on extradition treaties, the requested state must be trusted to respect the guarantees

20

See Art. 29 EA, in conjunction with, inter alia, Art. 271 CCP. Cf. The Procureur-General to the Supreme Court, Opinion of 17 April 2012, ECLI:NL: PHR:2012:BW2489, para 39–43. 22 Art. 30 (2) EA. 23 Examples are found in Art. 4 (prosecution of nationals for purposes of prosecution) EA, Art. 8 EA (death penalty), Art. 10 EA (discriminatory prosecution or hardship), and art. 7 European Extradition Treaty (exception of territoriality). 24 Art. 33 (2) EA. 25 Glerum and Rozemond (2015), pp. 191–192. 26 Cf. District Court The Hague, judgment of 31 August 2017, ECLI:NL:RBDHA:2017:9893, as cited in Supreme Court of the Netherlands, judgment of 23 February 2018, ECLI:NL:HR:2018:289. 27 Cf. Supreme Court of the Netherlands, judgment of 5 September 2006, LJN AY3440, para 4.4. 28 The following paragraphs are a summary of Supreme Court of the Netherlands, judgment of 21 March 2017, ECLI:NL:HR:2017:463. See also Supreme Court of the Netherlands, judgment of 30 October 2018, ECLI:NL:HR:2018:2019 (prosecution—imminent flagrant denial of justice; use of statements obtained from co-defendants in violation of Art. 3 ECHR), in which the Supreme Court has clarified that extradition treaties not only include specific bi- or multilateral extradition treaties, but also the thematic treaties, listed in Art. 51a EA. 21

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embedded in the ECHR or the International Covenant on Civil and Political Rights (ICCPR) in the course of its criminal proceedings. This rule is not absolute, however. Relevant case law mainly deals with the conflicts between the duty to extradite and violations of Articles 3 and 6 ECHR. Dutch courts follow the Strasbourg standards, yet in applying these standards, Dutch case law has developed a complicated division of competences, involving the extradition courts, the Minister and the civil courts. With respect to Art. 3 ECHR, the Minister is allowed—even obliged—to refuse extradition in cases where reasonable grounds (gegronde vermoedens) are established that said Article 3 will be violated after extradition to the requested state. The extradition court is only competent to hear cases of completed violations of Article 3 ECHR and only where these violations have occurred in the course of the proceedings, which led to the extradition request by or on behalf of agents of the requesting state.29 The latter limitation, obviously, significantly reduces the scope of review by the extradition courts. With respect to Article 6 ECHR or Article 14 ICCPR, the same rule applies: it is in principle the Minister who is competent. The standards to be applied are those of Strasbourg. Extradition courts are, however, competent to deal with completed flagrant denials of justice in extradition procedures for the purpose of execution. If established, extradition must be refused. Additionally, in cases of extradition for the purposes of prosecution and for those states who are a party to the ECHR or the ICCPR, it must be assumed that violations of one’s human rights can be brought before the courts of the requesting state. Those courts must, after all, ensure the fairness of the trial. Consequently, possible future violations of said articles are not a matter for the extradition courts. It is possible, however, that the latter express their concerns in their advice to the Minister, who may ask the requesting state for guarantees. Moreover, as the fairness of the procedure can only be established after the judgment(s) of the court(s) of the requesting state, completed violations of Article 6 ECHR or 14 ICCPR will generally neither fall within the competence of extradition courts. The foregoing is different only where it has been established, on the basis of a substantiated defence, that (a) the person claimed will risk a flagrant denial of justice after extradition and (b) effective remedies, as meant in Article 13 ECHR or Article 2 (3) ICCPR, are not available in the requesting state. (Only) in those cases are the extradition courts allowed to declare inadmissible extradition for purposes of prosecution. It is clear that these situations do not occur frequently.30 This is not only because of the high thresholds of the Strasbourg court itself31 but also because of the fact that irregularities in ongoing investigations, even if they hamper specific defence

29

Supreme Court of the Netherlands, judgment of 11 July 2014, ECLI:NL:HR:2014:1680. For a rare example, see the aforementioned case of the Supreme Court of the Netherlands of 30 October 2018, supra note 28. 31 With respect to the flagrant denial test, see ECtHR, judgment of 17 January 2012, Application no. 8139/09 (Othman v. U.K.), para 259. 30

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rights, do not necessarily affect the fairness of the proceedings as a whole. In many cases, it is the use of such materials as evidence that will ultimately disqualify the procedures as ‘unfair’. There have been a number of cases where this distinction was made in relation to ‘entrapment defences’ by US officials, preceding US extradition requests.32 In all other situations than the ones just mentioned, it is, therefore, the Minister who decides. The decision of the latter is, as said, a decision that (or the execution of which) can be challenged via civil summary procedures (kort geding).33 As must be stressed again, these procedures are not the same as the preceding, mandatory proceedings by the extradition courts. They are of a civil law nature because of an alleged tort by the Dutch government. All matters that are within the competence of the Minister can be challenged, including, for instance, the alleged/apparent violation of the speciality principle by the requesting state.34 It is also possible that issues are raised that have already been dealt with by the extradition courts. In those cases, new, convincing circumstances will have to adduced to the court for the remedy to have any effect. Civil courts do not have to assess facts and circumstances that were already addressed by the extradition courts.35 In general, the scope of review is limited. This is different when it comes to fundamental rights that are protected by international treaties. Not even a treaty duty to extradite can set aside the power of Dutch courts to review any action on behalf of the Dutch state that may affect the rights bestowed upon individuals by directly applicable treaty provisions.36 To that extent, the powers of the civil courts are ‘full’ and encompass more than only a review of the reasonableness of the actions of the executive. That implies that courts are, for instance, allowed to comprehensively assess the scope and precision of the guarantees that have been issued by the requesting state to prevent future violations of Article 3 ECHR. As this assessment is of a factual nature, the scope of review by the Supreme Court will be limited.37

6.1.2.1.2

Transfer of Custodial Sanctions

With respect to the transfer of the enforcement of prison sentences, a preliminary issue concerns the fact that the dichotomy ‘requesting’ vs ‘requested’ state does not equal the distinction between the ‘sentencing’ and the ‘administering’/‘enforcement’

32 Cf. Supreme Court of the Netherlands, judgment of 4 September 2018, ECLI:NL:HR:2018:1426; Supreme Court of the Netherlands, judgment of 23 April 2019, ECLI:NL:HR:2019:671. 33 See also Kraniotis (2016), Glerum and Rozemond (2015), pp. 184–185. 34 Glerum and Rozemond (2015), p. 185, with further references. 35 Cf. Supreme Court of the Netherlands, judgment of 11 July 2014, ECLI:NL:HR:2014:1680, para 3.4.5. 36 Supreme Court of the Netherlands, judgment of 15 September 2006, ECLI:NL:HR:2006:AV7387 (Kesbir II). 37 Supreme Court of the Netherlands, Kesbir II, ibid.

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state. Moreover, the sentenced person himself may initiate a transfer. In this subsection, the focus is on the position of the Netherlands as the enforcement state, either upon request or on its own initiative.38 As with extradition cases, such an inward transfer (overname) is possible only on the basis of a treaty.39 The Netherlands is a party to the relevant multilateral treaties of the Council of Europe. The relevant statutory provisions are found in the Enforcement of Criminal Judgments (Transfer) Act (Wet Overdracht Tenuitvoerlegging Strafvonnissen (WOTS)). As with extradition cases, incoming requests will normally be routed via the Ministry of Justice and Security. The competent division within that Ministry is the International Transfer of Criminal Judgments Department (Afdeling Internationale Overdracht Strafvonnissen (IOS)) of the Custodial Institutions Agency (Dienst Justitiële Inrichtingen (DJI)). At this early stage, an important decision must be made already. Article 43 WOTS provides the Minister with the power to initiate, upon his direction (aanwijzing), continued enforcement proceedings, instead of what was originally the default route: the exequatur procedure. Obviously, the applicable treaty needs to enable both routes. Within the EU, continued enforcement has meanwhile become the default procedure.40 Should the consent of the sentenced person be required by a treaty, then such a ministerial direction is possible only where this consent has been given in writing. Already upon receipt of the request, a series of important policy considerations are made. The core of the Dutch transfer policy is to facilitate the reintegration of Dutch nationals (or ‘equivalent persons’), not to relieve them from poor foreign detention conditions.41 Moreover, the Netherlands will not cooperate in those cases where foreign judgments are considered as being contrary to the fundamental principles of a proper criminal procedure (beginselen van een behoorlijke strafprocedure). That means, by implication, that the policy is not a primarily humanitarian approach, rather a rule of law approach. Dutch IOS will consequently check the length of the remaining sanction and assess the person’s ties with the Netherlands.42 Its assessment entails a wide

38 I will focus specifically on the foreign requests to the Netherlands to take over the execution of the sentence. For the cases wherein Dutch authorities request a transfer to the Netherlands, see the relevant provisions of Art. 17 WOTS. 39 Art. 3 WOTS. By implication, this means that outward transfers do not need a treaty basis, which has invoked criticism. Treaties are after all an indication of the quality of a foreign legal order. Moreover, there is the obvious difference with extradition law, under which persons claimed do enjoy the protection of a Treaty (cf. Art. 4 of the Constitution); cf. Sanders (2015), p. 449; Lamp (2000), p. 368 et seq., p. 418 et seq. 40 Kamerstukken II 2013/14, 33742, 3, pp. 1–4; see also Kamerstukken II 2007/08, 31200 VI, 30. 41 These policies are public, see Kamerstukken II 2007/08, 31200 VI, 30. 42 See Custodial Institutions Agency, ‘Information sheet for foreign prisoners in the Netherlands: WOTS’, March 2013, https://www.dji.nl/binaries/information-sheet-for-foreign-prisoners-in-thenetherlands_tcm41-120866.pdf, (Accessed 6 June 2019), and Dienst Justitiële Inrichtingen, ‘Procedure bij internationale strafoverdracht naar Nederland met de WOTS’, March 2013, https://

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discretionary power, both when it comes to the factual assessment of, for instance, whether the person has sufficiently strong ties with the Netherlands and concerning legal issues, for instance whether the sanction has been imposed on discriminatory grounds43 or whether there have been human rights violations in the sentencing state.44 Should the Minister turn down the foreign request, then the sentenced person has the possibility to start civil procedures. The same goes for the decision of the Minister to initiate continued enforcement proceedings.45

6.1.2.1.3

Continued Enforcement

In cases of continued enforcement, the Minister (IOS) will forward the request— after an initial check—to the Advocate General of the Court of Appeal ArnhemLeeuwarden, which has a special chamber for penitentiary issues (penitentiaire kamer). According to Article 43b WOTS, this chamber assesses—also on the basis of the applicable treaty—the conditions for taking over the execution of the custodial sanction (including an assessment of double criminality), the presence of (mandatory) refusal grounds and, where necessary, the need to adjust—within the framework of the treaty—the sentence imposed in the sentencing state. The results of its assessment are laid down in a motivated judgment (oordeel) to the Minister, who then takes the final decision. Where the Court of Appeal has advised negatively, the Minister is bound by that judgment; a direction cannot follow, and the request must be turned down.46 In other cases, the Minister is free to grant the request and to issue the direction (aanwijzing). However, as most of the preparatory work has already been done before the case is sent to the Advocate General, a positive judgment will usually lead to a positive answer by the Dutch authorities to their foreign colleagues and, in case the latter still wish to uphold the request, the actual transfer of the person, who will then be placed in a penitentiary facility (gevangenis).47

6.1.2.1.4

Exequatur Procedures

The WOTS originally designated exequatur procedures as the default procedure. As with continued enforcement, the role of IOS is strong, particularly in the early stages

www.dji.nl/binaries/wots-infoblad-procedure-voor-nederlandse-gevangenen-in-het-buitenland_ tcm41-120870.pdf (Accessed 6 June 2019). 43 Art. 5 WOTS. 44 Cf. Sanders (2015), p. 454. 45 Sanders (2015), p. 441. 46 Art. 43b (6) WOTS. 47 See the documents mentioned in supra, note 42.

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of the procedure. The aforementioned policy issues also need assessment in exequatur proceedings. After the ties with the Netherlands have been established and other formalities have been checked, IOS will send the request to the competent public prosecutor,48 who is then asked to give a ‘strafmaatadvies’, i.e. a preliminary assessment of the request and the sanction that he would have demanded in the case of the sentenced person.49 On the basis of all obtained data, the Minister will then take the decision to continue procedures or not. When procedures are continued, usually arrangements for the actual transfer will be set in motion, and upon arrival in the Netherlands, the transferred person will be provisionally apprehended and detained in a Huis van Bewaring.50 Moreover, upon receipt of the request by the Minister, the competent prosecutor will seize the court (Rechtbank) within 2 weeks.51 The court will then assess the identity of the sentenced person, the completeness of the file, the possibility of the execution of the foreign decision in the Netherlands (which is not the same as the assessment of whether a transfer is deemed appropriate)52 and other relevant circumstances.53 The court is not allowed to enter into the merits of the case,54 save for an examination of the circumstances that are also of relevance for the assessment of double criminality or have to do with the personal circumstances of the sentenced person.55 This is, of course, also why it is important that the sentenced person is present during the hearing, even before the transfer procedures are finally concluded.56 Human rights considerations for which the court is competent are considered at this stage as well.57 Flagrant denials of justice in the sentencing state may, for instance, lead to liability of the Dutch state on the basis of Article 5 ECHR.58 Obviously, there is a significant tension between a refusal on the basis of, for instance, the fairness of the trial in the sentencing state (ordre public) and the goals of the transfer procedure itself, which is perceived to be in the interests of society as a whole and the sentenced person in particular. To my knowledge, it has never occurred that human rights have led to a refusal in transfer proceedings.

48

Art. 15 WOTS. Art. 16 WOTS. 50 Art. 8 WOTS. 51 Art. 18 WOTS. 52 Kamerstukken II 1983/84, 18129, 3, p. 33. 53 Art. 28 (1) WOTS. 54 Art. 28 (3) WOTS. 55 Cf. Art. 28 (5) WOTS. 56 Cf. Art. 27 WOTS. 57 Art. 30 (1)(d) WOTS. Some elements are in the hands of the Minister, see for instance Art. 5 WOTS (discriminatory prosecution or sentence). 58 See also: Supreme Court of the Netherlands, judgment of 1 July 2008, ECLI:NL:HR:2008: BC9545; Kraniotis (2016), p. 192 et seq. 49

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Parliamentary records mention the possibility of a sentence reduction as a—somewhat odd—alternative to the refusal in such cases.59 In cases where no obstacles exist—the file is complete, the treaty and other conditions are met, no refusal grounds are present—the court will grant leave for execution (verlof tot tenuitvoerlegging), after which the second stage of the procedure will start in which the court commutes the foreign sentence into a Dutch one with a view to its execution (exequatur). At this stage, courts must have regard to all relevant elements, including considerations of foreign policy.60 The latter means that courts must show that they have also taken due account of the sensitivities (internationale gevoeligheden) related to the differences between the various national legal systems when it comes to penal and sentencing policies.61 The decision of the court is open for cassatie to the Supreme Court.62 As opposed to continued enforcement, once the judicial stage of the proceedings has become final, the Minister is bound by it, regardless of whether it was a positive or negative decision.

6.1.2.1.5

MLA Proceedings: Interrogations, Searches and Interceptions

Dutch procedures for mutual legal assistance in the strict sense (wederzijdse rechtshulp) have recently been revised.63 These procedures are characterized by a lesser degree of formality. The Minister/AIRS still plays a role in channelling incoming and outgoing requests and formally acts, where treaties do not provide for direct contacts, as the granting authority.64 Yet with an increasing number of treaties enabling for direct contacts, the formal role of the Public Prosecution Service as the granting (and executing) authority is increasing, as is reiterated by the new Article 5.1.4 (4) of the Code of Criminal Procedure.65 As mentioned before, MLA is organized via the Centres for International Legal Assistance in criminal matters (Internationale Rechtshulpcentra (IRCs)). Unlike the other two forms of cooperation, MLA provisions are found in the general code of criminal procedure. An important change, compared to the aforementioned two forms of assistance and also to the previous MLA provisions, is that there is no treaty requirement anymore, not even for intrusive or covert measures. Also, for the latter type of measures, the requirement was abandoned to enable

59

Kamerstukken II 1984/85, 18129, 6, pp. 15–16. Art. 31 WOTS. 61 Supreme Court of the Netherlands, judgment of 18 May 2004, ECLI:NL:HR:2004:AO6410. 62 Art. 32 WOTS. 63 Wet herziening regeling internationale samenwerking in strafzaken, Stb. 2017, 246, and Stb. 2017, 492. 64 Art. 5.1.4 (1) CCP; Kamerstukken II 2015/16, 34493, 3, pp. 14–15. 65 Exceptions to the latter exist for discriminatory prosecutions, tax offences and political offences; see Art. 5.1.5 CCP. 60

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cooperation with countries with which no treaty relations exist and to ensure reciprocity in future cases.66 No need to say that the existence of treaties remains relevant nonetheless. Treatybased requests must be answered to the largest extent possible (Art. 5.1.4 (2) CCP). By contrast, requests without a treaty base can be refused for statutory reasons or for reasons of general interest (algemeen belang),67 including human rights considerations. In the latter case, the threshold of a flagrant denial of justice may not even have to be established. Moreover, the Minister may, in such cases, refuse a request when another state is considered to be better placed for the investigation, in the interest of the proper administration of justice.68 Once it has been established that a request may be granted and no grounds for refusal are present,69 its execution is in the hands of the competent public prosecutor.70 Where investigative measures are requested, those measures can be applied only in cases where they would also have been available in a Dutch investigation on a similar set of facts.71 This, therefore, entails an assessment of double criminality— not as part of the granting decision but as part of the execution stage—and of the other formal requirements for application. However, the requirement does not, as far as treaty-based requests are concerned, imply an assessment of the proportionality of the requested measure or of the investigative interest at stake (onderzoeksbelang).72 For acts for which Dutch law attributes powers to the investigating judge or prescribes his/her prior authorization, there is the additional requirement that the request comes from a ‘judicial authority’ (rechterlijke autoriteit).73 In cases where the assistance of the investigating judge is necessary or wanted, the prosecutor must or may forward the request to the former.74 The execution stage of the proceedings, therefore, clearly follows the structures of the provisions of the Code of Criminal Procedure. The Dutch MLA provisions serve as the link between the investigative powers of criminal procedure under Dutch law and the foreign interests. Specific provisions are in place, additionally, for video conferences75 and for direct transmissions to or interceptions of telecommunications by foreign authorities.76

66 Kamerstukken II 2015/16, 34493, 3, p. 6. The reciprocity argument then is that, as MLA is not possible, because there is no treaty, the requesting stat may in future cases also refuse assistance. 67 Art. 5.1.4. (3) CCP. 68 Kamerstukken II 2015/16, 34493, 3, p. 16. 69 The grounds—all of them mandatory—are listed in Art. 5.1.5. CCP. Compared to the former regime, they have been expanded and now also include an explicit human rights exception (Art. 5.1.5. (3) CCP). 70 Art. 5.1.6. CCP. 71 Art. 5.1.8. (1) CCP. 72 Art. 5.1.8. (1) CCP. 73 Art. 5.1.8. (3) CCP. 74 Art. 5.1.8. (4) CCP. 75 Art. 5.1.9. CCP. 76 Art. 5.1.12 CCP, resp. Art. 5.1.13. CCP.

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The Code of Criminal Procedure does not provide for specific remedies against the granting decision. However, the new provisions do foresee in the form of judicial review at the end of the procedure, but only when, roughly speaking, intrusive, coercive or covert investigative measures have been applied. These procedures clearly serve to protect the interest of the persons concerned, including the defendant; parliamentary records make notice of the fact that in later foreign procedures, possible irregularities in the Dutch MLA procedure will usually not be tested and that these procedures, therefore, fill the gap caused by the rule of non-inquiry.77 A so-called complaint procedure (beklagprocedure) is—save for cases where the secrecy of investigations requires otherwise—consequently open for, inter alia, persons whose objects or data were seized or who were confronted with the recording of data during (digital) searches or with decryption, preservation or restriction orders with respect to data.78 In those cases, the actual transfer of the objects and data will be postponed for two weeks so as to allow that person to file a complaint. The competent court will then assess the relevant treaty and statutory conditions with respect to the granting decision and the execution of the request, but that court is also allowed to—somewhat cryptical—assess ‘the potential consequences of a transfer to foreign authorities’.79 Meanwhile, no data, documents or objects will be transferred before the expiration of the said 2-week term or, in the case of a complaint, the decision on that complaint has become final. There is the possibility of an appeal on legal grounds (cassatie). In addition to the complaint procedure, there is a number of cases in which the court, seized by the public prosecutor, must explicitly grant leave to transfer objects, documents or data to the requesting party (verlofprocedure).80 That happens, in short, where a complaint as just discussed was not possible in order to protect the secrecy of the investigation or where intrusive covert measures—including the interception of telecommunications—were applied to obtain those documents or data. The scope of review is comparable to that of the complaint procedure, yet without, of course, the input of the person concerned.

6.1.2.2

Outgoing Requests for Assistance

Outgoing procedures are markedly different than just described as they are characterized by a low level of statutory regulation. For extradition, procedures are mostly governed by treaties—if applicable—and the laws of the requested party. Dutch law itself is silent on the conditions upon which Dutch authorities may issue outgoing requests. There is consequently some controversy around the specific formalities and conditions that are applicable. The most heard position is that only the authorities

77

Kamerstukken II 2015/16, 34493, 3, p. 21. Art. 5.1.11. CCP. 79 Kamerstukken II 2015/16, 34493, 3, p. 23. 80 Art. 5.1.10. (3) CCP. 78

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that are competent for preliminary custodial measures in Dutch procedures are competent to initiate extradition procedures, under the same conditions as would have applied in comparable national cases.81 The point—which is particularly urgent under the European arrest warrant regime—is, however, that the Dutch internal rules not easily lend themselves to their analogous application in extradition cases. Internal Dutch procedures follow the logic that the more intrusive custodial measures are (particularly the longer they last), the ‘higher’ the competent authority (deputy prosecutor, prosecutor, investigative judge, court) must be. The length of extradition procedures is, however, a matter for the requested state. It is conceivable, therefore, that a simple order for arrest (aanhouding buiten heterdaad, Art. 54 CCP), ordered by a public prosecutor, is the underlying national title for the extradition request, de facto legitimizing a custodial measure of several months in the requested state (that state will, as a rule, not deal with the substantive merits of the request, its reasonableness, its proportionality, etc.). Procedures for transfers of execution to other states are found in the WOTS.82 As was indicated in the above, there has been criticism on the fact that there is no treaty requirement for transfers of execution to those states.83 That is because a treaty is still regarded as the ultimate expression of trust in a foreign legal order, which is reiterated by the fact that extradition (for execution purposes) to such legal orders does require a treaty base. That degree of trust also covers, particularly, the detention conditions in the other state. The question to which a treaty requirement is necessary correlates to a wellknown dilemma in transfer procedures. Whereas humanitarian conditions may call for a transfer to the Netherlands, considerations related to the rule of law and the Dutch order public may oppose such a transfer (particularly where there have been flagrant denials of justice in the sentencing state). The treaty requirement helps to protect those latter interests.84 Yet the same balancing exercise turns out differently in the case of outgoing transfers. Concerns on detention conditions may exist, but do not automatically block a transfer, in the interest of re-socialization. Solutions are then found in procedural guarantees. I agree with those authors stating that what may be criticized in the Netherlands is not so much the non-existence of the treaty requirement for outgoing transfers but the apparent inconsistency in the approach between incoming and outgoing transfers.85 What are these procedural guarantees? Dutch procedure prescribes that a public prosecutor may, in the interest of a proper administration of justice, issue duly motivated advice to the Minister to initiate a transfer procedure.86 The Minister

81

See in extenso Hirsch Ballin (2014), no. 3.2.1. Arts. 51 et seq. WOTS. 83 Supra note 39. 84 Those interests have been reiterated in a communication of the Dutch Minister of Justice, supra note 41. 85 Cf. Van der Wilt and Ouwerkerk (2014), no. 8.2. 86 Art. 51 (1) WOTS. See arts. 56-57 WOTS for foreign requests. 82

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(IOS) then decides as quickly as possible, taking account of the relevant treaty provisions (where applicable).87 Sentenced persons who are in the Netherlands and who have not (yet) agreed with the transfer must be informed in writing and be given 2 weeks to initiate a written appeal with the court that ultimately convicted him to the custodial sanction.88 The latter court then performs a marginal test of whether the decision of the Minster to initiate a transfer was reasonable in the light of the proper administration of justice.89 The sentenced person must be heard and, if necessary, be given legal counsel. If the court grants the appeal, the (intended) transfer cannot take place.90 In cases of a transfer, Article 59 WOTS contains a number of guarantees to be ascertained, such as the lex mitior principle, the deduction of any time already spent in detention in the Netherlands and, in cases of a non-voluntary transfer, the speciality principle. These provisions demonstrate that a number of procedural guarantees are in place. Obviously, further debate is possible in light of the content and scope of the central criterion (goede rechtsbedeling) and the fact that appeal is open only for Netherlands-based sentenced persons.91 Moreover, it must be noted that the right to appeal is not the same as the right to initiate an outgoing transfer. There is no such right,92 though it is always possible to launch civil procedures and try to obtain a court order obliging the Minister to launch a transfer procedure. Mutual legal assistance procedures are the area where the most significant changes took place. The revised procedures for MLA explicitly pay attention to the role of Dutch authorities as to the requesting party. In principle (unless the applicable treaties provide otherwise), the Ministry will be the competent authority.93 The request itself, however, is based on an underlying request of the prosecutor, investigative judge or court.94 The latter is to be read in conjunction with what is stipulated in Article 5.1.3 CCP; Dutch authorities can only request from their foreign colleagues what would have been within their range of competences in a similar national investigation or what could have been transmitted via the Police Data Act (Wet politiegegevens). A special provision is included for interviewing witnesses, experts or defendants by videoconference by the investigative judge or the court.95 The rationale of Article 5.1.3 CCP is, obviously, the prevention of silver platter situations.96 Yet the question is also whether the current provision will not be an

87

Art. 52 (1) WOTS. Special provisions for in absentia convictions in the Netherlands are found in arts. 54-55 WOTS. 89 Art. 52 (3) WOTS. 90 Art. 52 (5) WOTS. 91 Cf. Van der Wilt and Ouwerkerk (2014), no. 8.2. 92 Van der Wilt and Ouwerkerk (2014), no. 9. 93 Art. 5.1.2. (3) CCP. 94 Art. 5.1.2. (1) CCP. 95 Art. 5.1.3a. CCP. 96 Luchtman (2008), p. 150; Van Wijk (2017), p. 121 et seq.; Hirsch Ballin (2014), no 3.2.1. This ratio is also at the core of older cases, which have now been codified in Art. 5.1.3. CCP. 88

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unnecessary hurdle in certain cases,97 whereas it may not be apt to reach its goals in others. Different countries will, after all, regulate investigative techniques in different manners. Regarding the first point of criticism, the problem lies in the cumulative application of two sets of criminal procedures—those of the requesting state (Art. 5.1.3 CCP, in conjunction with the internal Dutch procedures) and those of the requested state, applying its lex loci—which may hamper enforcement too much. Provisions like these are, therefore, (only) particularly useful where materials could also have been obtained using the powers of Dutch criminal procedure.98 The question is, moreover, whether the current provision is still up to gear for presentday, often dynamic and multilateral transnational criminal investigations. That is the second point of criticism. The provision does not prevent cooperating authorities from coordinating their joint operations (also outside the setting of joint investigation teams) and from subsequently sharing the information, which was then officially obtained within the framework of the national procedures of the transmitting party (and not for MLA purposes). Such information is then already in possession of the requested party and can be transferred under a different set of rules (those for professional secrecy and the protection of personal data) than the ones that would have been applied had the information been gathered in the execution of an MLA request. Therefore, provisions like Art. 5.1.3 CPP only have their full protective effects in cases where one party helps another in proceedings, with which it has no further connections. The latter image is still the dominant frame,99 though it is certainly not always a fully satisfactory one.

6.1.2.3

Cooperation Within the European Union

There is no doubt that the specific setting of cooperation in criminal matters within the European Union has had a significant influence on the internal Dutch procedures. It is noteworthy that, in general, European cooperation is still viewed as a form of international cooperation.100 The European setting, however, did have the effect that the role of the Ministry has been significantly reduced or even abandoned. This goes, particularly, for surrender cases.

6.1.2.3.1

Surrender Proceedings: The European Arrest Warrant

The implementation of the European arrest warrant regime in the Surrender Act (SA, Overleveringswet), which is currently the subject of a ‘re-implementation’ of the

97

Reijntjes (2015), pp. 337–404. Hirsch Ballin (2014), no 3.2.1. 99 See Kamerstukken II 2015/16, 34493, 3, pp. 8–9. 100 Cf. Kamerstukken II 2002/03, 29042, 3, p. 5, discussed in extenso by Luchtman (2017) (inaugural lecture). 98

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Framework Decision (herimplementatie),101 has introduced a single-stage procedure for European arrest warrants. With a few exceptions, the procedure is entirely a judicial one, with a prominent role for the District Court of Amsterdam as the sole court in the Netherlands competent to deal with all incoming European arrest warrants and the Centre for International Legal Assistance in Criminal Matters of the Public Prosecutor’s Office of Amsterdam as its counterpart at the level of the Public Prosecution Service. There are no ordinary remedies, only the extraordinary cassatie in het belang der wet, which is launched by the Prosecutor General at the Supreme Court. It has in fact been used in some surrender cases.102 As in extradition cases, it is the prosecutor who initiates the surrender procedure before the court. He or she will also conduct a preliminary check of the European arrest warrant.103 The court must then decide within, in principle, 60 days after the arrest of the person claimed.104 An extension of this term of another 30 days is possible. After 90 days, the court must suspend the detention while taking measures to ensure that the person claimed does not escape justice (schorsing onder het stellen van voorwaarden).105 The latter legal provision has given rise to significant controversy in legal practice, particularly in cases where matters were referred to the Court of Justice or where that court has been asked to answer questions by other courts that are also relevant for the Dutch cases or where the issuing judicial authorities have been asked questions on the detention conditions in their state, in the wake of Aranyosi. The maximum detention term of 90 days proved to be far too strict in those cases. Consequently, the Amsterdam District Court and the Amsterdam Court of Appeal (who is competent for reviewing decisions on remand in custody) were more or less forced to stretch the interpretation of Article 22 (4) SA to the limits, and beyond. Partly because of their diverging approaches to the situation, this legal practice was found to be in violation of Article 6 of the EU Charter of Fundamental Rights (CFR), whereas the European Court of Justice also found the implementation of the relevant provisions of the Framework Decision in Article 22 (4) SA to be incorrect.106 Article 11 of the Dutch Surrender Act entails a general human rights exception,107 which has seldomly been used (except for some cases, in the early years of the system, of dealing with undue delays in the procedures of the issuing state) until the See Overheid.nl, ‘Herimplementatie kaderbesluit Europees aanhoudingsbevel’, 2019, https:// wetgevingskalender.overheid.nl/Regeling/WGK009492, (Accessed 29 January 2020). 102 For examples, see Supreme Court of the Netherlands, judgment of 28 November 2006, ECLI: NL:HR:2006:AY6631; Supreme Court of the Netherlands, judgment of 18 March 2014, ECLI:NL: HR:2014:650. 103 Art. 23 (2) SA. 104 See art. 22 SA. 105 Art. 22 (4) SA. 106 European Court of Justice (CJEU), judgment of 12 February 2019, Case C-492/18 PPU (TC). 107 It reads in (unofficial) translation: ‘Surrender shall not be allowed in cases in which, in the opinion of the court, there is justified suspicion, based on facts and circumstances, that granting the request would lead to flagrant breach of the fundamental rights of the person concerned, as 101

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Aranyosi saga and, subsequently, the European Court of Justice’s ruling in LM.108 Detention conditions and the rule of law are prominently on the agenda since then. All of these issues are within the exclusive competence of the district court or, in some cases, the prosecution service.109 Hence, there is no role for the Minster anymore, regardless of the (future or past) fundamental rights violation at stake. What does complicate matters, however, is another wrongful implementation of the Framework Decision in the Dutch Surrender Act.110 Article 6 of the act prohibits the surrender of Dutch nationals (and aliens with a residence permit for an indefinite time, including EU citizens)111 for execution purposes while simultaneously obliging the prosecutor to inform the issuing judicial authority of the willingness to take over the execution of the judgment.112 For most EU countries (save for those who did not yet implement Framework Decision 2008/909/JHA,113 such as Bulgaria), the latter procedure takes place, per 1 November 2012, on the basis of the Mutual Acknowledgement and Execution of Detention and Probational Sanctions Act (Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties (WETS)).114 That law also applies to surrender procedures of Dutch nationals. The problem in those cases is that the transfer decision is taken by different authorities under different conditions, including a full double criminality test, and at a later stage.115 As neither the District Court of Amsterdam nor the prosecutor’s service can consequently guarantee a transfer to the Netherlands, there

guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms concluded in Rome on 4 November 1950.’ 108 The latter ruling has not (yet) brought the Amsterdam Court to refrain from surrender. The most relevant rulings to this date are: District Court Amsterdam, judgment of 4 October 2018 ECLI:NL: RBAMS:2018:7032 (District Court takes the first step of the LM-test); District Court Amsterdam, judgment of 18 January 2019, ECLI:NL:RBAMS:2019:393 (Extension of the LM-test to execution-European arrest warrants for convictions later then Autumn 2017); District Court Amsterdam, judgment of 27 September 2019, ECLI:NL:RBAMS:2019:7161 (Having established structural deficiencies in the Polish judiciary at the first two levels of the LM-test, the Court announces to focus on the third step of the LM-test from now on, save for new circumstances); District Court Amsterdam, judgment of 16 January 2020, ECLI:NL:RBAMS:2020:184 (The fact that Polish authorities do not respond to the Court’s questions, does not lift the requested person’s responsibility to demonstrate that (s)he did not receive a fair trial. The wording of the ruling also seems to cover European arrest warrants for prosecution purposes). 109 For an example of the latter, see Art. 35 (3) EA (postponement in cases of ‘hardship’). 110 See CJEU, judgment of 29 June 2017, Case C-579/15 (Popławski). 111 See Art. 6(5) SA. 112 CJEU, judgment of 25 July 2018, Case C-216/18 PPU (LM). 113 Council Framework Decision 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 for the purpose of their enforcement in the European Union [2008] OJ L327/27. 114 See also Dienst Justitiële Inrichtingen, ‘Fact sheet for foreign prisoners in the Netherlands (from an EU country): WETS’, March 2013, https://www.dji.nl/binaries/fact-sheet-for-foreign-prisonersin-the-netherlands-(from-an-eu-country)_tcm41-120875.pdf, (Accessed: 21 June 2019). 115 See Art. 2:11 (1)(f) WETS.

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is a risk of impunity. The first Popławski judgment has learned that it is not allowed to refuse the surrender of persons like Popławski to Poland without simultaneously providing for a guarantee that the execution of the sentence is taken over.116 That was why the Amsterdam Court subsequently asked the EU Court of Justice, in short, whether it would be possible to disapply the relevant provision of the Surrender Act and thus to facilitate the transfer of the person claimed to Poland.117 The latter court has meanwhile answered this question in the negative.118 In response to this, the Amsterdam District Court has now refined its case law, ruling that—under both new119 and old transfer regimes120—it is possible for the District Court, after having performed a prospective analysis of the relevant WOTS/WETS provisions, to refuse the surrender of persons like Popławski because that court must assume as follows: – The competent Dutch authorities in the subsequent transfer procedures (including the Minister) will comply with their obligation to interpret national law in conformity with EU law. – And the public prosecutor—who, as the competent Dutch authority, is also subject to that obligation—will notify the issuing judicial authority and the Minister that the Netherlands can and must take over the execution of the sentence and will do whatever is necessary to meet that obligation. Finally, one important remark must be made with respect to outgoing European arrest warrants. In the Netherlands, the issuing authority has always been the public prosecutor (Art. 44 SA). However, as the Ministry of Justice and Security is competent to give instructions to prosecutors,121 Dutch prosecutors may not meet the requirements of independence put forward in the European Court of Justice’s recent case law,122 certainly in cases where they are also responsible for the national title for arrest. The legislator decided not to wait for further case law123 and to intervene. The Surrender Act now designates the investigative judge to be the competent issuing authority in the Netherlands.124 In light of the intrusiveness of the coercive measures that are usually applied in surrender procedures, it is

116

See CJEU, judgment of 29 June 2017, Case C-579/15 (Popławski). The case deals with the situation prior to implementation of Framework Decision 2008/909, under the regime of the WOTS. An additional hurdle then exists because of the aforementioned Treaty requirement. 118 CJEU, judgment of 24 June 2019, Case C-573/17 (Popławski II). 119 For the WETS, see District Court Amsterdam, judgment of 17 October 2019, ECLI:NL: RBAMS:2019:7754. 120 For the WOTS, see District Court Amsterdam, judgment of 26 September 2019, ECLI:NL: RBAMS:2019:7104 (Popławski). 121 Art. 127 of the Act on the Judicial Organization (Wet op de rechterlijke organisatie). 122 Cf. CJEU, judgment of 27 May 2019, Case C-509/18 (PF); CJEU, judgment of 27 May 2019, Joined Cases C-508/18 and C-82/19 PPU (OG and PI). 123 CJEU, judgments of 12 December 2019, Case C-627/19 PPU, (Procureur du Roi de Bruxelles) and C-625/19 PPU (Parquet Suède). 124 See Stb. 2019, 259.; Kamerstukken II 2018/19 35224, nos. 1–3. 117

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noteworthy that there are no further conditions inserted in the law. It is a striking difference with the implementation of the European investigation order (discussed below), where statutory conditions for issuing a European investigation order are much stricter.

6.1.2.3.2

Transfer of Execution of Custodial Sentences

In addition to offering a framework for the transfer of Dutch nationals in surrender proceedings, the aforementioned WETS serve as the implementation act of Framework Decision 2008/909. It applies to (almost) all EU Member States; for all other countries, the WOTS (and the applicable international treaties) continue to apply. WETS procedures are different from surrender procedures and follow more or less the traditional route.125 From an internal Dutch perspective, this also makes sense as the Minister of Justice and Security (and no longer the public prosecution service) has recently been made responsible for the execution of (custodial) sanctions.126 Yet in light of the principle of mutual recognition of judicial decisions, further questions to the Court of Justice are likely to follow in light of its recent judgments.127 Be that as it may, Dutch law marks the Minister as the competent authority for the recognition of foreign judicial decisions with a view to their enforcement in the Netherlands and vice versa.128 As is the case under the international law regime, a transfer in principle requires the consent of both the Minster and the sentenced person.129 The latter requirement does not go for those who are Dutch citizens and live in the Netherlands (and certain other categories).130 Where there is a demonstrable and sufficient connection to the Netherlands, the Minister may, also at the request of the sentenced person, request or consent to the transfer of the foreign judicial decision to the Netherlands with a view to its recognition and execution.131 Again, this is not a right for the sentenced person. The procedure to be followed is similar to the continued enforcement procedure under the WOTS. It means that, upon a preliminary check of all documents (including the underlying court conviction),132 the Minister will forward the file to the See Custodial Institutions Agency, ‘The Mutual Acknowledgement and Execution of the Transfer of Sentences Act (WETS)’, November 2016, https://www.dji.nl/binaries/Factsheet_WETS_ENG_ nov%202016%20def_tcm41-120876.pdf, (Accessed: 24 June 2019). 126 See the recent Wet herziening tenuitvoerlegging strafrechtelijke beslissingen, Stb. 2017, 82. 127 The question, of course, is what consequences the rulings of the court, mentioned in note 122, will have, particularly where the sentenced person does not consent. To what extent can executive bodies—in light of the principle of mutual recognition of judicial decisions—be trusted with such a fundamental element of the administration of justice? 128 Art. 2:1 WETS; art. 2:7 WETS. 129 Art. 2:3 WETS. 130 Arts. 2:4 and 2:5 WETS. 131 Art. 2:6 WETS. 132 See art. 2:8 WETS. 125

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Advocate General at the Arnhem-Leeuwarden Court of Appeal with a view to obtaining the advice of that court.133 The Minister then decides on the recognition of the foreign judgment, taking account of the court’s opinion. The Minister is bound by the court’s opinion on the imperative refusal grounds of Article 2:13 WETS (including double criminality) but has full discretion on the optional, discretionary refusal grounds of Article 2:14 WETS, which are not assessed by the court (e.g. the territoriality exception).134 Sentenced persons, present in the Netherlands, will be informed.135 It is noteworthy that the Netherlands has included in Article 2:11 (5) WETS a special procedure for transfers of Dutch nationals after surrender procedures. In clear contradiction to Framework Decision 2008/909, Dutch courts retain the possibility to adjust the sentence to Dutch standards yet, to the largest extent possible, also taking account of the standards of the issuing state. As regards the outgoing transfers, the conditions and procedures mirror the recognition of judgments by the Netherlands.136 The Minister is the competent authority. There is no statutory right for sentenced persons to initiate transfer proceedings,137 but the sentenced person is in principle offered the possibility to give his or her views on an intended transfer in advance.138 An appeal against the intended transfer is possible within 14 days after notification at the Court of Appeal of Arnhem-Leeuwarden.139 The court will then assess whether the intended decision of the Minister has been reasonable. No ordinary appeal is open.

6.1.2.3.3

The European Investigation Order

Procedures with respect to incoming and outgoing European investigation orders have been implemented in the Code of Criminal Procedure.140 The European investigation order is an order for the execution of certain investigative measures, including materials already available to the executing authorities. Unlike the traditional MLA procedure discussed in the above, it is an entirely judicial procedure in the wide sense of the word: the competent authority is the public prosecutor.141 He or

133

Art. 2:11 WETS. The assessment performed by that court is the same as under the WOTS. Kamerstukken I 2011/12, 32885, C, p. 10. 135 Art. 2:9 WETS. 136 See also Dienst Justitiële Inrichtingen, ‘Fact sheet for foreign prisoners in the Netherlands (from an EU country): WETS’, March 2013, https://www.dji.nl/binaries/fact-sheet-for-foreign-prisonersin-the-netherlands-(from-an-eu-country)_tcm41-120875.pdf (Accessed: 24 June 2019). 137 Civil procedures are conceivable, of course. 138 Art. 2:27 WETS. This is different where that person does not reside in the Netherlands or him-/ herself has requested the transfer; art. 2:27 (2) WETS. 139 Art. 2:27 (3-8) WETS. 140 Stb. 2017, 231. 141 Art. 5.4.2. CCP. 134

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she has exclusive competence over the granting decision and over its execution. The granting stage lasts 60 days at most, the stage of execution in principle 90 days or, if this is not possible, within another appropriate scheme as agreed upon with the issuing authority (passend tijdschema).142 There are some actions for which the intervention of the examining magistrate is necessary.143 That is the case, particularly, where investigative measures need his prior authorization or where the law attributes powers only to him. In those cases, the prosecutor will hand over the European investigation order. There is also the possibility of a complaint, before the actual transfer of the results to the executing authority, under the same conditions as the complaint procedure in MLA cases.144 In order to enable the person concerned to issue such a complaint, a notification will usually be sent out, and the transfer will be postponed for two weeks.145 If a complaint is filed, the transfer will take place only after there has been a final decision on it.146 Under certain circumstances, if this is necessary for the proper cause of the investigation or for the protection of the rights of individuals, a provisional transfer may be allowed unless that would cause irreparable damage to the interests of the persons concerned.147 The European investigation order complaint procedure deviates from its MLA counterpart in one important aspect. There is no judicial procedure to grant leave to transfer objects, documents or data to the requesting party (verlofprocedure) where the interests of the investigations require their secrecy. In those circumstances, therefore, a complaint procedure is not possible, but neither is this lack of legal protection compensated by a judicial leave to transfer. This was considered to be justified in view of the principle of mutual recognition and the high degree of trust among EU states.148 Yet, obviously, that is an unconvincing argument, precisely because the leave procedure deals with the actions of the executing Dutch authorities; it is unlikely—even at odds with the principle of mutual recognition—that the lawfulness of the execution of investigative measures in the Netherlands will be assessed in another state. Provisions for the Netherlands as the issuing state are found in Art. 5.4.21 et seq. CCP. Competent authorities are the prosecutor and the investigating judge or the courts. As is the case with the corresponding MLA procedures, the legal provisions ensure a proportionality check and mechanisms to prevent a bypass of the procedural safeguards that would have applied in purely national cases.149

142

Art. 5.4.5. CCP. Specific provisions for, for instance, videoconferences are found in Art. 5.4.13. CCP, and the interception of telecommunications. 144 Art. 5.4.10. CCP. 145 Kamerstukken II 2016/17, 34611, 3, p. 12. 146 Art. 5.4.9. (1) CCP. 147 Art. 5.4.9. (3) CCP. 148 Kamerstukken II 2016/17, 34611, 3, p. 12. 149 Art. 5.4.21. (2) CCP. 143

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6.1.2.4

209

Remedies Against the Granting Decision

The issue of who can challenge the final decision granting or not granting a request for cooperation has been discussed in the above. It depends on the specific type of cooperation, as well as the international or EU setting. Within the setting of international assistance, the dichotomy between the granting and execution stages is clearly discernable in extradition and transfer proceedings (at least in the exequatur procedures). In both types of procedures, the district courts act as authorizing bodies. An appeal on legal grounds (cassatie) is open to their decisions on the admissibility of extradition,150 respectively granting leave for execution.151 The remedy is open to the person claimed/sentenced person, as well as the prosecution. Moreover, as also indicated in the above, the subsequent decisions of the Minister— particularly relevant in extradition procedures—can lead to civil injunction procedures. With respect to MLA procedures, the granting and execution stages are clearly more integrated. Though it will formally be the Minister who is the competent authority, legal practice shows a strong role for the prosecutor. Legal remedies are available at the end of the procedure and have been retained under the recently revised internal MLA rules, precisely because of the fact that foreign courts may not be willing to investigate the legality of Dutch MLA procedures. As was mentioned in the above, a complaint procedure (beklag) is open—save for cases where the secrecy of investigations requires otherwise—for, inter alia, persons whose objects or data were seized or who were confronted with the recording of data during (digital) searches or with decryption, preservation or restriction orders with respect to data.152 In those cases, the actual transfer of the objects and data will be postponed for 2 weeks, to allow that person to file a complaint. The competent court will then assess the relevant treaty and statutory conditions with respect to the granting decision and the execution of the request. That court is also allowed to—somewhat cryptical—assess ‘the potential consequences of a transfer to foreign authorities’.153 Meanwhile, no data, documents or objects are to be transferred before the expiration of the said 2-week term or, in the case of a complaint, the decision on that complaint has become final. There is the possibility of an appeal on legal grounds (cassatie). For EU cooperation, the situation has changed most dramatically for surrender procedures. Dutch surrender procedures are a single-stage procedure, with an exclusive role for the Amsterdam district court. An appeal on legal grounds (cassatie) is no longer possible, and there is no formal role for the Minister anymore. Only the extraordinary cassatie in het belang der wet is a possibility (but not open to persons claimed or the prosecutor as such). With respect to European investigation order procedures, the most significant change has been the abolition of the so-called verlof

150

Art. 31 EA. Art. 32 WOTS. 152 Art. 5.1.11. CCP. 153 Kamerstukken II 2015/16, 34493, 3, p. 23. 151

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procedure in cases where the secrecy of investigations hinders the notification of those concerned. Finally, with respect to transfer procedures, continued enforcement has become the default procedure, with a specific role for the penitentiary chamber of the Arnhem-Leeuwarden Court of Appeal, against which no legal remedies are open.

6.2

Subject Matter of Judicial Control

6.2.1

The General Framework of International Cooperation in Criminal Matters

6.2.1.1

International and Internal Dimension of the Granting Decision

Roughly speaking, in extradition procedures, courts (or other bodies in the administration of criminal justice) deal with the application of the powers of criminal procedure, whereas it will be the Minister who is dealing with issues of policy or with the assessment of the factual situation in another state.154 Courts only deal with what can be established on the basis of the extradition request and without further extensive examinations. What belongs to the realm of the extradition judge and what to that of the Minister has been the subject of extensive case law, particularly when it comes to the protection of fundamental rights (see above). Because of Articles 93 and 94 of the Constitution and of the direct effects of human rights treaties in the Dutch legal order, a full judicial review will always be available, either by the extradition court or by the civil courts.155 In transfer procedures, the courts assess the legal conditions for a transfer (and commute the sentence), whereas the executive assesses the policy issues and appropriateness of such a transfer (sufficiently strong ties to the Netherlands etc.). Human rights issues mainly fall to the courts in exequatur procedures.156 Once they have granted leave for execution, the Minister is bound by it.157 The remedy available against the decisions of the Minister is a civil injunction procedure. Given the marginal review exercised by civil courts in those cases and the aforementioned158 policy documents in which the Netherlands government has laid down the applicable policies and criteria for a transfer to the Netherlands, the chances of success are not very high where one does not fall within these policy parameters. For MLA procedures, the institutional landscape has changed considerably lately. In principle—where a treaty does not provide otherwise— it is the Minister who

154

Supra note 25. Supra note 5. 156 As indicated in the above, this issue falls to the Minister in continued enforcement procedures. 157 Sanders (2015), p. 436. 158 Supra note 41. 155

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decides on the granting elements,159 after which the request is then put in the hands of, in principle, the prosecution service. Noteworthy is the change in position of the leave to transfer procedure, which was previously a time-consuming, mandatory check at the end of any MLA procedure but which has now become an alternative to the complaint procedure, in cases where intrusive techniques have been used and the secrecy of investigations prohibits their disclosure to persons concerned.

6.2.1.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

Dutch authorities will, in principle, not enter into an assessment of the actions of foreign authorities. This is, in cases of extradition and transfer of sentences, because of the treaty requirement. In MLA cases, the Supreme Court has also consistently held that where requests are based on a treaty, the assessment of the degree of suspicion160 or the subsidiarity or proportionality of foreign requests is not for the Dutch authorities.161 Only substantive impediments (belemmeringen van wezenlijke aard), as defined by the treaty or statutory law, or the fundamental principles of criminal procedure can block the assistance.162 This is different in cases where MLA is requested by a state with which no treaty relationship exists, as indicated in the above. This mitigation was inserted to ensure workable relationships with those countries. However, in those cases, the strict standard of a flagrant denial of justice is also not applicable per se.163 In extradition procedures, another (very limited) exception to this strict rule of non-inquiry is a plea of innocence.164 Such a plea only succeeds when it can be demonstrated without further delay, on the basis of the dossier and without further investigations.165 The same standard applies in surrender procedures. The reason behind this approach is the ambition to facilitate smooth and speedy international cooperation as much as possible. A strict rule of non-inquiry (vertrouwensregel) facilitates this, while it simultaneously has removed fundamental rights considerations from the judicial equation, save for exceptional circumstances. That reasoning goes particularly for treaty-based requests. The presence of such a treaty, after all, presupposes that (a) the Netherlands, as a party state to the ECHR and ICCPR, has duly assessed, before entering into the treaty, that (b) the legal

159

Supra note 64. Cf. Supreme Court of the Netherlands, judgment of 21 December 2007, ECLI:NL:HR:2007: BB5359. 161 Cf. Supreme Court of the Netherlands, judgment of 22 May 2012, ECLI:NL:HR:2012:BV9212. 162 A likely example is the violation of legal professional privilege. 163 Supra note 66 and 68. 164 Cf. Supreme Court of the Netherlands, judgment of 19 March 2002, ECLI:NL:HR:2002: ZD2927. 165 Art. 28 (2) EA. See further Glerum and Rozemond (2015), pp. 211–212. 160

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system of the prospected partner state meets all of the relevant fundamental rights standards. Moreover, a continuation of that relationship shows that the underlying reasons for it are still present.166 Under those circumstances, there is no additional task for the judiciary. By consequence, Dutch courts are not allowed to take up these issues, except when there is a risk for a flagrant denial of justice (Art. 6 ECHR) and after it has been established, on the basis of a sufficiently substantiated argument, that remedies are not present in the requesting state.167 It is not possible to lodge a legal remedy against the foreign request with a Dutch court, which triggers judicial review in the requesting state. The same goes with respect to a review of the lawfulness of the actions on which a foreign request is based. Where those actions were carried out by foreign authorities, they are not subjected to a review or test by Dutch authorities.168 The Supreme Court has even held that alleged irregularities, committed by Dutch authorities in the framework of preceding MLA procedures in the same case, cannot be assessed within the framework of subsequent extradition procedures.169 In a similar vein, in a case where US authorities acted on Dutch(-Antilles) territory without the knowledge of the local authorities and in violation of the lex loci, the Supreme Court held that the extradition court is not allowed to assess the legality of evidence gathering (let alone to refuse extradition on that basis) with a view to the criminal case in the requesting state.170

6.2.1.3

6.2.1.3.1

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance Remedies with Respect to Irregularities in the (Issuing of the) Request

There are a number of ways of redressing irregularities concerning the issuing of a request or its execution in the requested state. Parties concerned may, on the one hand, try to prevent Dutch authorities from issuing such a request via a complaint procedure (Art. 552a CCP), where applicable,171 or via civil procedures. The other option is during the later trial procedures (for instance via a plea to exclude evidence) 166

Supreme Court of the Netherlands, judgment of 7 September 2004, ECLI:NL:HR:2004:AP1534, para 3.4.2. 167 Supreme Court of the Netherlands, judgment of 7 September 2004, ECLI:NL:HR:2004:AP1534. 168 Cf. Supreme Court of the Netherlands, judgment of 7 September 2004, ECLI:NL:HR:2004: AP1534, para 3.4.3. 169 Cf. Supreme Court of the Netherlands, judgment of 10 July 2001, ECLI:NL:HR:2001:AB3324. This is different in cases where a person claimed risks a flagrant denial of justice in the requesting state as a result of his extradition, Supreme Court of the Netherlands, judgment of 7 September 2004, ECLI:NL:HR:2004:AP1534, para 3.4.3. 170 Supreme Court of the Netherlands, judgment of 9 December 2014, ECLI:NL:HR:2014:3540. 171 Cf. Kamerstukken II 2016/17, 34 611, nr. 3, p. 13 (European investigation order).

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or, possibly, in procedures for the compensation of damages as a result of unlawful acts/tort (onrechtmatige daad).172 With respect to the issuing of requests, irregularities may relate, for instance, to the circumvention of Dutch rules of procedure—an issue that was discussed in the above with respect to MLA procedures173— or to the responsibility of the Dutch state not to trigger criminal proceedings in another state because of human rights concerns. Irregularities may also relate to flaws in the request itself.174 The latter situation occurred in a criminal case where the Dutch fiscal police allegedly misled Swiss authorities by (a) combining two different cases—one a stock exchange fraud, the other involving money laundering for drug offences—in two MLA requests to the Swiss authorities (one for interrogations, the other for searches) while (b) adding information on the presumed laundering of drug-related proceeds in the German version of the request (relevant only to a case against another person mentioned in the request). This information, however, was not included in the Dutch version of the request. As a result of the information received, the later defendant caught the attention of the Dutch authorities. In the later criminal case against him for stock exchange fraud, lower courts consequently ruled the case of the Public Prosecution Service inadmissible because of the misleading information in the request. The Supreme Court, however, quashed those judgements because of contradictory findings in the reasoning of the Court of Appeal.175 What appears to be particularly important for the Supreme Court in its assessment of whether there must be consequences (exclusion of evidence, for instance) in cases like these is whether the interests of the defendant were harmed by this (Schutznorm), whether there was the intention to mislead on behalf of the authorities176 and, so it appears, whether it is clear (in the subsequent Dutch proceedings) that the requested party indeed provided unlawful assistance because of the incorrect information.177 Obviously, in situations like these, one may also try to persuade the requested authorities or courts in that state to take a stance on the impact of the incorrect information on the granting and execution of the request.178 The question, however, is to what extent they will be willing to hear such a case. Presumably, the latter will only be so when it has been previously established by a Dutch authority that there have indeed been irregularities in or prior to the Dutch request. The latter

172

Hirsch Ballin (2014), no. 5.1., referring to District Court The Hague, judgment of 18 December 2013, ECLI:NL:RBDHA:2013:19090. 173 Supra note 96. 174 Hirsch Ballin (2014), no. 3.2. 175 Supreme Court of the Netherlands, judgment of 7 December 2004, ECLI:NL:HR:2004:AP8439. 176 Hirsch Ballin (2014), no. 3.2.2. 177 Cf. Supreme Court of the Netherlands, judgment of 26 March 2019, ECLI:NL:HR:2019:425. 178 As suggested by the Advocate General in his opinion to the case, mentioned in the previous footnote, ECLI:NLPHR:2019:79.

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must be done, depending on the requested measure, via a complaint procedure in the Netherlands (beklag)179 or via civil procedures. There have also been cases where individuals have tried to stop the initiation of MLA proceedings because of concerns that those requests would trigger proceedings in the requested state. It has indeed been recognized in parliamentary records that there is a duty upon Dutch authorities not to trigger criminal proceedings in countries with questionable human rights standards through, for instance, an MLA or extradition request.180 Assuming that the interests of the investigation do not impede notification of the person concerned, the latter person has the option of starting civil procedures. As was noted before, civil law’s scope of review is, however limited. Interesting in this respect is the case of Van Laarhoven, in which the Public Prosecution Service (OM), the Ministry of Justice and Security and the Dutch police received fierce criticism—inter alia from the Dutch Parliament and the Dutch Nationale ombudsman181—for their actions in the criminal investigations against a Dutch coffee shop owner residing in Thailand and under investigation for, inter alia, large-scale trade in soft drugs and money laundering. After it appeared that the Thai authorities would not (timely) comply with the execution of the Dutch MLA request, the Dutch prosecutor sent an additional letter to the Thai authorities, in July 2014, suggesting them to start their own criminal investigation. In addition, the wife of the applicant, who was mentioned as a witness in the request for mutual assistance and who was not the subject of a criminal investigation in the Netherlands, was now also mentioned as a suspect. Both were subsequently arrested and sentenced to years of imprisonment in Thailand. It is striking to note that the actions of the Dutch authorities were not qualified as unlawful by the civil courts during injunction procedures to order the Dutch state to, inter alia, start extradition procedures from Thailand to the Netherlands.182 Only after the Thai criminal case became final were the Dutch authorities able to start (WOTS) transfer proceedings. Van Laarhoven has recently been brought to the Netherlands; his wife—a Thai citizen—still remains in detention in Thailand. As said in the above, the affair led the Minister to refine and reiterate the division of labour of all Dutch actors involved in MLA procedures.183

179

Cf. Supreme Court of the Netherlands, judgment of 3 June 2008, ECLI:NL:HR:2008:BC9015. The question is to which extent the complaint judge (beklagrechter) will assess any potential irregularities. That is not certain yet. A catch-22-situation may occur. 180 Kamerstukken II 2016/17, 34493, nr 6, p. 13. 181 See Nationale ombudsman, ‘2019/014 OM, Justitie en Veiligheid en politie onzorgvuldig na indienen rechtshulpverzoek aan Thailand’, 11 maart 2019, https://www.nationaleombudsman.nl/ nieuws/rapporten/2019014, (accessed 29 January 2020), as well as the reaction by the Minister in Kamerstukken II, 2018/19, 30010, nr. 42. 182 See District Court The Hague, judgment of 16 December 2014, ECLI:NL:RBDHA:2014:15729, confirmed in The Hague Court of Appeal, judgment of 23 June 2015, ECLI:NL: GHDHA:2015:1593. 183 Supra note 14.

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6.2.1.3.2

215

Remedies After the Execution of a Request

Defences with respect to alleged irregularities during the execution of a request (or the subsequent transfer of materials) regularly show up in Dutch cases. Where these defences relate to the actions of foreign authorities, the Supreme Court has introduced a strict rule of non-inquiry.184 In the court’s case law, it is relevant, first of all, to determine whether the other state is a party to the ECHR. Human rights and the rule of non-inquiry are therefore strongly related, as noted in the above.185 Second, the issue is whether the actions took place under the responsibility of the Dutch or foreign authorities. In the latter type of situation, any defence with respect to violations of foreign law or Article 8 ECHR will not be heard by Dutch courts. Remedies must be sought after in the other state.186 It may even be so—this is not entirely clear yet—that where the requested or executing state has formally established a violation of its laws in the execution of a request, such formal declaration of unlawfulness will not lead to some sort of compensation (e.g. exclusion of evidence) in the Dutch criminal procedure. The (open) question is, of course, to which extent such an approach would be, in the EU setting, compatible with Article 14 (7) of the European investigation order Directive. The legislator held, unconvincingly and without further motivation, that there was no need to implement such section as its contents would already follow from the general principles of criminal procedure (algemene beginselen strafprocesrecht).187 It will be interesting to see what the approach of the Court of Justice will be when asked to interpret Article 14 (7) of the European investigation order Directive. With respect to violations of Article 6 ECHR, the Supreme Court has ruled that the Netherlands is fully responsible for the use of the materials as evidence in criminal procedures. This wording seems to suggest that there is no such responsibility with respect to the gathering of materials in violation of Article 6 ECHR, assuming that such a violation does not render the proceedings unfair as a whole. The question is to which extent this rule—established before Stojkovic v. France and Belgium188—is still entirely good law. From the latter judgment, it can, after all, be deduced that MLA requests are certainly capable of invoking the requesting state’s responsibility under Article 6 ECHR during the execution of MLA requests. Mitigation of this strict rule may occur, incidentally, where criminal investigations involve a transfer from foreign to Dutch criminal investigations. This is a situation that is likely to happen ever more frequently, particularly within the EU. It occurred in a case involving German undercover agents, which started in Germany

184

The most important judgment is Supreme Court of the Netherlands, judgment of 5 October 2010, ECLI:NL:HR:2010:BL5629. 185 Idem, Hirsch Ballin (2014), no. 4.2. 186 This may be different for violations of, for instance, Art. 3 ECHR. 187 Kamerstukken II 2016/17, 34611, 3, p. 25. 188 ECtHR, judgment of 27 October 2011, Application no. 25303/08 (Stojkovic v. France and Belgium).

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but was later taken over by the Dutch authorities.189 The undercover operation was subsequently led by Dutch authorities. The trial also took place in the Netherlands, according to Dutch law. The Court of Appeal had serious doubts as to the proportionality and subsidiarity of the measures in the early stages of the German procedures and their compliance with (the principles of the) Dutch prosecutorial guidelines on undercover operations. As such, the court did not refrain from testing the actions of the German authorities before the transfer. The rule of non-inquiry was therefore not applied here. However, as it considered that the Dutch prosecution service would not be able to produce the relevant information, it declared the case of prosecution inadmissible. The Supreme Court quashed this decision because the prosecution service had indicated that the German officers were willing to testify in court.190 Similar to the Court of Appeal, the Supreme Court, therefore, saw no reason to apply the rule of non-inquiry because of the specifics of the case at hand. Obviously, in those cases where Dutch authorities act abroad and apply powers of criminal procedure—via Article 539a et seq. CCP—there is no reason not to apply Dutch law. Potential violations of another state’s sovereignty will, however, not be heard in the criminal case against the defendant (Schutznorm).191 Moreover, though the Supreme Court refers explicitly to ECHR signatory states, it is likely that Dutch courts will apply similar logic in other cases, certainly when those states are—as is the Netherlands—a party to the ICCPR and the assistance provided was treaty based.192 For other states, of course, the presence of an effective remedy is not always guaranteed, and additional scrutiny of the Dutch courts may be warranted. This will require, however, a substantiated argument by the defence.193

6.2.1.3.3

Remedies in Case Dutch Authorities Do Not Issue a Request

As is widely recognized in international law, individuals do not have standing in interstate relations.194 That means that their only option is to request—if necessary force—judicial authorities to issue requests on their behalf. Within the framework of MLA (and European investigation order) procedures, there is the possibility for the defendant and his or her counsel to ask the investigating judge to perform investigative measures, including the issuing of a request to foreign authorities.195 Should

189

Supreme Court of the Netherlands, judgment of 8 February 2000, ECLI:NL:HR:2000:ZD1780. Another example is offered by Supreme Court of the Netherlands, judgment of 16 November 1999, ECLI:NL:HR:1999:ZD1451 (criminal investigations started on the basis of a tip from UK authorities). 190 Supreme Court of the Netherlands, judgment of 8 February 2000, ECLI:NL:HR:2000:ZD1780. 191 Supreme Court of the Netherlands, judgment of 5 October 2010, ECLI:NL:HR:2010:BL5629. 192 Idem, Hirsch Ballin (2014), no. 4.3. 193 Hirsch Ballin (2014), no. 4.3. 194 See, in extenso, Van Wijk (2017), p. 123 et seq. 195 See art. 182 CCP; Kamerstukken II 2016/17, 34611, 3, p. 5.

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such a request be denied, the defendant and his/her counsel may appeal to the court (bezwaarschrift) via a so-called raadkamer procedure.196 The investigating judge will turn down that request (only) when it cannot (reasonably) contribute to any decision in the criminal proceedings.197 Where specific remedies are absent, the decision not to initiate a (mutual legal assistance or extradition) request is subject to judicial review in the form of civil procedures. The scope of review of the Dutch civil courts is, however, limited to a marginal test of reasonableness. That goes particularly where requests interfere with the wide degree of discretion that the prosecution service has when it comes to prosecutorial decisions (including, for instance, the decision to commence proceedings in the Netherlands instead of somewhere else).198

6.2.1.4

Extraterritorial Operations

There are some cases in which the lawfulness of the actions of foreign agents have been put to the test in Dutch criminal procedures. They mostly concern undercover agents operating as undercover on Dutch soil. Though there have been repeatedly made allegations that in some cases these actions took place without the knowledge of Dutch authorities, there is hardly any case law on this. Dutch criminal procedure does foresee the possibility of foreign agents operating in the Netherlands, but under a number of binding conditions, which are to be agreed upon in advance. These include the application of Dutch law, the formal responsibility of Dutch authorities and also the duty to appear as a witness in court when summoned.199 For Dutch courts, the dominant issue is whether or not those agents acted under the formal responsibility of the Dutch authorities.200 If so, their actions are (also) assessed in light of Dutch law. If irregularities are established, the determination of the consequences, if any, goes along the lines of Dutch criminal procedure.201 When foreign agents disregard the instructions of the Dutch authorities, this is likely to have consequences for the criminal case in the Netherlands and may lead, in extreme cases, to the Public Prosecution Service losing its right to prosecute.202 196

Art. 182 (6) CCP. Kamerstukken II 2009/10, 32177, 3, p. 16. 198 See District Court’s-Gravenhage, judgment of 18 December 2009, ECLI:NL:RBSGR:2009: BK7001, in which complainant requested the issuing of a Dutch European arrest warrant with a view to prosecution in the Netherlands (instead of Argentina). The claim was denied. 199 See, for instance, Art. 126i (4) CCP (pseudo-koop). Further requirements are set out in arts. 9 and 10 of the Samenwerkingsbesluit bijzondere opsporingsbevoegdheden 2019, Stb. 2018, 448. 200 Cf. Supreme Court of the Netherlands, judgment of 8 February 2000, ECLI:NL:HR:2000: ZD1780. 201 See, in particular, Art. 359a CPP, which has generated a lot of case law. 202 See for instance District Court Amsterdam, judgment of 27 April 2007, ECLI:NL: RBAMS:2007:BA4017. 197

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The Framework of Cooperation Within the EU

National law does not make a real difference with respect to the issues that have been addressed here.203 It makes sense to assume that within the EU, the aforementioned considerations with respect to the rule of non-inquiry apply even stronger on the basis of the principle of mutual trust and the principle of mutual recognition.204 The organizational set-up has, of course, changed significantly in the EU setting, but this was addressed already in the previous section.

6.3 6.3.1

Scope of Judicial Protection and Applicable Legal Standards Judicial Protection and Applicable Standards in the Requested State

As a monist legal system, the standards for review are in principle Dutch law and self-executing (een ieder verbindende bepalingen) treaty provisions.205 ECHR provisions are considered to be self-executing, and the same goes for most of the treaty provisions for cooperation in criminal matters. Such provisions may even serve as the basis for the application of coercive measures.206 Where national laws conflict with treaty provisions, they are not to be applied (Art. 94 Constitution). As noted, EU law produces its effects in the Dutch legal order in and of itself, not via the Dutch Constitution.207 There have been a number of cases in which EU nationals tried to prevent/prevented extradition to third countries via civil procedures on the basis of Articles 18 and 25 Treaty on the Functioning of the European Union (TFEU) (Petruhhin).208 Compliance with provisions of foreign law will usually not be checked, for practical reasons and also because of the rule of non-inquiry. To that extent, Dutch incoming MLA procedures are strictly separated from the main proceedings abroad.

203

See the materials, referred to in footnote 187, wherein the legislator saw no need to implement Art. 14 (7) European investigation order Directive. 204 Cf. Hirsch Ballin (2014), no. 4.2. 205 Supra note 1. 206 Cf. Supreme Court of the Netherlands, judgment of 26 April 1988, ECLINL:HR:PHR:1988: AD0295; Van der Wilt (2014), no. 5. 207 Supra note 3. 208 Cf. District Court The Hague, judgment of 2 November 2017, ECLI:NL:RBDHA:2017:12708. For a successful argument that the Dutch state—when granting the extradition of a Bulgarian citizen to Turkey instead of Bulgaria—had taken insufficient account of Arts. 21 TFEU and 7 CFR/8 ECHR (right to a family life), see Court of Appeal of The Hague, judgment of 26 June 2018, ECLI: NL:GHDHA:2018:1767.

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Only under exceptional circumstances will Dutch authorities embark on an analysis of foreign law, for instance where it cannot follow from the extradition request itself that the acts for which extradition has been requested are indeed criminal offences in the requesting state.209 For the same reasons, Dutch courts will not undertake an assessment of defence or excuse under foreign law, save for cases where such defence or excuse follows directly from the request itself or can be ascertained without a thorough further investigation (zonder diepgaand onderzoek).210 Only in the latter case can it lead to a refusal of extradition (or any other type of assistance for which double criminality is a condition or refusal ground). It is conceivable, theoretically, that issues with respect to compliance with foreign laws in the investigative stage come up in subsequent Dutch granting/execution procedures. We already noted in the above that this even goes for the actions of Dutch authorities prior to the foreign request for cooperation.211 Obviously, where such infringements also lead to interferences with Convention rights (Art. 3 ECHR, for instance), they may be examined under that heading. In other cases, such complaints will in principle not be heard by Dutch authorities. That is because, particularly for ECHR states, violations of national laws are to be addressed in the requesting state. However, where it turns out that the authorities of that state do establish violations of their laws and subsequently notify their Dutch colleagues, there may be a reason for the latter to investigate to what extent the findings in the requesting state have an impact on their granting or execution decision. That may be so particularly when it turns out that—based on that new information—they would not have been allowed to provide assistance under Dutch law or under relevant international (including the ECHR) or EU law.

6.3.2

Judicial Protection and Applicable Standards in the Requesting State

Under the opposite scenario, the question arises to which extent and on what grounds persons concerned can challenge outgoing Dutch MLA requests. The answer to that question mirrors the observations in the above. The legality, proportionality and subsidiarity of such requests will be assessed in light of Dutch law and international law. The human rights situation in a specific country may be a reason not to issue a request.212

209

Cf. Supreme Court of the Netherlands, judgment of 12 March 2002, ECLI:NL:PHR:2002: AD8728. 210 Cf. Supreme Court of the Netherlands, judgment of 5 September 2006, ECLI:NL:HR:2006: AY3440. 211 Supra note 161. 212 Supra note 180.

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Pleading Requirements

The division of labour between the courts and the executive has its bearing on the standards that are used by the different actors. A second factor that determines the scope of review and the applicable standards is the distinction between primary and secondary forms of assistance. Under the former type of cases (exequatur procedures), there is no real difference between the tasks of the exequatur judge and the criminal courts in the Netherlands, although the former needs to take account of the ‘international sensitivities’ when commuting a sentence to Dutch standards.213 Exequatur courts are to investigate ex officio, for instance the personality of the sentenced person with a view to the determination of the appropriate sanction.214 Under secondary types of assistance (and the granting stages of transfer procedures), the scope of review is limited by nature. Article 26 EA defines the task of the extradition court,215 as does Article 28 WOTS, when it comes to transfer procedures. The courts need to establish the identity of the person concerned, the admissibility of the request and the possibility of granting it. The internal provisions of Dutch Criminal Procedure as regards the content of the judgment and the (mandatory) motivation of why substantiated arguments, pleas or defences were rejected are not applicable.216 That makes sense, of course, now that extradition courts do not operate as criminal courts and do not establish guilt. However, also the provisions on how to respond to raised arguments (advanced by the prosecution service or the person concerned) are not applicable.217 Dutch authorities will, in principle, always check for the fulfilment of the conditions and refusal grounds in cooperation requests.218 This is done, therefore, ex officio.219 The point is, however, on the basis of what information they perform this test. There is no access to the criminal files, and the procedures do not lend themselves for extensive investigations, certainly not under a principle of mutual recognition. Dutch authorities will rely mainly on the information in or accompanying the request and, sometimes, the additional information provided by the foreign authorities. The rule of non-inquiry again serves as an important structuring principle in this respect.

213

Supra note 61. Cf. Supreme Court of the Netherlands, judgment of 18 May 2004, ECLI:NL:HR:2004:AO6410. 215 Supra note 19. 216 Courts however must explain why they rejected an ‘onschuldsverweer’, see Art. 28 (4) EA. 217 See art. 29 EA a contrario. Those requirements are laid down in art. 359 CCP, particularly in section 2 (uitdrukkelijk onderbouwd standpunt). 218 Cf. Kamerstukken II 2015/16, 34493, 3, p. 15; Kamerstukken II 2016/17, 34611, 3, p. 7. 219 This goes, for instance, for the assessment of the condition of double criminality in abstracto. The person concerned must pinpoint (voldoende precies en gemotiveerd aangeven) its absence in concreto, cf. Supreme court of the Netherlands, judgment of 5 September 2006, ECLI:NL: HR:2006:AY3440. 214

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This may be different when arguments are raised by the person concerned. But even then, as a rule of thumb, Dutch courts will not undertake a thorough assessment comparable to that of an ordinary national criminal case, although recent practice shows that, in surrender cases at the least, when it comes to the assessment of the human rights situation in another jurisdiction, the scrutiny of the review has meanwhile become quite ‘intense’. In principle, however, the task of Dutch judicial authorities is limited to whether the defence can be ascertained without a thorough further investigation (zonder diepgaand onderzoek).220 The precise rules on the burden of proof and—connected to that—the scope of the courts’ review and their duties to respond to arguments raised by parties have not received much systematic attention in doctrine. Articles 28 EA and 30/31 WOTS contain provisions on the issues that need to be addressed in court decisions. These decisions must be duly motivated. As such, these provisions do not indicate how to deal with defences that have been rejected. There is case law that suggests that the rejection of substantiated defences (geadstrueerde verweren) also need additional motivation under this heading.221 Rejections of a position on the admissibility of the request, taken by the prosecution service, on the other hand, do not require an explicit motivation.222 The burden of proof, the standards of review and the requirements for a court’s ruling are, of course, connected. The applicable standard for the person concerned is not one of ‘beyond reasonable doubt’. As a rule of thumb, for the courts to enter into an examination into the potential existence of a refusal ground, that person will have to demonstrate that his/her position is arguable (aannemelijk) on the basis of facts, documents et cetera. Moreover, in principle, the objections raised must be a concern to him/her specifically. Most case law deals with the assessment of past or future human rights violations. Dutch courts then follow the rules set out by the Strasbourg (or Luxembourg) courts. This case law has been described above. In addition to the default position that an ex officio test is done (only) on the basis of the request or warrant, courts may also use ex officio knowledge of relevant circumstances in other countries. There is a certain connection here with the specialization within the judiciary (and prosecution services), also in the area of transnational cooperation. For instance, the District Court of Amsterdam is the sole court dealing with European arrest warrant cases. On that basis, it is well inversed into the different sets of detention conditions (or the rule of law conditions) all over the EU. It has used that knowledge to supplement the information contained

220

Cf. Supreme Court of the Netherlands, judgment of 5 September 2006, ECLI:NL:HR:2006: AY3440. 221 By implication, see Supreme Court of the Netherlands, judgment of 5 June 2007, ECLI:NL: HR:2007:BA4936 (extradition law). 222 Supreme Court of the Netherlands, judgment of 2 September 1986, ECLI:NL:PHR:1986: AB8072.

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in, for instance, European arrest warrants, also in the absence of a specific argument raised by the person concerned.223 Finally, the scope for review in civil procedures is much more limited, as was noted in the above. The civil courts will mostly limit themselves to a marginal test of the reasonableness of the decision of the Minister, safe for the directly applicable human rights standards.224

6.5

Guarantees Given by the Requesting State

Guarantees certainly play a role in Dutch legal practice, specifically under the international law framework. As such, asking for guarantees may be considered to be in contradiction to the assumption of mutual trust, which is in turn based on the treaty requirement.225 This implies that guarantees can be asked for only in cases where otherwise a refusal ground (or other deviations from the duty to cooperate) would have been applicable. In those cases, guarantees are an alternative to such refusals. There is much debate on the legal status of guarantees, and particularly on whether they have binding status or not.226 In the Dutch legal order, guarantees do play an important role and will, for instance, hinder the application of refusal grounds when formulated with sufficient precision,227 depending on the circumstances of the case. The effect of such a guarantee is after all to remove the existence of a real risk of a human rights violation in the requesting state.228 A sufficiently precise guarantee must be presumed to be respected on the basis of the principle of mutual trust (vertrouwensbeginsel), which in turn is, again, based on the existence of a treaty. This may be different only in exceptional circumstances. When there are serious reasons (ernstige redenen)—based on a substantiated defence—for believing that the guarantee will not be respected, it may not be accepted.229 There is little material on what would be the consequences for the Netherlands in cases where foreign authorities eventually did not respect—despite their prior assurances—the (contents of the) guarantee. Presumably, responsibility for the Dutch state would be rejected by Dutch courts, certainly in the relationship with

223

Cf. District Court Amsterdam, judgment of 14 May 2019, ECLI:NL:RBAMS:2019:3673. Supra note 5. 225 Glerum (2013), p. 171 et seq.; Kraniotis (2016), p. 205 et seq. 226 Both positive on this issue are Glerum (2013), p. 171 et seq.; Rozemond (2009). 227 Cf. Supreme Court of the Netherlands, judgment of 15 September 2006, ECLI:NL:HR:2006: AV7387, par. 3.4.2.; Supreme Court of the Netherlands, judgment of 17 June 2014, ECLI:NL: HR:2014:1441. See also Court of Appeal The Hague, judgment of 20 January 2005, ECLI:NL: GHSGR:2005:AS3366. 228 Idem, Glerum (2013), p. 171. 229 Cf. Supreme Court of the Netherlands, judgment of 17 June 2014, ECLI:NL:HR:2014:1441. 224

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those states that are also parties to the multilateral human rights treaties that guarantee not only the right to a fair trial but also the right to an effective remedy. That may be different, however, in cases where there were already indications at the time of examination of the extradition request of, for instance, non-compliance with ECHR supervision mechanisms or of negative experiences with the authorities of the requesting state in the past in similar situations.230 But then, the point seems to be that the guarantee should not have been accepted in the first place. There appears to be no obligation for Dutch authorities to monitor the case after a sufficient guarantee has been provided for. In the opposite scenario, precise and specific guarantees that have been provided for by the Netherlands are binding on the Dutch state. The main question in that situation—in case the Netherlands have provided guarantees, which are (allegedly) not respected—is whether compliance with those guarantees can be enforced by individuals in criminal proceedings (or civil procedures).231 A comparable issue arises with respect to the principle of speciality. Dutch courts have accepted—in consistent case law—that prosecutions for other offences than for which extradition was granted in principle lead to the Public Prosecution Service losing its right to prosecute.232 Under EU law, most of the relevant provisions do not offer room to ask for guarantees as a lighter alternative to a refusal. In those situations where EU law does provide for the possibility of asking guarantees, the binding legal basis for that lies in the nature of EU law itself.233 The District Court of Amsterdam has consistently held, for instance, that it—in cases of surrender of Dutch nationals for prosecution purposes—does not ask for specific guarantees on the length of the period after which a Dutch national/resident is to be sent to the Netherlands. Guarantees are, after all, binding because of EU law. In light of Article 47 CFR (effective remedy), non-compliance with those guarantees is considered a matter to be addressed before the courts of the issuing state.234 With the principle of mutual recognition as the dominant principle, the focus clearly is on the effectiveness of the scheme. Save for those cases where the Framework Decision provides for it itself, there is no room for obtaining guarantees from the issuing state. However, the legal practice that has emerged in European arrest warrant cases—with respect to detention conditions and the rule of law issues (Poland)—is that detailed questions are asked to the respective issuing judicial authorities. These judicial dialogues in effect often boil down to the same result as 230

As discussed by Rozemond (2009), p. 22, 28–29, 38–39, with references to ECtHR case law. Glerum argues that this is not necessarily the case, Glerum (2013), p. 172. See also Kraniotis (2016), pp. 149–154. 232 Cf. District Court Amsterdam, judgment of 25 March 2014, ECLI:NL:RBAMS:2014:2147. The same goes in surrender cases, incidentally, see Court of Appeal Arnhem, judgment of 13 March 2012, ECLI:NL:GHARN:2012:BV8900. 233 With the exception of the situations mentioned in Arts. 5 and 4bis (1)(d) FD European arrest warrant. 234 See Glerum (2013), p. 340, with references. 231

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a guarantee. Where the information provided does not sufficiently answer the questions asked (and sometimes they cannot be answered, for instance, because the conditions for humane detention simply do not (yet) exist), surrender must be postponed. Eventually, surrender procedures will then be terminated,235 or the executing judicial authority must refrain from giving effect to a European arrest warrant.236

6.6 6.6.1

Effectiveness of Judicial Review General Requirements (Access to Information and Suspensory Effects of the Remedy)

Under Dutch law, there is no general duty to inform individuals on outgoing requests, certainly not when the interests of the investigation require otherwise. Access—i.e. information on registration and correction or deletion of data—to the Schengen Information Systems is possible by addressing the data protection officer of the Dutch National police (Landelijke eenheid politie, Dienst Landelijke Informatieorganisatie),237 but such requests will mostly be turned down, either because there is no registration or in the interest of the investigation.238 In some instances, however, individuals are or will become aware of the existence of requests. In principle, and assuming they are a suspect (verdachte) in Dutch proceedings, they will have the rights and duties as provided for by the Code of Criminal Procedure, including the rights of access to a lawyer and access to the file. However, those rights may be limited in the initial stages of the procedure. Remedies against the issuing of a request are available where they also exist with respect to the investigative measures in a comparable Dutch criminal procedure.239 Those remedies are useful as such topics as the subsidiarity and proportionality of the measures will most likely not be tested by foreign authorities under the rule of non-inquiry or mutual trust.240 An example is found in the aforementioned complaint procedure (beklag), which offers protection for, inter alia, persons whose objects or data were seized or who were confronted with the recording of data during

235

CJEU, judgment of 5 April 2016, Joined Cases C-404/15 and C-659/15 PPU (Aranyosi/ Căldăraru), para 104. 236 CJEU, judgment of 25 July 2018, Case C-216/18 PPU (LM), para 73. 237 See Art. 41 of the SIS II Regulation in conjunction with Art. 25 of the Police Data Act (Wet politiegegevens). 238 Art. 27 Police Data Act. See also the (outdated, yet nonetheless informative) document: https:// autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/sis_ii_guide_of_access_updated_2015. pdf, (Accessed: 18 July 2019). 239 Cf. Art. 14 European investigation order Directive 2014/41/EU. 240 Kamerstukken II 2016/17, 34611, 3, pp. 12–13.

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(digital) searches or with decryption, preservation or restriction orders with respect to data.241 Complaint procedures may also be used to address the continuation of a seizure by foreign authorities executed as a result of a Dutch European arrest warrant (and, presumably, also MLA request).242 If granted, this will require an additional request by Dutch authorities to end the seizure/preliminary measure. In addition to the remedies offered by criminal procedure against requests for specific investigative measures, there is the possibility of civil injunctions. These proceedings may lead to the compensation of damages or to a cessation of certain investigative measures.243 Again, the test that will be applied by the courts is a marginal one. Only where no reasonable prosecutor (redelijk handelend lid van het Openbaar Ministerie) would come to such a decision (as, in this case, the issuing of a request) will the defendant succeed in his/her efforts. As regards the position of the Netherlands as a requested state, the relevant provisions of the Roadmap Directives have been incorporated in the Surrender Act (SA).244 With respect to the dual defence mechanism, which has been implemented by Article 21a EA, it is up to the person concerned to request the Dutch authorities to contact the issuing authority. The latter must then provide that person with the necessary information, for instance a list of potential defence lawyers. The final appointment needs to be done by the claimed person himself/herself.245 A similar provision is lacking for other types of assistance, for instance under MLA regimes or within the European investigation order setting. The District Court of Amsterdam has meanwhile ruled that a failure by the issuing state to appoint a lawyer with a view to assisting in Dutch surrender procedures does not affect the strict time limits of the Dutch surrender procedure; it cannot lead to a postponement.246 Under Dutch law, remedies in MLA procedures do have a suspensive effect, and the persons concerned will be notified, in principle. The relevant procedures have already been described in the above.247 It is possible, however, that, in the interest of the investigation, those persons are not notified. What may also be considered a serious setback in European investigation order cases is that under that specific EU regime, the traditional leave to transfer procedure (verlofprocedure) is no longer available. It is also possible to send the results of the execution of a European investigation order to the issuing authorities on a provisional basis.248 The latter provision implements Article 13 (1) and (2) of the European investigation order

241

Supra note 78. Supreme Court of the Netherlands, judgment of 3 June 2008, ECLI:NL:HR:2008:BC9015. 243 On that, see also Lindeman (2013), pp. 285–286. 244 See art. 17 SA (information on rights), art. 43a SA (access to a lawyer), arts. 30, resp. 23 (3–5) SA (rights to an interpreter and translation), art. 21a SA (appointment of a foreign lawyer with a view to assistance in the Dutch European arrest warrant-procedure). 245 Kamerstukken II 2014/15, 34157, 3 (tweede herdruk), p. 55. 246 District Court of Amsterdam, judgment of 8 August 2017, ECLI:NL:RBAMS:2017:5781. 247 Supra note 148. 248 Supra note 147. 242

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Directive.249 A similar provision for international MLA procedures was ultimately removed from the legislative proposal250 because of concerns that a later prohibition against using provisionally transferred data would be difficult to enforce outside the EU. Specific provisions for the EU context are found in Article 5.4.9 (3) CCP. A provisional transfer is not possible if it would cause serious and irreversible damage to the persons concerned. Moreover, the use of the materials as evidence is only possible after the final transfer. Until then, Dutch law continues to apply to the provisionally surrendered materials.

6.6.2

Ineffectiveness of Ex Post Facto Judicial Review

It may happen that irregularities occur in the process of the gathering or transferring of information/evidence to the Netherlands, upon an initial Dutch request. In those instances, the aforementioned case law of the Supreme Court applies.251 Dutch court will not enter into an examination of acts that have been conducted by foreign authorities when the country concerned is an ECHR state. Remedies must be sought in that state. The consequence of that is that the exclusion of the unlawfully obtained evidence, for instance, will not occur. That, of course, begs the question to what extent those remedies are still effective. This is different for violations of Article 6 ECHR as a result of the use of the materials. In turn, should damages occur as a result of irregularities in the execution of a foreign request warrant or order, then there is the possibility of (pecuniary) compensation for damages. There is a specific procedure for this in extradition and surrender law, but in general, the Dutch state is liable under civil law for torts (onrechtmatige daad). As regards the specific procedure for unlawful detention under extradition or surrender procedures, the Amsterdam District Court has chosen to assimilate the surrender procedures with those of extradition law. A person concerned can thus claim pecuniary compensation on the basis of Articles 67 SA, resp. 59 EA. Compensation occurs when, all circumstances taken together, grounds of reasonableness exist (gronden van billijkheid).252 In principle, such grounds are present when extradition/surrender has been declared inadmissible (ontoelaatbaar).253 The fact that the Dutch authorities or Dutch state cannot be blamed for the course of the procedures or the (continued) duration of the detention

249

Kamerstukken II 2016/17, 34611, nr. 3, pp. 11–12. Kamerstukken II 2015/16, 34493, nr. 3, p. 24. 251 Supra notes 184 and following. 252 See arts. 67 SA and 59 EA in conjunction with Art. 90 CCP. 253 By implication, compensation on this basis is not possible when the case of the Public Prosecutor has been declared inadmissible (for instance because the European arrest warrant was repealed); see District Court Amsterdam, judgment of 26 July 2018, ECLI:NL:RBAMS:2018:5343. 250

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does not prevent courts from offering compensation.254 The same goes for the possibility to find redress in the executing state; by no means will it be certain, after all, that such state will share the reasons for the inadmissibility and, consequently, the qualification as an unjustified deprivation of liberty. It may be, however, that there are reasons to believe that the detention has (also) been the result of the claimed person’s own actions. In that case, there may be a reason to deny or mitigate a claim.

References Glerum VH (2013) De weigeringsgronden bij uitlevering en overlevering. Een vergelijking en kritische evaluatie in het licht van het beginsel van wederzijdse erkenning. Dissertation, Vrije Universiteit Amsterdam Glerum VH, Rozemond M (2015) Uitlevering. In: Van Elst R, Van Sliedregt E (eds) Handboek internationaal strafrecht. Wolters Kluwer, Deventer, pp 163–240 Hirsch Ballin MFH (2014) Onrechtmatige rechtshulp en rechtsbescherming. In: Klip AH, Luchtman MJJP, Van der Wilt HG (eds) Internationale en interregionale samenwerking in strafzaken (IISS). Wolters Kluwer, Deventer, III.11 Kraniotis T (2016) Het vertrouwensbeginsel bij interstatelijke samenwerking in strafzaken. Dissertation, Radboud Universiteit Nijmegen Lamp R (2000) Misdaadvermogen en het internationaal strafrecht: de internationale samenwerking door Nederland, de Nederlandse Antillen en Aruba inzake de bestrijding van het witwassen en de confiscatie van wederrechtelijk verkregen voordeel. Dissertation, Universiteit Utrecht Lindeman JWM (2013) Redelijk handelende officieren en de vervolgingsbeslissing. In: Kelk C, Koenraadt FAMM, Siegel D (eds) Veelzijdige gedachten: liber amicorum prof. dr. Chrisje Brants. Boom Lemma, Den Haag, pp 283–295 Luchtman MJJP (2008) European cooperation between financial supervisory authorities, tax authorities and judicial authorities. Intersentia, Antwerpen Luchtman MJJP (2017) Transnationale rechtshandhaving: over fundamentele rechten in de Europese strafrechtelijke samenwerking. Inaugural lecture. Boom Juridisch, Den Haag Reijntjes JM (2015) Opsporing en kleine rechtshulp. In: Van Elst R, Van Sliedregt E (eds) Handboek internationaal strafrecht. Wolters Kluwer, Deventer, pp 337–404 Rozemond N (2009) Begrensd vertrouwen. Mensenrechtenbescherming bij uitlevering en overlevering. Uitgeverij Paris, Zutphen Sanders H (2015) Overdacht en overname van de tenuitvoerlegging van buitenlandse strafrechtelijke beslissingen. In: Van Elst R, Van Sliedregt E (eds) Handboek internationaal strafrecht. Wolters Kluwer, Deventer, pp 425–486 Swart AHJ (1997) Introduction. In: Swart AHJ, Klip AH (eds) International Criminal Law in the Netherlands. Edition Luscrim, Freiburg im Breisgau, pp 1–20 Van der Wilt HG (2014) Volkenrechtelijke aspecten van de internationale rechtshulp in strafzaken: verdragen als bronnen van recht. In: Klip AH, Luchtman MJJP, Van der Wilt HG (eds) Internationale en interregionale samenwerking in strafzaken (IISS). Wolters Kluwer, Deventer, I.4.1 Van der Wilt HG, Ouwerkerk JW (2014) Overdacht van strafexecutie: algemene opmerkingen. In: Klip AH, Luchtman MJJP, Van der Wilt HG (eds) Internationale en interregionale samenwerking in strafzaken (IISS). Wolters Kluwer, Deventer, V.1.1

254

Cf. District Court of Amsterdam, judgment of 26 July 2018, ECLI:NL:RBAMS:2018:5339.

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Van Wijk MC (2017) Cross-border evidence gathering: equality of arms within the EU? Eleven International Publishing, Den Haag

Michiel Luchtman Professor of Transnational law enforcement and fundamental rights, Faculty of Law, Economics and Governance, Utrecht University, The Netherlands.

Chapter 7

Country Report “Norway” Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker

7.1 7.1.1

Overview Judicial Protection in the Criminal Justice System

The Norwegian Constitution (Grunnloven) contains several guarantees that assert judicial protection in criminal cases. Several sections concerning human rights were recently implemented in the Constitution1 and are, to a substantial degree, inspired by the European Convention on Human Rights (ECHR). Norwegian constitutional human rights and European human rights are thus closely related. The Norwegian Constitution (NC) Section 92 commits the authorities of the state to generally respect and ensure human rights, both those expressed in the Norwegian Constitution and those expressed in international treaties to which Norway is a party. For the courts, this entails a duty to repair human rights violations committed by other

The original version of this chapter was revised. A correction to this chapter can be found at https:// doi.org/10.1007/978-3-030-55796-6_13 The authors wish to express their gratitude to Chief Public Prosecutor Anne Grøstad at the Office of the Director of Public Prosecution Norway for her valuable comments to the manuscript. 1

The Norwegian Constitution was reformed in 2014, corresponding with its 200th year anniversary. One substantial revision was the expansion of the Constitution’s human rights catalogue. S. Ugelvik (*) University of Oslo, Oslo, Norway H. L. Borgan Sulland Law Firm, Oslo, Norway A. Dalaker Office of the Norwegian Parliamentary Ombudsman, Oslo, Norway © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021, corrected publication 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_7

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authorities of the state similar to the obligation found in Article 13 ECHR. Section 92 should be seen in correlation with Section 89 NC, which gives the courts the power and the duty to review whether legal acts and other decisions made by the authorities of the state are contrary to the Constitution, including its chapter on human rights (E). Everyone has the right to have their case tried by an independent and impartial court within a reasonable time, according to Section 95 § 1 NC, enshrining the right to a fair trial, equivalent to Article 6 ECHR in criminal cases. Although Section 95 is more sparsely worded than its counterpart in the European Convention on Human Rights, the rights expressly stated in Article 6 no. 3 ECHR are to be interpreted into the section.2 Further, the constitutional right in Section 95 NC is more far-reaching than the European Convention on Human Rights in one regard: it ensures the right to have your case tried before the courts in all legal cases. The European Convention on Human Rights only requires access to an independent tribunal.3 In addition to the rights expressed in the Norwegian Constitution, the Human Rights Act of 1999 incorporates the European Convention on Human Rights, among other international human rights treaties,4 into Norwegian national law. According to Section 3, the provisions of the conventions and protocols incorporated by the Act shall take precedence over any other legislative provisions if a conflict of interpretation occurs. With this Act, the European Convention on Human Rights is given what is often referred to as semi-constitutional status in Norwegian national law. It is clear, however, that the Constitution formally is lex superior also to the Human Rights Act and the incorporated conventions.5 Further, the relevant acts usually contain a section stating that the Act is applicable within the limitations either recognised in international law or deriving from any agreement with a foreign state.6 The judicial protection following such international legal instruments thus applies at least as a weighty interpretational argument in the application of any national legal act. The mentioned rights and obligations apply to transnational and strictly national domestic cases alike. Every decision made by the authorities of the state must be in accordance with the Constitution and the Human Rights Act. There is no exception for cases where parts of the investigation were conducted with assistance from or on behalf of a foreign state or when decisions are executed on behalf of a foreign state. If the defendant for instance claims that the use of evidence gained by means of international cooperation is in breach of the right to a fair trial according to either Article 6 ECHR or the Section 95 NC, this claim can be tried before the Norwegian courts. The importance of full judicial control of these rights is expressed in the rules on appeal to the Supreme Court (Høyesterett). The Supreme Court may only try, as a 2

Innst. 169 S (2012–2013) chapter 1.8.5. The standard legal dogmatic methodology in Norway to analyse the current legal situation, implies placing heavy emphasis on the preparatory works of laws. Such policy documents have a particularly strong position among Norwegian legal dogmatic sources, far more than in many other jurisdictions (see e.g. Bergo 2000). 3 And only, with a few additions, in determination of civil rights or criminal charges. 4 As listed in Sect. 2, including the ECHR with several protocols, and major UN covenants and conventions with protocols. 5 Supreme Court plenary verdict of 16 December 2016 (HR-2016-554-P, Holship). 6 E.g. the Criminal Procedure Act, Section 4.

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point of departure, whether the lower court instances have committed procedural errors, and their understanding of the law.7 In cases concerning the ECHR and the NC, however, their competence also entails the application of the pertinent human rights rules in the specific case. The assessment of the evidence in the case is, however, not to be tried.

7.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

7.1.2.1

Overview of the Legal Framework

Norway has no specific legal act concerning cooperation in international criminal cases. In addition to regulating extradition, the Extradition Act of 1975 contains a chapter (V) regarding foreign requests for legal assistance in criminal cases in general, with an associated Regulation Concerning International Assistance in Criminal Cases from 20128 (hereinafter the Regulation). The procedures for judicial cooperation in criminal cases are described in a Ministry of Justice Circular on International Judicial Cooperation in Criminal Cases.9 Norway is not an EU Member State. In 2019, the Arrest Warrant Act of 201210 entered into force regarding the relevant cooperation matters following the Norwegian Parallel Agreement to the European Arrest Warrant,11 with its Regulation12 and Ministry Circular.13 There are in addition some sections regarding international assistance scattered in the Act of the Courts of Justice,14 the Criminal Procedure Act (CPA),15 the Act on the Transfer of Sentenced Persons16 and the Act on the 7 Criminal Procedure Act (CPA) Section 388 § 1 no. 2 and 3 concerning appeal of interlocutory orders, pertinent in cases concerning judicial international cooperation. 8 Forskrift om internasjonalt samarbeid i straffesaker, FOR-2012-12-14-1227. 9 G-19/2001. 10 Entering into force of the Norwegian parallel agreement of 28 June 2006 to the EAW required ratification by all EU Member States, which turned out to be difficult to attain. The final ratification finally took place in 2019. To emphasize that the regulations are not fully like those in the EAW, the arrangement is termed Nordic Arrest Warrants (NEAWs. The Act was applicable for cooperation following Nordic arrest warrants since 2012. The Nordic EU Member States still apply the Nordic Arrest Warrant regulations between themselves and Norway (Convention of 15 December 2005 on Surrender for Criminal Acts between the Nordic Countries [Nordic Arrest Warrant]). For a detailed introduction to the NAW, see Mathisen (2010). 11 Framework Decision 2002/584. Arrestordreloven, Act 2012-01-20-4. 12 FOR-2019-10-18-1388, specifically targeting rules of competence. 13 Ministry of Justice Circular on NEAWs G-2020/2. The Circular on intra-Nordic Arrest Warrants is G-2012/12. 14 Domstolloven, Act 1915-08-13-5. 15 Straffeprosessloven, Act 1981-05-22-25. 16 Lov om overføring av domfelte, Act 1991-07-20-67.

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Transfer of Criminal Proceedings Between European Countries.17 In 2016, the Criminal Procedure Law Committee18 delivered their proposal to a reform of the Criminal Procedure Act. They proposed to gather all the rules on international judicial cooperation in criminal cases in a separate part of the Act.19 The implementation would primarily have a pedagogical effect as no significant factual amendments were suggested. The revised Act was expected to enter into force in 2021 but is indefinitely postponed due to technical implementation challenges with parts of the proposal.20 The general procedure for receiving and responding to requests for legal assistance is found in the Regulation from 2012. Requests from most non-European countries not party to any agreement with Norway are received by the Ministry of Foreign Affairs, which forwards them to the Ministry of Justice, further transferring them via the Office of the Director of Public Prosecutions to the second level of public prosecution authorities in Norway, the regional public prosecution offices (statsadvokatembetene), to consider.21 Requests from EU Member States may generally be sent directly to the public prosecution offices, which, upon approval, transfer them to the police to execute. Requests for legal assistance to and from one of the Nordic countries may be sent directly to the local police authorities.22 The same applies to requests concerning transcripts of criminal records and serving of documents from Schengen countries. In practice, this procedure mainly applies to requesting countries outside the European Union. The bodies involved in the pertinent processes, thereunder that enable judicial protection, are detailed in the following.

17

Lov om overføring av straffeforfølging fra eller til annet europeisk land, LOV-1977-03-25-22. Straffeprosesslovutvalget, NOU 2016:24. 19 NOU 2016:24 p. 622. The regulations on arrest warrants, extradition, transfer of suspects or convicted persons are not suggested incorporated in the CPA. The reason is that while also these processes are closely connected to those of the CPA, they are comprehensive, and to some extent detailed and structured following the respective underlying international agreements. Assistance in strictly international police cooperation is not proposed included in the CPA. See the NOU chapter 15.3. 20 Some of the suggestions from the NOU will be implemented, but which, will not be known until at least 2021. 21 The Regulation, Sections 3 and 7. The Norwegian prosecuting authority consists of three levels of competence: the local chiefs of police (generally delegating prosecution competence to the police prosecutors), Statsadvokatene (the regional public prosecutors) and Riksadvokaten (the Director of Public Prosecutions). The prosecutorial system and competence follow from the Criminal Procedure Act chapters 6 and 7. 22 Nordic Agreement of 26 April 1974 Article 1. 18

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Norway as the Requested State General Rules

A general principle of mutual recognition applies in Norway as between the EU Member States, in the sense that requests for legal assistance shall comply in the same manner as we expect our legal requests to be complied with abroad.23 This is obvious if the request is in accordance with a convention where Norway is a party to, but it also applies as a general principle.24 There are few instances where Norwegian law requires a convention in order to execute a foreign request for legal assistance. Accepting requests outside of conventions is within the discretion of the Ministry of Justice. Usually, these requests are accepted under the condition that the requesting country assists a Norwegian investigation in a similar matter later. A granted request can be subjected to judicial review. Judicial requests from foreign countries are executed in accordance with Norwegian law.25 This entails that the Norwegian legal conditions, rules of competence and guarantees of judicial protection relevant for the type of request in question apply when executing national and foreign requests alike. If the foreign state requests the use of a specific form of execution of a measure, this is complied with as far as possible. The body that receives the request must independently consider the requested procedure, and the prosecuting authority (or other pertinent authority, see below) decides whether the procedure is in accordance with Norwegian law. If the request is not lawful, the body in question is competent to refuse the request. If such a decision is doubtful, the superior authorities, i.e. the Director of Public Prosecutions and the Ministry of Justice, should be consulted.26 The requesting state should also be consulted as to whether the request may be executed in another way.27

7.1.2.2.2

Gathering of Evidence

The level of judicial protection a person will receive depends on the nature of the cooperation and the requested measure. The more intervening the measure, the stronger is the need for judicial control. Norwegian law therefore generally requires an ex ante decision from the courts when the prosecuting authorities want to make use of coercive measures.28 Typical examples of measures that require an ex ante

23 See e.g. in the Extradition Act Section 23a no. 1. Section 23a is relevant for dealing with international legal requests in general, cf. the Regulation Section 7. 24 Op. cit. Section 26 no. 3. 25 The Act of the Courts Section 46 § 3 and the Regulation Section 8. 26 The Regulation Section 7. 27 The Regulation Section 8 § 1. 28 In addition to a similar decision from the competent authority in the requesting state.

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decision from the courts are remand in custody,29 search30 and communication monitoring.31 Exceptions are usually allowed in cases of urgency. For instance, according to the Criminal Procedure Act, the prosecuting authority, and even the police, may decide a search without a court decision if a delay entails a risk, e.g., of spoiling the purpose of the search.32 The urgency exceptions are hardly relevant where the police act following a formally considered request. This might be different when police from multiple states cooperate in a joint investigation team (JIT), where the foreign police operating in Norway may be given the same powers as Norwegian police.33 Urgency measures are reviewed ex post. As already mentioned, the same rules apply when Norwegian police carry out such measures following a foreign request. A court decision is thus required if the request entails the use of coercive measures.34 There are other bodies providing judicial protection than the courts. In court proceedings concerning communication monitoring, the subject is obviously not informed about the case, but a defence counsel is appointed to act on her behalf. Court proceedings are not held in cases of search, and the subject is not permitted a defence counsel nor a right to appeal these decisions.35 For the measures of communication monitoring (tapping),36 an independent Control Committee is generally responsible for overseeing the legality of the police and prosecution’s decisions and work.37 The Committee secures judicial protection in these cases both by considering reports from the chiefs of police to the Director of Public Prosecutions and by considering complaints from individuals who perceive themselves unfairly subjected to communication monitoring. Use of other kinds of investigative measures in domestic cases may only be reviewed during the trial phase. Processing a foreign request for such measures requires, however, a decision from the pertinent authority, and this decision may mainly be challenged. Investigative measures generally decided by the prosecuting authorities without court involvement typically entail questioning of witnesses and sharing of information and gathering of evidence that does not require a search. Being far less intrusive measures, the accompanying rights of the individuals concerned are more limited. If a foreign request can be complied with without an

29

The Criminal Procedure Act Section 183. The Criminal Procedure Act Section 197. 31 The Criminal Procedure Act Section 216a. 32 Sections 197 and 198. 33 The Police Act (1995-08-04-53), Sections 20a and 20 § 3. 34 The Extradition Act Section 24 no. 7. 35 Appealing a decision on search would be ex post, and the subject is not considered to have a current legal interest in the appeal result. See Supreme Court decision in Rt-1997-1590, on the Criminal Procedure Act Section 377 and coercive search. 36 CPA chapter 16a. 37 CPA Section 216h. 30

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ex ante court decision, only the international dimension of the request can be tried before the Norwegian courts.38

7.1.2.2.3

Extradition and Surrender Following a European Arrest Warrant

The general procedure of granting extradition requests follows the procedure described above in Sect. 7.1.2.2. The courts decide whether the conditions for extradition are met,39 while the Ministry of Justice makes the final decision whether extradition will take place. In cases of remand in custody in extradition cases, the law requires court proceedings, where the subject is entitled to a lawyer, information on the matter of the charge, the right to appeal, as well as the other rights expressed in ECHR Articles 5 and 6.40 The Extradition Act Section 25 regulates temporary extradition where a person imprisoned in Norway is requested transferred to another state with the purpose of witness examination or an identification parade. Such requests are made to the Ministry, who forwards the request via the Office of the Director of Public Prosecutions to the pertinent police district.41 If the imprisoned person does not consent to the transfer, the court is asked to consider the requirements (no. 4). One of the reasons for refusal is where powerful reasons (sterke grunner) imply otherwise, for example the health of the prisoner.42 Norwegian citizens may also be subject to such a temporary transfer. Surrender following the Nordic European Arrest Warrant Parallel Agreement (NEAW) is significantly less complicated than traditional extradition procedures. The mutual recognition of decisions made by judicial authorities of other Member States entails fewer requirements for transfer, more expedient procedures and the possibility for transfer of Norwegian citizens. Contrary to many other European Arrest Warrant (EAW) Member States, Norway has not made any reservations regarding the transfer of national citizens following the NEAW cooperation. Norwegian authorities may, however, apply the principle of mutuality, thus not transferring Norwegian citizens to states unwilling to transfer their citizens to Norway.

38

See Sect. 7.2.1. Including among others that there is reasonable ground(s) for suspicion, cf. Section 10, that requirements of double criminality are met, cf. Section 3, and that the crime(s) in question are not time-barred according to Norwegian rules, cf. Section 9 (except in cases where the requesting state is a Schengen member). Mathisen (2009) gives a detailed overview of the extradition instrument in general and specifically for the Norwegian case. 40 The Extradition Act Section 20. Several of these rights follow equally and generally in the Criminal Procedure Act and the Norwegian Constitution. 41 Similar rules apply for Norway as the requesting state, cf. Section 25 a. 42 There is only one publicly available interlocutory order on Section 25; TOSLO-2012-30214. A Norwegian prisoner was refused extradited among others because of health issues and of the possibility for video examination. The latter is probably increasingly relevant instead of temporary extradition, at least when the subject is not the key charged. 39

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The Ministry of Justice decides to transfer to the states who have made such reservations.43 Before the NEAW entered into force, Norway did not extradite Norwegian citizens outside of the Nordic countries.44 A NEAW may be issued either as an international wanted notice in the Schengen Information System (SIS II) and Interpol or to the National Criminal Investigation Service (Kriminalpolitisentralen (Kripos)) or, when the requested person has known whereabouts, directly to the Chief of Police in a particular police district.45 Kripos is the correct office in cases of unknown whereabouts or charges concerning international core crimes. Where the whereabouts are unknown, the arrest warrant is registered in SIS II or, if the requirements for such registration are not met, to Kripos, which registers the requested person in the national register of wanted notices. The communication of arrest warrants through the centralised police bureau entails some degree of judicial control in the sense that it weeds out flawed or irregular requests, securing a central best practice instead of more decentralised processes on lower levels. The prosecution authorities generally decide whether a NEAW should be complied with, but only after the court by interlocutory order has ruled on the fulfilment of the pertinent conditions and whether there are mandatory grounds for refusal.46 Requiring court proceedings is obviously more time consuming and thus contrary to the NEAW aim of a more expedient and efficient procedure. It is also more cumbersome than extradition within the Schengen Area following the Extradition Act (Section 17a), where the public prosecutor tries the conditions, as long as the subject agrees to extradition.47 Reasons for increased court involvement were both that the arrest warrant arrangement entails a more encompassing obligation to surrender than the extradition procedure and that mandatory grounds for refusal may be frequent.48 The Norwegian model thus seems somewhat reluctant to carry out the principle of mutual recognition fully in this respect.49 The lag in the process is sought remedied by giving the final decision competence primarily to the public prosecutors and not the Ministry in surrender cases. Also, in contrast to intra-Nordic arrest warrants, the subject may not withdraw her consent to transfer after court proceedings.50 Section 10 § 2 Arrest Warrant Act. Following the Convention of Nordic Arrest Warrants (NAW). 45 Section 25 Arrest Warrant Act. 46 Section 14 § 1, cf. Sections 6-9 and 11. The decision-making competence concerning Nordic Arrest Warrants is generally with the public prosecution alone, without court involvement (Section 21 AWA, Section 2 FOR-2019-10-18-1388). 47 When the Arrest Warrant Act entered into force also for the NEAWs, the Schengen rules on extradition became less relevant in Norwegian law. They are, however, still applicable for the Schengen members outside of the EU, i.e. Switzerland and Liechtenstein. 48 Prop. 137 LS (2010–2011) Ch. 10.4.3. 49 The Norwegian solution of court assessment of the conditions is inspired by the Swedish and Finnish legislation (Op.cit.). 50 AWA Section 21 § 1, Prop. 137 LS (2010–2011) p. 38. 43 44

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The court decides whether the crime in question constitutes a political crime, in which case the NEAW is furthered via the Director of Public Prosecutions to the Ministry of Justice for the final assessment of whether or not to grant the request.51 The court does not assess the foreign verdict underlying the NEAW nor whether the crime(s) in question is time-barred.52 The interlocutory order may be appealed to the regional appellate court (lagmannsretten) and subsequently, if the applicable requirements are met, to the Supreme Court (Høyesterett), following the rules in the Criminal Procedure Act Chapter 26.53 While the ordinary time limit for appeal is 14 days, it is limited to three days in the arrest warrant cases. An appeal entails suspension of the further process pending the appellate court’s decision. When the requested person agrees to surrender, the decision competence in the prosecution authorities is at the lowest level, i.e. the police prosecution.54 Without consent or where the public prosecution (statsadvokaten) or the Director of Public Prosecutions has prosecutorial competence, the former decides to surrender. The lower prosecution level, police prosecution, may deny requests in either case where the court has ruled that the conditions are unfulfilled.55 The statsadvokaten also has the decision competence where there are competing arrest warrants concerning the same person56 unless the competing warrant is a request for extradition from a non-EU Member State. In such cases, the Ministry of Justice makes the final decision.57 The decision to grant a European arrest warrant may be appealed by way of complaint to the superior prosecution authority, following the rules in the Criminal Procedure Act.58 A complaint is not possible for matters that are subject to ordinary appeal, i.e. whether the requirements for surrender are fulfilled. If an arrest warrant has significant flaws and the issuing state has failed to correct these within a reasonable time, the request does not constitute an arrest warrant, and the public prosecution may refuse the request without court involvement.59 The Norwegian Correctional Service also has a role in the processing of NEAWs. The Service must be given a chance to comment before decisions are made to reject,

Section 9 § 3. Unless the crime is wholly or partially committed in Norway, cf. Section 8 § 2 litra k. 53 AWA Section 14. 54 Section 14 § 3, again, though, after the court’s interlocutory decision. 55 FOR-2019-10-18-1388 Section 4. 56 Op. cit. 57 Arrest Warrant Act Section 29. 58 CPA Section 59a, cf. Section 14 § 6 AWA. The time limit is 3 days, and the complaint has suspension effect. The superior authority must make its decision immediately, and as far as possible within three days from receiving the complaint. The time limit is extended in the cases where the Ministry Justice has the final decision competence (Circular G-2020/2 p. 17). 59 The AWA Section 5 § 2. 51 52

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postpone or set conditions for a NEAW.60 Where the subject is below 18 years old, her legal guardians, and if relevant the Norwegian Child Welfare Service, also have the right to comment.61 It is notable that while Norway, as a non-EU member, is an affiliated member of the EAW cooperation, this is not the case with the European Investigation Order (EIO). Both the Director of Public Prosecutions and the current Norwegian Liaison Public Prosecutor in Eurojust have expressed concern that Norway’s outsider position to the EIO causes significant delays in the processing of/responding to Norwegian MLA requests.62

7.1.2.2.4

Enforcement of Prison Sentences

The point of departure in Norwegian law is that foreign sentences are not served in Norway. In international criminal law as recognised by Norway, a sentence should be served in the country where the crime is committed. Both concerns of rehabilitation and social relationships may, however, justify a transfer of the enforcement to the home state of the convicted. The transfer may be requested either by the sentencing state or by the state of which the sentenced person is a national. Transfer of enforcement of prison sentences is regulated in the Norwegian Act on the Transfer of Sentenced Persons (the Transfer Act). The Act is based both on the Convention on the Transfer of Sentenced Persons of 21 March 1983 and its Protocol of 1997, the European Convention on the International Validity of Criminal Judgments of 28 May 1970, and on several bilateral agreements. The EU refused Norway’s request to have a parallel agreement with Council Framework Decision 2008/909/JHA of 27 November 2008.63 Transfer between the Nordic countries follows specific regulations, among others that the verdict, by an administrative decision, is automatically transferred into the Norwegian system as a sentence of the same proportion.64 A NEAW may be issued for the purposes of execution of a sentence or detention order. The applicable procedure in these cases is described above in Sect. 7.1.2.2.3. Both the request and processing of a request are in principle decided by the Ministry of Justice. Decisions on enforcement of prison sentences in non-Nordic

60

AWA Sections 12, 15, and 31. Prp. 137 LS (2010–2011) p. 54 and 57. 62 Letter from the DPP to the Ministry of Justice 20 March 2017; Stoltenberg (2019). 63 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 for the purpose of their enforcement in the EU. The specific reason for the decline is unknown, but one suggestion is that it is harder for Norway to gain access to cooperation instruments that are not primarily in all states’ interest. Police cooperation instruments gain other states more than, in example, transfer of sentences from Norway. (NOU 2012:2 Innenfor og utenfor, p. 694.). 64 For further details, see Ot.prp.nr.13 (1962–1963). 61

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countries are, however, delegated from the Ministry to the Directorate of Correctional Services (Kriminalomsorgsdirektoratet (KDI)).65 Following the 1983 Convention, the sentenced person must consent to transfer.66 When the decision has been made that a convicted person is to be transferred to Norway, the Ministry further decides whether the enforcement of the sentence follows the Convention Article 10 or 11, i.e. whether the enforcement shall constitute merely a continuance of the foreign sentence (the Act Section 6/Art. 10 Convention) or is to be converted (Section 7/Art. 11). The first instance is the main rule.67 In the conversion cases, the courts give the sentence basis in Norwegian law. If the foreign sentence is considered in breach of Norwegian law or the sentence is longer than the maximum penalty in Norwegian law for that crime, the Director of Public Prosecution is requested to bring the case to court in order for the court to impose a new sentence for the convicted crime. This alternative is mainly to be followed if the foreign sentence is significantly harsher than it would have been following Norwegian law. Section 96 of the Constitution decides that persons may only be sentenced or punished after a court judgment. When enacting the Transfer Act, the Ministry discussed whether it was unconstitutional that an administrative body, not a court, decides whether a foreign sentence is consistent with Norwegian law.68 Since the Constitution accepts foreign verdicts as sufficient legal basis following Section 96, it was deduced that the mere consideration of a foreign verdict’s consistency with Norwegian law did not constitute judicial activity. Foreign verdicts concerning criminally insane persons must be brought to court for a Norwegian verdict.69 It is within the Ministry of Justice’s/KDI’s discretion to choose whether the enforcement of a foreign sentence follows the Convention Article 10 or 11. But the question of whether the type of sentence or the length of the sentence is in breach of Norwegian law is a question of applying the law and may be challenged before the courts.70 Convicted persons may also be transferred in cases outside of the Transfer or Validity Conventions if there are “specific reasons” for such transfer.71 Where such reasons are present, the Ministry of Justice may allow transfer following an

65 See Regulation FOR-2013-11-25-1413, following the Act on the Transfer of Sentenced Persons (the Transfer Act) Section 3. 66 Norway has bilateral agreements outside the Convention with the following states: Thailand, Lithuania, Latvia, Romania, including transfer where the convict does not agree, in FOR-1995-0217-129 Supplementary Regulation on the Transfer of Convicts. The Schengen Agreement Art. 68 and the Additional Protocol of 18 December 1997 also have regulations on transfer where s/he does not agree to transfer. 67 Section 4 FOR-1995-02-17-129. 68 Ot.prp. nr. 47 (1990-1991) ch. 4.4. 69 Section 7 § 2 Transfer Act. 70 Ot.prp. nr. 47 (1990–1991), comment to Section 6. 71 Sections 12 and 13.

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assessment of the specific case as a whole.72 The transfer follows the same regulations as applicable for other transfers, thereunder the Execution of Sentences Act.73 Appeal follows the rules of the Criminal Procedure Act.74 A public defence counsel is appointed the subject in all court proceedings following the Transfer Act.75 This right is almost equal to ordinary domestic criminal cases.76

7.1.2.3

Norway as the Requesting State

The rules on which bodies are competent to issue requests for legal assistance are approximately equal to those regarding the reception of such requests.77

7.1.2.3.1

Gathering of Evidence

The prosecuting authorities and the courts are the competent bodies to request recordings of evidence.78 The Extradition Act only specifically grants the public prosecution the right to request “recordings of evidence”, but according to the preparatory works, this is meant to include all kinds of requests for assistance, even the use of coercive measures.79 The Act does not define which level of the prosecuting authority that is competent to make such requests, but according to the Regulation, this task falls mainly to the Public Prosecutor (statsadvokaten).80 They send the request to the Ministry of Justice, which, after reviewing it, forwards it to the relevant foreign authority.81 Some requests are exempt from this according to regulations in international agreements.82 If the request entails the use of coercive measures that would require an ex ante decision from the courts if executed in Norway, the request must be tried before the Norwegian courts before being

72

Ministry Circular G-2007-2 Ch. 2.1.3. No further explanation or examples are given. Straffegjennomføringsloven, ACT-2001-05-18-21. The Act gives detailed regulation on the carrying out of all types of Norwegian sentences. 74 Cf. the Transfer Act Section 14. 75 Section 16. 76 Section 16 only makes an exception for cases concerning penalty charge notices, while there are some more exceptions in the CPA Section 96 concerning petty crimes. 77 The Regulation Sections 3 and 7. 78 See the Extradition Act Section 23b and the Act of the Courts of Justice Section 47. 79 Prop.97 LS (2011–2012) pp. 65–66. 80 The Regulation Section 12 § 2. 81 Prop. 97 LS (2011–2012) pp. 65–66. 82 For instance, as mentioned, the prosecuting authorities can send request directly to the relevant authorities in Nordic countries. 73

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forwarded to the foreign state. As with domestic cases, there is an exemption for urgency measures (see Sect. 7.1.2.2.2). Both the subject and her defence counsel, and if applicable the counsel for the victim, are entitled to be informed of a request for a recording of evidence and to make suggestions for the recording in order to secure a sufficient level of contradiction.83 The court may request that Norwegian procedural rules are followed in the foreign deposition if these are considered particular reassuring related to that case.84 Access and information are, as with Norwegian domestic cases, depending on the status of the investigation.85 The Norwegian authorities may request, e.g., delayed informing of the subject, but the enforcing of the requested measure abroad obviously follows the applicable national rules in the requested state.

7.1.2.3.2

Extradition and Surrender Following a European Arrest Warrant

The police and public prosecution authorities consider the need for the extradition of a person suspected or charged in a Norwegian criminal investigation or someone convicted in Norway. The request is directed from the Office of the Director of Public Prosecutions via the Ministry of Justice.86 The Ministry works as a checkpoint, controlling that the request meets the requirements in the applicable convention or agreement with the requested state. Depending on the agreement, the Ministry directs the request either to the Norwegian embassy or to the central authorities.87 Before the police authorities register a search notice in international registers, they are obliged to attain confirmation that extradition will be requested. A court order for arrest must also be requested prior to the registering of and request for extradition. The subject shall not have to be arrested abroad any longer than necessary, and the requested authorities shall not have to await Norwegian procedures following arrest.88 NEAWs are issued by the public prosecution (statsadvokaten)89 following a court order either on arrest or on enforcement of a prison/detention sentence of at least 4 months. As with other coercive measures following the Criminal Procedure Act, the public prosecution may make an urgency decision on issuing a NEAW for arrest purposes, with a court approval as soon as possible after that.90 “As soon as

The Act of the Courts of Justice Section 47 § 2 and the Criminal Procedure Act Section 271. Act of the Courts Section 48 § 3. 85 Criminal Procedure Act Sections 242 et seq. and 264. 86 Extradition Act Section 23. 87 Schengen Convention Art. 65. 88 Circular G-2001-19 ch. 2.2. 89 Section 5 AWA Regulation. 90 Section 32 §§ 1 and 2, AWA. For intra-Nordic arrest warrants, the authority rests within the public prosecution alone, and there are no minimum sentence framework requirements, cf. Section 33. 83 84

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possible” is meant to imply the following working day.91 There are no sanctions on exceeding the suggested time limit. The right to a counsel for the subject is as point of departure not applicable before upon arriving Norway, and the rules of the Criminal Procedure Act apply.

7.1.2.3.3

Enforcement of Prison Sentences

While the Ministry formally requests the transfer of enforcement of sentences, the preparation of the requests takes place on the local level of Correctional Services before the Directorate of Corrections makes the decision of transfer. When the convicted person does not agree to be transferred, the local correctional office has the responsibility of establishing whether he or she is a citizen of a country party to the 1997 Additional Protocol and whether there is a final expulsion decision from the Immigration Directorate (UDI) or Immigration Appeals Board (UNE). The bilateral transfer agreements do not always necessitate a final expulsion decision before requesting transfer of a prison sentence against the will of the sentenced, as long as he or she is a citizen of the requested state and is considered a resident of that state. The KDI makes the final assessment of these requirements. The convicted person may herself request transfer of sentence to her home state, corresponding with the Convention Article 4 no. 3.92 Irrespective of the person’s request, this also has to be forwarded as a request from the state authorities.93 If the sentence of a person convicted in Norway may be transferred abroad, he or she is entitled to sufficient information from the prison regarding the measures that may be used and any consequences of a transfer, also concerning the enforcement in the administering state.94 The information must be in writing, and there must be no doubt as to the convicted person’s voluntariness and full understanding of any consequences of the transfer.95 The Regulation makes clear that Norway should not request transfer to a state which will measure a sentence significantly lower than the Norwegian sentence, including more leisurely regulations on parole.96

91

Circular G-2020-2 Part III no. 2. Section 10, FOR-1995-02-17-129. 93 Article 2 no. 3. 94 Sections 9 and 11, Regulation FOR-1995-02-17-129. 95 Op. cit. Section 12. 96 Op. cit. Section 13. 92

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Right to Appeal

When a court decision is necessary to establish whether, for example, the conditions for extradition are met,97 both the defendant and the prosecuting authorities may appeal the court’s decision in the matter, following the ordinary rules of appeal in the Criminal Procedure Act chapter 26. The final decision on extradition is made by the Ministry of Justice98 and may be challenged exclusively by the person concerned.99 Other individuals, non-governmental organisations (NGOs) or other organisations may neither challenge the decision on behalf of the defendant, nor may the prosecution authorities make such a complaint. In surrender cases following the EAW cooperation, the final decision is as a general rule made at the public prosecution level.100 The subject concerned may challenge the decision and any terms set for the transfer, following the rules in the Criminal Procedure Act Section 59 a. A superior prosecuting authority may overturn the decision of a subordinate authority when the decision has been made at a lower prosecutorial level. Access to a complaint entails, however, only one level: a decision made by the police prosecutor may be challenged before the Public Prosecutor, but this level’s decision may not then again be challenged before the Director of Public Prosecutions. As mentioned above, the Criminal Procedure Act applies to cases concerning the transfer of prison sentences, unless specifically stated otherwise.101 This implies that the general rules of appeal in CPA apply, except the rules on reopening a case.102

7.2 7.2.1

Subject Matter of Judicial Control International and Internal Dimensions of the Granting Decision

The international dimension (whether to grant) and internal dimension (necessary measures of execution) of a granting decision may in Norway be handled within the same proceedings and by the same body, depending on which body is entitled to

97

Which is required both in ordinary extradition cases and transfers following the Arrest Warrant Act (see Section 14). 98 Or by the prosecution authorities in transfer-cases following Nordic or European arrest warrants. 99 Following the rules of complaint in the Public Administration Act Section 28. 100 Arrest Warrant Act Section 14, with similar rules on complaint being applicable for the Nordic transfer cases, see Section 21. The Ministry of Justice has the final decision competence in cases concerning Norwegian citizens, and where there are competing arrest warrants (Sections 10 and 29). The rules on complaint follow the Public Administration Act (Ruud et al. 2019A § 14 no. 21). 101 The Transfer Act Sections 14 cf. 15. 102 The Transfer Convention Arts. 12 and 15, and the Validity Convention Art. 10

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process the request. If the Ministry of Justice is the pertinent receiving body, they will either examine the international dimension before sending it to the prosecuting authorities for execution or make this assessment after the prosecution authorities have gathered the evidence in question. The prosecuting authorities and/or the court will then examine the internal dimension before the prosecuting authorities decide whether to grant the request. The international dimension may, however, also be considered by the courts and the public prosecution, that is whether the request is in breach of ordre public, including rights under the European Convention on Human Rights.103 For requests concerning the use of coercive measures, this procedure is directly stated in the Extradition Act Section 24 fourth paragraph. It will, however, apply to other requests as well, as the prosecuting authorities have an obligation to make sure that investigation is conducted according to Norwegian law.104 The international and internal dimensions are in these situations dealt with separately. If, however, the prosecuting authority—in accordance with an international treaty—is the appropriate receiving body, both the international and internal dimensions are handled by the same body. This is the normal procedure when receiving requests from countries within the European Union and Schengen. The two dimensions are usually consequently dealt with together. If the courts are involved in the processing because of the requirement of court procedures related to coercive measures, however, they also consider whether the conditions of the international dimension are met.105 The Directorate of Correctional Services handles both the international and internal dimensions of foreign requests for the transfer of prison sentences. In some cases, for example, where the sentence in question exceeds the Norwegian maximum sentence frame, the public prosecution authorities are asked to try the case before the courts, to establish a new sentence.106 The internal dimension in terms of any coercive measures necessary to execute a transfer follows the above-mentioned regulations in the Criminal Procedure Act. Judicial control of a decision to grant a legal request varies depending on the type of request. In cases concerning coercive measures, requiring an ex ante review by the courts, both the international and the internal dimensions are tried in the same proceedings.107 If the request concerns neither extradition nor other coercive measures, only the international dimension is subject to judicial control in Norway. The decision whether or not to make use of non-coercive investigative instruments, such as questioning a witness, falls within the discretion of the prosecuting authorities. The use of such measures cannot be challenged before the courts.

103

The Extradition Act Section 23a no. 2. The Criminal Procedure Act Section 55 § 3. 105 Section 24 no. 4. 106 The Transfer Act of 1991 Sections 6 and 7. 107 The Extradition Act Section 24 no. 4. 104

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The rules related to the transfer of enforcement of sentences are detailed above in Sect. 7.1.2.2.4. There are several grounds for refusing a foreign request on the international dimension. Some are absolute in the sense that if one of them is present, the request cannot be granted. These grounds for refusal can be tried before the courts to their full extent. A request must be refused if granting it entails a violation of Norwegian sovereignty, the security of the nation, the legal order or other essential interests of the country.108 The threshold is high for invoking these exceptions. In extradition cases, refusing a request is most relevant where there is a risk of human rights violations.109 Norway is to some extent both inside and outside the EU, in terms of being a member of so many of the cooperating instruments and being subjected to the EU regulations and subsequent European Court of Justice (ECtHR) practice in order to ensure a dynamic evolvement of the cooperation instruments.110 A clear example of this is that the general prohibition of extradition based on political or military offence does not apply when the request comes from a state within the Union or the Schengen cooperation.111 In a recent interlocutory order, the Supreme Court considered an appeal where the defendant claimed that surrender to Poland would be in breach of ECHR Article 6.112 The question (among others) was whether surrender to Poland required an assessment of risk in the specific case that proceedings in Poland would be in breach of Article 6 no. 1 because of the development towards less independence of judges.113 The Arrest Warrant Act (AWA) Section 8 requires specific grounds that surrender may be contradictory to the guarantees in Article 6. In line with international court practice, the Supreme Court underlined that there must be a “real risk for being subjected to a flagrant denial of justice” and that this test is a stringent one.114 The Supreme Court agreed that the independence of judges is within the core of the right to a fair trial.115 But although the general assessment may be that the court system, to some extent, is flawed, an assessment of the specific case must also be applied. The court stated that the politicised appointment of a judge, or her risking sanctions or pressure in exercising the law, does not in itself render the judge incapable of securing a fair trial in cases completely lacking political overtones or 108

The Extradition Act Section 23a no. 2 and no. 3 respectively contain the mandatory and facultative refusal grounds. A similar phrasing is found in the European Convention on Mutual Assistance in Criminal Matters of 1959 Art. 2. 109 See for instance the Extradition Act Section 12 first paragraph d which holds that a request for extradition is to be refused if the person concerned risks a death penalty. 110 E.g. NOU 2012:2, and Ugelvik (2019). 111 The Extradition Act Section 23a § 1 no. 4. 112 Cf. AWA Section 8 last paragraph. 113 HR-2020-553-U, with further references to the relevant ECtHR and CJEU statements. 114 ECtHR, judgment of 27 October 2011, Application no. 37075/09 (Ahorugeze v Sweden), paras. 114–116. 115 In line with the CJEU’s statement in its judgment of 5 July 2018, Case C-216/18 PPU, para. 61.

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other doubtful circumstances.116 A specific assessment of real flagrant risk is thus still required in each case of surrender. In the case in question, it was reasonable to believe that a case concerning the crime for profit would be subject to a fair trial through court proceedings. Correspondingly, the Supreme Court thus opens up for that surrender following other types of crime, for example, in some way linked to a critique of the public administration or power, may be in breach of Article 6. The right to hearings before impartial judges also follows from the Norwegian Constitution (NC) Section 95. Interpreting this requirement in light of ECtHR interpretation, instead of the NC as the point of departure, may, however, contribute to a more homogenous legal practice across Europe relating to European arrest warrants, also since the ECtHR seeks to include CJEU and EU legal standards as legal sources for interpretation. The Supreme Court order has been criticised for not taking full advantage of the possibility for judicial control in, for example, inviting more actors with knowledge of the Polish legal situation to contribute in enlightening the court; for not trying the case in a plenary session, only a chamber; and, finally, for not giving sufficient consideration to relevant foreign court practice in similar matters.117 This might be the sign of an unwillingness or reservation in the Supreme Court’s judicial control of the international dimension of international criminal cooperation. If the competence to refuse a foreign request is at the police prosecution level, the public prosecutor may refuse the request.118 Both the court and the prosecution authorities may refuse to grant or carry out a request upon finding compelling reasons not to do so in cases where the Ministry has the final competence.119 The discretionary consideration is bound by any international obligations that Norway adheres to. The Ministry of Justice may choose by their own discretion to deny a foreign request on one of facultative grounds for refusal.120 The conditions are often established during the court proceedings establishing the legality of the extradition request.121 Other legal requests may, for example, be refused if the underlying offence is considered a political or military offence,122 if the authorities have knowledge of a judgment in Norway or an EU/Schengen state that prohibits further prosecution or if other compelling reasons are present.123

HR-2020-553-U § 22. See University of Bergen Professors Holmøyvik and Einarsen, 26 March 2020, https://rett24.no/ articles/feil-avgjorelser-til-feil-tid-hoyesteretts-nylige-polen-kjennelser. 118 Regulation FOR-2012-12-14-1227 Section 7, see Ruud et al. (2019) note 7 re the Extradition Act Section 23 a. 119 Ruud et al. (2019). 120 The Extradition Act Section 12 no. 2 for extradition, Section 23 no. 3 c for other requests. 121 The Extradition Act Section 18, see Ruud et al. (2019) § 12, note 23. 122 Not an applicable exemption between Schengen or EU members. 123 The Extradition Act Section 23a no. 3. 116 117

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Outside of the rogatory commissions, in extradition cases, only the courts and the Ministry of Justice consider the pertinent conditions and decide on granting or refusing the requests.124 The Extradition Act has several specific grounds for refusal concerning requests for extradition. In most cases, they correspond with the general rules for refusal mentioned above, but are expressed in greater detail. All of these can be tried before the courts. These grounds for refusal are many and of a varied nature. For instance, the request cannot be granted if the person concerned is a Norwegian citizen,125 he or she risks exposure to human rights violations, the extradition will go against basic humanitarian rights126 or the limitation period for the criminal act has expired according to Norwegian law.127 The same applies if there is a legally enforceable judgment concerning the offence in Norway or if the person is either acquitted or has served time for the offence in a country party to certain conventions.128 If the request concerns the use of coercive measures that require a court decision before execution, there is a requirement of double criminality.129 The Supreme Court has held that it is sufficient that the act itself is criminalised in both countries.130 It is not required that all the specific Norwegian conditions for punishment are present.131 Requests from Nordic countries are exempt from the requirement of double criminality.132 The Arrest Warrant Act has several exemptions from the requirement of double criminality, for example when the act is committed as part of an alliance performing several acts with the purpose of promoting the group’s objective, as long as the act is criminalised in the issuing state with a sentence of 1-year imprisonment or more.133

124

Except extradition to Schengen Member States, where the public prosecution has this competence, f. Section 17a. 125 The Extradition Act Section 3. 126 The Extradition Act Sections 6 and 7. 127 The Extradition Act Section 9. 128 The Extradition Act Section 8. 129 The Extradition Act Section 24 no. 3. This does not apply between the Nordic countries, where coercive measures may be requested although the underlying act is not criminalized in Norway (no. 3 last sentence). The sufficient level of suspicion of guilt must still be assessed in Norway (Grøstad (2020), ch. 14.3.3.1). 130 For extradition, the double criminality requirement follows in the Extradition Act Section 3. For transfer of sentences, this follows in the 1983 Convention Art. 3 no. 1 litra e. 131 See the Supreme Court decision in Rt-2010-1495-U. 132 The Extradition Act Section 24 no. 3. 133 Cf. Section 7. In addition, a long list of 33 acts in the AWA Regulation Section 6 is excluded, cf. AWA Section 7 § 3.

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Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

Norwegian courts may examine the lawfulness of foreign requests under foreign as well as national laws. In practice, the courts seem reluctant to assess foreign proceedings and decisions, and the threshold of the courts’ examining of the legality of a foreign request appears quite high. This is particularly so concerning requests from the EU Member States, generally close to Norway legally and politically. Further, in addition to awareness of the inherent limitations of international law, the substantially more dubious requests may have been excluded before they reach the courts since the police, prosecutors or Ministry of Justice review the requests first. These authorities, especially the public and police prosecution authorities, however, may perform the same assessment of the requests. As with the courts, the focus of the judicial authorities is foremost on the subject being given the same rights as he or she would have if the proceedings were entirely within a Norwegian process.134 The Regulation on International Cooperation in Criminal Cases sets out some of the formal requirements related to foreign requests, for example concerning police interrogation. If a request is incomplete or there is a need for more information, the processing authority shall give the requesting state the opportunity to correct/supplement the request.135 The foreign request is executed in accordance with Norwegian law. However, another requested procedure as described from the requesting state may be followed as long as this is not prohibited according to Norwegian law.136 This practice indicates that the Norwegian legislation is in focus and not the rules of the foreign country. In addition to the requirements mentioned above, a request for extradition formally requires information about the time and nature of the criminal offence, as well as information about which penal provisions are applicable to the crime.137 In extradition cases, the foreign authorities’ resumé of the facts of the case are the basis of the Norwegian authorities’ assessment, as long as the resumé appears reasonable.138 This is also presumably the point of departure when the request comes from a state with a lower level of procedural justice, at least requests concerning coercive measures.139 The Extradition Act Section 10 concerns the relevance of foreign decisions: if the person in question is convicted of a crime in the requesting country, it should be assumed that the foreign assessment is correct. The request can only be denied if there is a particular reason to believe that the foreign decision is based on an 134

See Grøstad (2020), pp. 27–28. The Regulation on International Cooperation in Criminal Cases Section 6. 136 The Regulation on International Cooperation in Criminal Cases Section 8, and the Act of Courts Section 46 § 3 concerning requests decided by the courts. 137 The Extradition Act Section 21 no. 3. 138 LB-2015-66840 cf. HR-2015-1516-U. 139 Grøstad (2020), ch. 14.3.3.2. 135

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incorrect assessment.140 An example of such a reason is where the suspect has not been present in the court hearing and has not been allowed the right to contradiction.141 In HR-2018-1053-U, the Supreme Court held that it is not prohibited to provide evidence on the question of guilt in these cases, but primarily if there are signs that basic guarantees of judicial protection have not been provided in the underlying hearing. The court found that even though the person concerned had not been present during the foreign court hearings, his lawyer had been. Consequently, there was no violation of his right to contradiction and no special reason that the foreign decision required a closer consideration. In cases of extradition where the person in question has not been convicted, the Norwegian courts must make an independent assessment of the basis for the foreign request.142 This entails assessing whether there is just cause for suspicion that the person is guilty of the criminal offence the request is based on. If the foreign decision is based on a judgment from a court, this judgment will be a part of the body of evidence that the Norwegian court must base their decision on. The weight of the foreign judgment will depend on a concrete assessment where the Norwegian level of trust in the particular foreign country’s legal system is an important factor.143 The Supreme Court has explicitly discussed the Norwegian courts’ obligation to review foreign law independently. In an extradition case concerning an arrest warrant from a court in Italy, one of the questions of the case was the importance of the Italian decision for the court’s assessment.144 The Supreme Court held that the Norwegian authorities initially should be able to assume that the competent foreign authority had applied the law of its own country correctly. The foreign law does not require review unless there are special reasons that call for further investigations. The court held that as long as a foreign court has found that there is an adequate suspicion of guilt, the Norwegian authorities should normally be able to accept this without further consideration of the question. Along the same line, the Supreme Court has held that, even though the courts are obliged to make an independent assessment of whether there is just cause for suspicion, a judgment from a court in a country close to Norway both in legal and political system must be given great weight in the assessment.145 The courts must also make an independent assessment when the foreign state requests the use of other coercive measures that require an ex ante court decision. Although the decisions mentioned above only concern extradition, similar considerations will be applicable in these cases, given the fact that extradition is more infringing into a person’s life than other coercive measures.146

140

The Extradition Act Section 10 no. 1. Ot.prp.nr. 30 (1974–1975) p. 36. 142 The Supreme Court in Rt-1995-149. 143 Ot.prp.nr. 30 (1974–1975) p. 36. 144 HR-2001-844. 145 Rt-2010-106-A. 146 See Grøstad (2020), ch. 14.3.3.2. 141

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There are situations where Norwegian judicial authorities may have to request clarifications of or amendments to the foreign decisions for the decisions to meet the requirements for granting the request. This is, for example, the case in situations of requested communication monitoring. The Norwegian legislation requires the decision to specify the specific communications installations (anlegg) that are requested controlled.147 Following national legislation in many states, such decisions target a person, not an installation. This is sufficient in the sense that it is in line with the requesting state’s legislation.148 For the Norwegian police to ask the court’s permission to grant the communication monitoring in these situations, it is necessary to request a modification of the decision or a clarification for them to be able to identify the pertinent phone(s) or other installations in question.149 In cases regarding requests that concern neither extradition nor other coercive measures that require an ex ante court decision, only the international dimension can be tried before the Norwegian courts. Questions such as whether there is a sufficient degree of suspicion will not be subject to review. The legality of the foreign request under foreign law may, however, be tried in these cases. But the Supreme Court has repeatedly stated that Norwegian authorities should assume that the competent foreign authority has applied the law of its own country correctly.150 Norwegian judicial authorities are not formally restricted from reviewing the underlying foreign decisions that a request is based on. It is considered an unnecessary obstacle to international cooperation if Norwegian authorities were to demand a large amount of documentation in each case, in order to make an independent assessment.151 If the requesting state is a country where we have a high degree of trust in the judicial system, such a system would be impractical, both for political and efficiency reasons.152 This is obvious following the EAW related cooperation, for example. But this practice has been formalised in the pertinent government circular and court practice for about 20 years and may as such signify a relatively trusting attitude from Norway’s side.153 If the requesting state is one that is less trustworthy and far from Norway legally or politically, it is more likely that the judicial authorities need more information to rely on the request or are more prone to assess the underlying decisions.

147

Criminal Procedure Act Sections 216 a or b. Extradition Act Section 24 no. 2. 149 Grøstad (2020), op. cit. 150 HR-2001-844 and Rt-2014-680 §§ 10-11. 151 Grøstad (2020). 152 See for example the extradition case in HR-2019-120-U. The Supreme Court states that the weight of the decision of a foreign authority or court will depend on a concrete assessment, where the degree of trust in the foreign judicial system is a significant aspect. This case related to a request from Belarus, where the foreign court’s grounds for suspicion appeared a bit unclear. As a result, the Supreme Court dismissed the Court of Appeal’s decision. 153 See e.g. Rt-2004-1826, underlining that in extradition cases concerning arrest, the foreign verdict is not even required attached to the request (in contrast to extradition requests concerning execution of sentences). 148

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While foreign requests can be examined before the national courts, it is as a main rule not possible to lodge a legal remedy with a Norwegian court that triggers judicial review in the requesting state. Some exceptions apply. An ex post consolidating of two sentences in Sweden and Norway was rejected in a recent Supreme Court decision, with the general reason that Norwegian verdicts stand on their own feet when it comes to taking into consideration foreign decisions.154 The Norwegian courts were, in this case, the first to sentence the person, and the claim of consolidation had been made also in Sweden. It is notable that the possibility for Norwegian courts to review the decisions of foreign courts was discussed in the preparatory works in connection with the Law on Enforcement of Nordic Sentences (etc.).155 This possibility was rejected with the reason that such a system of review would be technically hard to administer and jeopardise the notion of mutual recognition of the courts’ decisions.156 The alternative path to review was instead the possibility to either refuse the request for transfer of sentence or apply for pardon. Applications for a pardon can be directed to both states. If the application for pardon is directed to the administering state, the issuing state must be heard before making a final decision. Applications claiming that the limitation period is expired are for the issuing state to determine alone.157

7.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

Requests for foreign assistance from Norway are reviewed by the courts in mainly the same way as domestic investigative instruments. The requests are subject to judicial control before they are issued if they concern the use of coercive measures that require an ex ante decision from the courts. In these cases, the court’s decision is attached to the request when sent to the receiving state. If the request does not concern such coercive measures, it is not subject to the courts’ judicial control in Norway before it is issued. It is with the discretion of the public prosecution authorities to decide what kind of investigative instruments are pertinent, both in domestic and international cases, as long as they lack coercive elements interfering with a subject’s personal life. Some judicial control follows from the hierarchy of competence to make the requests, as described above. The requests for assistance can be challenged by addressing the evidence that is the product of the request. During the main hearing, the defendant can assert that a

154

HR-2019-1261-A. Consolidation of sentence is possible, but not mandatory in all situations. Lov om fullbyrding av nordiske dommer på straff mv. Act-1963-11-15. This Nordic cooperation is not based on an international agreement, but by the pertinent states agreeing on uniform enactment of enforcement of Nordic sentences. 156 Ot.prp. nr. 13 (1962–1963) pp. 5–6. 157 The Act on Nordic Sentences Section 20 §§ 1 and 2. 155

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piece of evidence is gathered illegally and must, therefore, be exempt from consideration by the court. This claim can be held, for example, on the ground that the execution of the request was illegal according to foreign law or that it would be illegal according to Norwegian law. Claiming that sending the request was illegal according to Norwegian law seems less applicable. The decision on whether evidence should be exempt from consideration is based on a broad assessment. According to Norwegian rules of criminal procedure, the court shall determine the case upon a free evaluation of the evidence. This entails that even if a piece of evidence is gathered in violation of the defendant’s rights, it may still be presented in court after an assessment of the case as a whole. Important factors in the assessment are the seriousness of the violation, if presenting the evidence will entail a continuation of the violation and whether the violation may have affected the credibility of the evidence.158 An example of this assessment is the decision in Rt-2011-1081. The case concerned two witnesses who had been interrogated in Brazil. The interrogation consisted of threats, pressure and promises; all these methods are illegal means for gathering evidence according to Norwegian law. The defended asserted that the witnesses could not be allowed to testify in the Norwegian court as they would be influenced by their original testimony in Brazil. The Supreme Court disagreed and allowed the witnesses to testify. The court held that the question of possible influence had been subject to considerable review and contradiction during the proceedings. Further, the witnesses would not be subjected to any undue pressure during the Norwegian consideration of the case. Evidence can be gathered in a way that is legal in the requested state but illegal in the requesting state. The Supreme Court has held that unless the evidence is gathered in violation of fundamental Norwegian values, it can be presented following such a scenario. The court has not clarified what these values consist of, but a safe assessment is that these include general human rights and the Norwegian constitutional framework. This guideline related to fundamental Norwegian values was initially established in the case Rt-2002-1744.159 The case concerned evidence gathered in Spain. The question was whether the results of a communication monitoring, which did not meet the requirements of this measure in Norwegian law, could be used as evidence before a Norwegian court. The Supreme Court allowed the evidence on three conditions: firstly, because the evidence was legally obtained in Spain; secondly, because the defendant got access to the material; lastly, because the gathering of evidence did not breach fundamental Norwegian values. Moreover, the court added that since the defendant had chosen to stay in a country with fewer limitations on communication monitoring than Norway, he could have no reasonable expectation that information from such investigation measures would be refused in a later trial.

158

See for instance the Supreme Court decisions in Rt-2004-858 and Rt-2003-549, and the relevant ECtHR practice on the matter. 159 The Supreme Court in the decision Rt-2005-1524 reaffirmed this.

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An important aspect of the assessment when allowing the evidence was that the Norwegian prosecuting authorities had not requested communication monitoring specifically, but rather legal assistance in general related to a particular case. The Spanish authorities executed the communications monitoring on their own accord. If the Norwegian prosecuting authorities had directly asked for this investigative method, it might have been seen as an attempt to circumvent the requirements in Norwegian law, which could have altered the outcome of the case. Following this case, the Director of Public Prosecutions has given instruction stating that communications monitoring should not be requested in a foreign country if it breaches Norwegian law.160 Still, if the requested authorities make use of such instruments without a specific request from Norwegian authorities, the evidence from this investigation is applicable before a Norwegian court. In general, this is in line with the pertinent European Court of Human Rights practice.161 Evidence gathered abroad in breach of ECHR Article 3 will generally entail that the Norwegian proceedings would be in breach of the fair trial rights of Article 6 and thus be excluded as evidence.162 The decision not to initiate a request is made by the prosecuting authorities or the courts and will largely be within the judicial authority’s discretionary competence. The defendant’s lawyer can suggest to the prosecuting authorities that certain evidence should be gathered abroad.163 If this request is denied, a petition can be filed in the courts.164 The courts’ decision in these cases cannot be appealed. The same request might, however, be presented during the main hearing, where the court can come to a different result. If the court in the main hearing concludes that the requested evidence is not to be recorded, this can be used as grounds for appeal on the courts’ decision as a whole, including the question of guilt and sentence.165

160

The Director General of Public Prosecutions’ letter of 20 January 2003. Especially ECtHR, judgment of 12 May 2000, Application no. 35394/97 (Khan v. Great Britain), para. 34, and ECtHR, judgment of 12 July 1988, Application no. 10862/84 (Schenk v. Switzerland), para. 46. 162 Frøberg and Ugelvik (2019), ch. 3.2, with further references to relevant ECtHR practice. The threshold of certainty in establishing whether Art.3 has been violated appears to be higher when the requested state has an efficient legal system (op. cit. ch. 4.5). 163 Either judicial recording of evidence before the main hearing, or new or differently procured evidence, cf. the Criminal Procedure Act Sections 265 and 270. 164 See the Act of the Courts of Justice Section 47 and the Criminal Procedure Act Sections 265 and 266. 165 See Rt-2012-1663. 161

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Concentration of Judicial Review (SIS II) and Legal Remedies Against Alerts and Information in Police Databases

The Norwegian National Criminal Investigation Service Kripos coordinates the cooperation between Norwegian police and other states’ police. Norway is also affiliated with a number of cooperation agreements, such as Interpol, Europol, Eurojust, Frontex, the Prüm cooperation and, of course, the Schengen cooperation. Legal remedies against an alert in the related databases vary to some extent, depending on the database. The registered person is entitled to have deleted or corrected incorrect, incomplete or illegal information registered in SIS II, following the Act regulating the Norwegian application of information within the Schengen Information System (SIS/II).166 The demand for correction is directed to the national Supplementary Information Request at the National Entries (SIRENE) office, i.e. Kripos. Where the information in question is registered by a foreign state, Kripos notifies the foreign authorities with a request to amend or delete the alert. If the foreign authorities fail to comply with this request, the registered person may direct a complaint to the Ministry of Justice.167 Complaints on any entry or alert registered by Norwegian authorities are directed to the Police Directorate, which, before making a decision, is obliged to consult the Norwegian Data Protection Authority (Datatilsynet).168 The Datatilsynet has a general control function related to the SIS (II) as it is obliged to continuously ensure that the registering authorities act according to the Act and its Regulation and that any errors are corrected. The Datatilsynet acts on its own initiative and also upon request from the registered person. When foreign authorities have registered the alert, the Datatilsynet performs its controls in coordination with that state’s control body.169 The Act gives the Datatilsynet authority to order the Kripos’ SIRENE office to delete or modify illegal registrations. The police and the registered subject may appeal a decision related to such an order to the Norwegian Committee of Privacy Protection (Personvernnemnda),170 which is an independent public administration body.171

166

Lov om Schengen informasjonssystem (SIS-loven), Act 1999-07-16-66, Section 16. Section 16 last paragraph, see also Section 24. 168 SIS Act Section 19. 169 Section 21. 170 Section 23. 171 Regulated in Section 22 of the Processing of Personal Data Act (Lov om behandling av personopplysninger [personopplysningsloven]), Act 2018-06-15-38. The board may not be instructed in the processing of any individual case nor in their professional assessments. The Act was enacted to bring Norwegian law in accordance with the EEA Agreement’s attachment XI no. 5e (the GDPR Regulation, EU 2016/679). 167

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The police and public prosecution authorities’ processing of data in criminal cases, outside of the scope of the SIS Act, is regulated in the Police Databases Act.172 Any data transferred from the SIS to another police database, data from the SIS handled outside of the SIS or the processing of supplementary data according to the SIS Act173 is, however, subject to the Police Databases Act.174 The Act unites all rules on police duty of confidentiality and regulates the issuing of and access to data. This includes fingerprints and DNA databases, which are obviously relevant, for example, to the Prüm cooperation. Another example relevant for transnational criminal proceedings is access to and complaint against wanted notices in police databases outside of the SIS, which also is regulated in the Police Databases Act.175 The Criminal Sanctions Database shall contain information on foreign criminal sanctions and measures when the person subjected to these is a Norwegian citizen, a Norwegian enterprise or a person that works or resides in Norway and the measures are sanctioned by a state that Norway has entered into an agreement with on the communication of such information. In addition to the SIS (II), Kripos has processing responsibility for additional 16 of the 19 central Norwegian police databases.176 The other two are the responsibility of the National Police Immigration Service (PU) and the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (ØKOKRIM). The Norwegian Data Protection Authority (Datatilsynet) has similar supervisory tasks towards all police data processing177 as with the SIS, except data processed by the Norwegian Police Security Service (PST), and the police processing of data in cases of communications monitoring.178 A person may address the Datatilsynet directly if she is registered or believes herself to be registered in a police database and requests to know whether the data registered in her name are in accordance with law and that the rules on access are followed.179 The person does not have to address or complain to the police before

172

Lov om behandling av opplysninger i politiet og påtalemyndigheten (politiregisterloven) Act-2010-05-28-16. The Act ensures Norwegian realisation of the Council Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters. 173 Section 11. 174 Ot.prp. nr. 108 (2008–2009) comment to Section 3. 175 Section 24 cf. the PDA Regulation Section 9-8. 176 The permanent police databases are: The Sanctions Database, the Police Log, the criminal intelligence databases, the DNA Database, the Fingerprints and Photo Database (see the Act Chapter 3). 177 Police Databases Act Section 58, the Regulation of the Police Databases Act section 42-1. 178 PST data processing is supervised by the Parliamentary Oversight Committee on Intelligence and Security Services, cf. Section 68, according to the Act of 3 February 1995 No. 7 pertaining to oversight of intelligence and security services. Police communications monitoring is as mentioned before within the control responsibility of a particular control committee (Sect. 7.1.2.2.2 above), cf. the PDA Regulation Section 42-1. 179 Police Databases Act Section 59.

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contacting Datatilsynet, albeit their role is as a supervision and control body. For transnational cooperation, the most relevant decisions following the Police Databases Act are probably breaches of the duty of confidentiality, and decisions of access, restriction of processing and erasure, or associated compensation.180 Notably, the Police Databases Act does not apply to foreign police operating in Norway unless they are part of a JIT or other cooperation that entails a duty to follow Norwegian police legislation.181 The issuing of information from the Norwegian police databases, however, must comply with the rules of the Police Databases Act.182 The Police Databases Act regulates the disclosure of data to another country for purposes of use in an individual criminal case183 or to cooperating foreign police authorities and security and intelligence services for the purpose of averting or preventing criminal offences or if the disclosure is necessary in order to verify the data, and when an international agreement, statute or convention that Norway is a party to prescribes this.184 The data in question may concern crimes in Norway or those (potentially) taking place abroad. The disclosure shall, in any case, be subject to an assessment of necessity and proportionality, thereunder considering whether the receiving state has satisfactory personal data protection laws.185 The subject may direct her appeal against alerts (etc.) both to the supervising authority and to the processing body. The rules on legal remedies in the Police Databases Act are supplementary to the rules in the Criminal Procedure Act and the Public Administration Act. As a point of departure, a complaint on a decision on police data processing is addressed to the superior instance of a body with processing responsibility, i.e. mainly Kripos. Depending on whether it is the police or public prosecution that has made a decision, the superior instance is either the Police Directorate or the superior instance in the public prosecution hierarchy.186 The Ministry of Justice is a superior instance where the Police Directorate or the Police Security Service has made the pertinent decision. The superior instance’s decision may not be challenged, nor the Director of Public Prosecution’s first instance

180

Police Databases Act Section 55. Appeals on breaches of confidentiality shall as a main rule be sent to the Norwegian Bureau for the Investigation of Police Affairs (Spesialenheten) for their consideration of criminal sanctions PDA Regulation Section 18-8). 181 Ot.prp. nr. 108 (2008–2009) comment to Section 3. 182 Section 22. 183 Including in connection with criminal investigation, case preparation, the decision on the case, implementation of the decision, follow-up and checks (Sections 22 cf. 26). 184 Sections 22 cf. 26. 185 PDA Regulation 9-9. 186 I.e. either the regional Public Prosecutions or the Director of Public Prosecutions, cf. the Criminal Procedure Act Section 59a.

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decisions.187 The Act and its Regulation contain several specifications, and some exceptions that are not detailed on here.

7.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

Following the Police Act Section 20 litra a, foreign police officers may participate in joint operations or investigation teams, or in other matters perform police work in Norway, provided an agreement with the sending state exists. This also applies to observation or hot pursuit on Norwegian territory. Foreign police personnel may, if necessary, be provided with general Norwegian police powers while operating in Norway. The powers must be limited in time and to specific cases or functions.188 The foreign personnel is considered as Norwegian public servants according to the Norwegian Penal Code, in terms of both criminal responsibility and protection.189 Section 20a opens up for a regulation giving more detailed instructions on foreign police work in Norway, but this has not yet been enforced.190 It is notable that this access to giving more detailed instructions was seen as securing sufficient level of judicial protection (rettssikkerhet) in connection with, for example, foreign polices’ secret investigation in Norway, alongside the premise that foreign police operating in Norway must do so according to Norwegian police regulations, and the possibility to agree upon conditions and frameworks for the operation in question.191 Since 8 years have passed since the latest amendment of Section 20a, the need for Regulation is apparently not urgent. There is no court practice related to Section 20a so far. There is no formalised judicial review scheme for investigative measures done by foreign authorities in Norway. It is, however, presupposed that all foreign police activities take place according to Norwegian law. Thus, the rules on judicial review against investigative measures on Norwegian territory are the same as for strictly domestic police investigation measures. The regulations mentioned above initially applies to request to and from states both inside and outside the EU, unless otherwise specified.

187

The provisions of chapter VI of the Public Administration Act apply insofar as they are appropriate. 188 Sections 20a cf. 20 § 3, see also Prop 97 LS (2011–2012), point 9.2. 189 Which is in accordance with the 2000 Convention Article 15 and the 1959 Second Additional Protocol Article 21. 190 Foreign police officers operating in Norway according to the Schengen cooperation are, however, included in the general Command Instruction (ordreinstruksen) RPOD-2010:5 Section 2 § 1 no. 4. This implies, among others, that they are obliged to follow orders within the Norwegian police hierarchy. 191 Prop. 97 LS (2011–2012) p. 52.

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Scope of Judicial Protection and Applicable Legal Standards

7.3.1

The General Framework of International Cooperation in Criminal Matters

7.3.1.1

Judicial Protection and Applicable Standards

Fundamental human rights are the key concern when deciding upon a foreign request. As shown above, the Norwegian Constitution has had a human rights chapter since 2014, in its outline inspired by the European Convention on Human Rights (ECHR).192 ECHR is, as aforementioned, incorporated as such in Norwegian law, alongside several other human rights conventions, taking precedence over ordinary Norwegian law in cases of conflict of interpretation.193 Both the European Court of Human Rights and European Court of Justice court practice are part of the Norwegian authorities’ interpretation of the fundamental rights, to provide necessary homogenous and dynamic evolving of the European human rights. The principle that states carry out granted requests in accordance with the requested state’s law is to some extent given, simply in light of national sovereignty within state territories.194 This is also stated in several conventions, such as the 1959 Convention Article 3 no. 1. Upon receiving requests for assistance, Norwegian authorities’ primary concern is thus Norwegian law, in addition to applicable international human rights standards. Applying the requesting state’s law is primarily applicable when considering if necessary requirements of, for example, double criminality are met (see immediately below.) The legal system as such may also be subjected to assessment (see also 7.2.2 above). If Norway receives a request to extradite an individual, the court may make an assessment of the legal system and general situation in the requesting state, if this state has a low level of procedural justice or has a reputation of systematically breaching human rights. Additional information may be requested.195 The court will be reluctant to extradite the individual if the provided and required information is difficult to validate. In order to grant an extradition request, the outcome of the assessment must be that there is no danger of persecution or threat to life or freedom, on discriminatory grounds.196 In the case referred to in Rt-2010-40, a person was extradited to Kosovo 192

See above in Sect. 7.1.1: Overview of the judicial system. The rights in the Constitution and the ECHR presumably have the same content. 193 Human Rights Act Section 3. 194 It also follows directly in the Act of the Courts Section 46 § 3, and the Regulation on International Cooperation Section 8. 195 See for example LB-2016-70188, cf. Rt-2010-40. 196 The Extradition Act Section 6, like the assessment in the Refugee Convention Art. 1A.

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from Norway, even though he had been granted asylum in Norway some years earlier. The Supreme Court found that the situation in Kosovo was stable enough for the person to return. They pointed out that Kosovo had established a set of institutions to ensure the rule of law in recent years, and there were several guarantees given, such as a fair hearing in criminal proceedings. In this case, several questions were posed from Norwegian authorities regarding the fairness of the trial. Each element of the proceedings, including the participants, the guarantees during investigation, the main hearing and potential appeal are (briefly) discussed. The case shows that Norwegian courts will look into both the formal and factual legal standards of the requesting state. Requests that entail extradition or the use of coercive measures require, among others as a general rule, double criminality.197 This necessitates some level of application of foreign law, for example, in order to compare the description of the criminal act.198 At the investigative stage, it is not necessary according to Norwegian law to establish all requirements of culpability etc., merely that the act is criminalised in both states.199 The request is required to contain sufficient information to establish whether the act is punishable in Norwegian law.200 Where an interrogation or hearing is requested, the Norwegian authorities must consider the facts of the case in order to assess, for example, what status the subject has according to Norwegian criminal procedure law. States may often have diverging regulations on when the subject attains the status of the suspect, and the concomitant rights may also vary.201 Any investigative measure taking place in Norwegian territory is supposed to be in accordance with Norwegian law. Thus, the assessing authority must consider the facts of the case in order to give the subject sufficient rights according to the Norwegian Regulation. The law of the requested state concerning rights of the subject is not relevant to the carrying out of a measure in Norway.

197

Double criminality was also discussed above in Sect. 7.2.1. It is probably more common for the Norwegian courts to assess the facts underlying the foreign verdicts. An example is HR-2018-581-U, where the Supreme Court considered the conditions of extradition based on a Polish conviction of transfer of drugs, with a sentence of 9 months’ imprisonment. The Supreme Court’s consideration did not assess the Polish law, but established that the underlying facts of the case, sharing a few marihuana cigarettes between the suspect, his girlfriend and friend, did not constitute illegal transfer of drugs according to the Norwegian Penal Code. Such dealings with drugs may constitute a breach of the Act relating to medicines etc., which does not carry a minimum sentencing frame that meets the requirement of the Extradition Act. 199 Appellate court decision RG-2010-1283, and further appeal rejected by the Supreme Court in HR-2010-1495-U. 200 The Extradition Act Section 24 no. 2, referring to the Criminal Procedure Act for the necessity of coercive measures to have basis in Norwegian law. 201 In Norway, the status of either witness, suspect or charged entails different rights for example related to the right to the right to silence (not to self-incriminate, in court: Criminal Procedure Act Sections 90, 108 and 123) and to a public defence counsel (CPA Sections 100 cf. 97) on various stages of the investigation and trial. 198

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Differences from Purely Domestic Proceedings

The rules of carrying out investigative measures in Norway as requested by a foreign state, in both terms and procedure, are the same as in Norwegian domestic cases.202 The Norwegian Constitution and the European Convention on Human Rights, with related jurisprudence, make up the procedural framework, together with the Extradition Act203 and the Act of Courts.204 Arrest and apprehension following the Arrest Warrant Act (AWA) are subject to slightly different regulations than strictly domestic cases. There are several general conditions that simply do not fit. For example, while the Norwegian CPA for arrest requires a minimum sentencing frame of 6 months for the applicable crime,205 the Nordic arrest warrants (NEAWs) are based on the sentencing frames of the issuing state.206 The general rule in the AWA instead is that arrest following a NEAW shall be complied with unless it is obvious that the request for surrender will be refused.207 There is, in other words, a presumption that arrest is upheld. The other applicable CPA rights related to arrest apply, for example, to the court’s assessment of the conditions of arrest, of the likelihood of evasion or obstructing surrender and of possible alternatives to keeping the subject in custody.208 Both the court and the prosecution authorities must consider the general necessity and proportionality requirements following any coercive measure in criminal cases.209 The necessity condition will mostly be met, given the mere presence of a NEAW. There may, however, be personal circumstances that make apprehension or arrest not proportionate, for example relating to health or age. A notable difference from domestic cases is where the foreign state requests a recording of evidence. Unless expressly asked for by the requesting state, the person concerned is not informed of the request, nor does he or she have the right to a transcript of the recorded evidence.210 The Supreme Court has held that the suspect’s right to access to the information is regulated by the law of the requesting state in these cases.211 This differs from the Criminal Procedure Act,212 which gives 202

Extradition Act Section 24 no.1. Section 24. 204 Section 46. 205 CPA Section 171. 206 Art. 3 no. 1. 207 AWA Section 13 § 1. 208 AWA Section 13 § 3. For the intra Nordic arrest cases, the AWA also makes an exemption from the habeas corpus right: The court decides upon custody without the wanted person present when she is of 18 + years, agrees to surrender, and the prosecution authorities consider that the surrender will take place within a week from the consent is given (Section 13 § 4). She may, however, demand habeas corpus. The regulation is in line with ECHR Art. 5 no. 1 litra f. 209 Section 13 §§ 1 and 3, cf. CPA Section 170a and the Constitution Section 94 § 1. 210 The Regulation Section 8 and the Act of the Courts of Justice Section 46. 211 See the Supreme Court decision in Rt-1997-1421. 212 Section 242. 203

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suspects in domestic cases a general right to acquaint themselves with the documents of the case if this can be done without detriment or risk to the purpose of the investigation or to a third person.

7.3.1.1.2

The Relevance of EU Law

Norway is not an EU Member State but a European Free Trade Association (EFTA) state and an affiliated member of the Schengen cooperation. This means that many EU legal instruments are, in principle, relevant to Norwegian law only as long as they are so-called Schengen or European Economic Area (EEA) relevant. As long as the EFTA states are mutually obliged according to the ECHR and the EFTA courts’ view that the EEA Agreement must be interpreted in light of fundamental rights, both the Charter of the Fundamental Rights and the CJEU’s decisions concerning the Charter will affect the interpretation of the EEA and the Schengen Agreements in Norwegian law.213

7.3.2

The Applicable Legal Standards When Challenging Requests for Assistance

The possibility to challenge a request will depend on the nature of the request. If it is related to coercive measures, the person in question will not be informed beforehand and, as a result, will not have the opportunity to challenge it until after the measure has been carried out. Requests concerning the hearing of a witness abroad may be challenged by the charged person, for example following the Criminal Procedure Act,214 claiming that the evidence must be excluded, and/or because a deposition will delay the case to such an extent that it will entail a breach of the right to trial within a reasonable time.215 The point of departure is that a measure must be carried out in accordance with the law of the territory in which it is carried out. As international law, including the ordre public reservations, coexists with the other rules, the person can also invoke these rules when challenging the request. Allegations of breaches of ECHR rights are always tried by the court in all instances.216 Any relevant EU instrument may also be invoked, although its relevance to EEA, Schengen or rights under the ECHR must be established. A recent example of the CJEU practice establishing rights and

213

The reach of the Charter towards EEA law is discussed thoroughly by Haukeland Fredriksen (2013). 214 Section 272 § 1 litra c. 215 ECHR Art. 6. 216 Rt-1998-826.

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obligations for EEA states outside of the EU is the case I.N. of 2 April 2020 (C-897/ 19 PPU). In this case, the Court establishes that the so-called Petruhhin principle applies when an EU state considers the extradition of an EEA citizen to a third country and, thus, also when an EU/EEA citizen is considered extradited from Norway to a third state.217 In the Petruhhin case, the CJEU decided that any EU state that, as a point of departure, does not extradite its citizens and that receives a request for extradition of another EU citizen to a third state is obliged to confer with the charged person’s home state as to whether it wants to assume responsibility of the criminal proceedings and issue an arrest warrant.218 If such a warrant is issued, it takes precedence over the extradition request case.219

7.4

Pleading Requirements

The procedure for refusing or granting requests for cooperation is described above in Sect. 7.1.2.2. In general, there is a higher threshold for refusing requests for rogatory commissions than requests for extradition. Regarding requests for extradition, it is the courts and the Ministry of Justice that assess the pertinent conditions, for example, related to a risk of breaches of human rights. Both bodies make this assessment. In the arrest warrant cases, the courts consider the mandatory reasons for refusal, thereunder possible breaches of the ECHR. The public prosecution authorities (occasionally the Ministry of Justice) subsequently assess the facultative grounds for refusal, for example that the same case is being investigated in Norway. The public prosecution authorities or the Ministry do not as such consider the conditions that the court has determined. It is likely, however, that every body will be obliged to consider allegations of human rights breaches, given the fact that all these authorities as state bodies are obliged to secure human rights in their domains.220 The authorities all have an ex officio responsibility in assessing the requests. If the subject wants to invoke a reason for refusing cooperation, the procedure for challenging the request varies somewhat, dependent on the type of request. The procedures are presented above. The burden of proof lies with the party that challenges the decision, with a clear rule, however, that a subject is never required to prove her innocence. There may be different requirements for the strength of evidence to be

217

In such situations, the query is sent by the Ministry of Justice, when they have received a request for extradition that is not refused based on the Extradition Act Section 14 no. 1. The procedure in the cases where Norway is the home state is described in detail in the Director of Public Prosecution’s letter of 4 May 2020 441-004 AGR/neg. 218 Assuming the home state has jurisdiction in the matter. 219 CJEU, judgment of 6 September 2016, Case C-l82115 (Petruhhin). 220 Grøstad (2020).

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sufficient to be considered proof of the refusal. The burden of proving the risk of torture upon return in an extradition case, and even in regard to evidence transfer, for example, lies with the potentially extradited person, but the level of probability is not very high. In line with the applicable European Court of Human Rights practice, it is sufficient with a real risk that evidence upon which an extradition request (etc.) is based has been gathered in breach of ECHR Article 3.221 This is a lower level of probability than preponderance of evidence,222 similar to the practice concerning when effectuation of an expulsion or extradition will violate ECHR Article 3.223

7.5 7.5.1

Guarantees Given by the Requesting State (Zusicherung) Legal Nature, Requirements and Effects

If a request should not be granted because of risk of human rights violations, the requesting state can meet these concerns with a guarantee to treat the surrendered person in accordance with international human rights standards. Such guarantees may entail that risks of human rights breaches are considered sufficiently eliminated. In some extradition cases, the Ministry of Justice obtains guarantees, for example, that a death penalty will not be executed or that prison conditions are not in breach of ECHR Article 3. The Ministry considers whether the guarantee is sufficient and reliable, but this may also be assessed by the courts.224 An intra-European example is to demand that the extradited person will serve her potential sentence under conditions in accordance with the ECHR.225 The competence to set out such conditions follows the competence to refuse the request.226 In cases concerning judicial assistance, there is no tradition in Norwegian law to obtain guarantees. A request for a guarantee would be considered by the Ministry of Justice. It is further unknown whether the Ministry has ever been requested or has given such a

221

ECtHR, judgment of 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom), para. 273 (“real risk”) and EtCHR, judgment of 25 September 2012, Application no. 649/08 (El Haski v. Belgium) para. 88 (“risque réel”). 222 ECtHR, judgment of 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom), para. 274. 223 See e.g. ECtHR (Grand Chamber), judgment of 23 August 2016, Application no. 59166/12 (J.K. and others v. Sweden), para. 91. The use of evidence gathered abroad that is potentially violating Art. 3 is discussed in detail in Frøberg and Ugelvik (2019). 224 The Norwegian practice in in line with the applicable ECtHR practice, see ECtHR, judgment of 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom), paras. 187–189. 225 Discussed in Supreme Court interlocutory order in RT-2009-594, concerning extradition to Bosnia of suspected Bosnian war criminal, and HR-2019-729-U relating to extradition to Poland. 226 See above in Sect. 7.1.2.2.

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guarantee. It is further unknown to us whether a guarantee that Norway has accepted has been violated. However, if this would take place, the most likely reaction from Norwegian authorities would be to submit a protest via diplomatic channels.

7.5.2

Legal Remedies Against the Violation of a Guarantee

If employees from the police or prosecuting authorities have done something wrong, it is possible to report the matter to the National Bureau for the Investigation of Police Affairs (Spesialenheten). This complaint procedure exists mainly for complaints relating to individual officials and not to the decision as a whole. It is possible to sue the state of Norway for human rights violations in a civil lawsuit for damages due to the state’s wrongdoing, which may be either economic damages227 or non-economic damages, for example for permanent injury.228 There must be a basis for liability and a causal link between the damages and the state’s actions.

7.6

Effectiveness of Judicial Review

7.6.1

General Requirements for Effective Judicial Review

7.6.1.1

Information About the Request

When Norway is requested in extradition cases, it usually is for the court to decide if the terms to extradite are present. If the person in question agrees to the extradition, the decision is taken immediately.229 The person will be present at the hearing. Regardless of her presence, she and her counsel are given copies of the case files and are thus informed about the request. The charged person is also informed briefly about the case against him/her if she is apprehended and interrogated. If the person disagrees with the court’s decision on the extradition terms, she can appeal to the Court of Appeal (lagmannsretten) and the Supreme Court (Høyesterett). This system implies that the person receives information about the motion before the court rules on it. If the person has agreed to the extradition and the consent is not withdrawn, the public prosecutor processes the request instead of the court. If the public prosecutor finds that the request must be denied, the case is

227

The Damage Compensation Act Section 3-1. The Damage Compensation Act Section 3-2. 229 The Extradition Act Section 17 no. 2. 228

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sent to the Ministry of Justice via the Director of Public Prosecutions (Riksadvokaten).230 When collecting evidence through various coercive measures, the person involved is not informed. This is a consequence of the nature of the measure: if a person knows that she is being controlled, the surveillance would be pointless. The rules on information are the same as in Norwegian criminal procedure, for example the rules on delayed information.231 If the request concerns interrogation, the subject is informed about the case if he or she receives the status of a suspect or is charged.232 If the request is to obtain copies of Norwegian case files, verdicts or criminal records, the person in question is not notified by Norwegian authorities. In cases concerning the transfer of sentenced persons, he or she has the right to be informed by prison authorities of the procedure for and the effects of the transfer.233 The convict is entitled to written information on possible measures from the country of enforcement.234 She is, as shown above in Sect. 7.1.2.2.4, entitled to be present during court proceedings. In domestic Norwegian main hearings in criminal cases, a person may not be convicted in absentia in cases where the prosecution requests for imprisonment of 1 year or more.235 The court proceedings in transfer cases are carried out as ordinary first court instance main hearings. In transfer cases, the sentence (request) is often higher than 1 year, and the question arises whether the court may carry out the proceedings without the subject being present. Neither the Transfer nor the Validity Convention makes the subject’s presence in court an absolute condition.236 The European Court of Human Rights has ruled that the ECHR Article 6 does not apply to proceedings following the Transfer Convention.237 The issue of the subject’s presence in court is not specifically targeted at any of the preparatory works to the Transfer Act. It has been convincingly argued238 that it is more natural to consider the court sessions in the transfer cases similar to those concerning limited appeal.239 In these sessions, where the Court of Appeal (lagmannsretten) only reviews possible procedural errors or the application of law, the person charged is not present unless there are special grounds

230

The Extradition Act Section 17a no. 1. Criminal Procedure Act Sections 242 et seq. and 264. 232 See fn. 200 above. 233 The Supplementary Instructions on Transferring of Sentenced Persons Section 9. 234 The Supplementary Instructions on Transferring of Sentenced Persons Section 11. 235 CPA Section 281. 236 See the Transfer Convention Art. 11 no.2 and the Validity Convention Art. 43, and comments in Ot.prp. nr. 50 (1973-1974) to the former Extradition Act of 22 February 1974 no. 9 Section 4, pp. 23–24. 237 E.g. ECtHR, dismissal order of 25 September 2018, Application no. 2669/13 (Zhernin v. Poland), para. 25. 238 Grøstad (2020), ch. 17.6. 239 CPA Section 334. 231

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to do so.240 Neither in these cases nor in the transfer cases does the court review the question of guilt. In the transfer cases, the courts may merely rely on the facts from the foreign verdict to determine the proper sentence. The Transfer Convention also came after the Norwegian preparatory works comparing the sessions with main hearings. Good reasons, thus, call for not requiring the subject’s presence in court transfer proceedings, if this is difficult to attain. An exception is when the subject’s presence is necessary to shed light on questions that the court must assess. This will depend on the degree to which the foreign decision illuminates the case or whether other measures may be applied, such as digital examination of the subject or expert opinions. It would be contrary to the purpose of transfer if there would be an absolute condition of presence of the subject for the court proceedings to take place.241 The charged person will be informed by her counsel of the transfer case documents if she is not present in court.

7.6.1.2

Information and Access to Files

Generally, in the Norwegian criminal procedure, the actors obtain access to the case files.242 There are, however, different rules related to the different stages of the case. The right to access the files becomes more pressing as time passes, and the case is building up.243 When a person is indicted, access can only be refused if interests of national security or relations with another state are threatened.244 When it comes to evidence gathered following a foreign request, neither the defendant nor the aggrieved nor other persons have access according to Norwegian rules. The right to access is, however, regulated by the rules of the requesting state.245 This also follows from the mere fact that there are no Norwegian criminal proceedings to ask for access into when the Norwegian authorities’ measures merely entail contribution to another state’s investigation.246 The same applies to access to the request itself, with attachments.247 If the request for evidence gathering concerns the interrogation of a suspect, however, she is entitled to information on the ground of suspicion.

240

For court sessions where only the sentencing or another penal reaction is reviewed, the person’s presence is not required unless found necessary. The person charged is never called to Supreme Court sessions. 241 Grøstad (2020), ch. 17.6. There is no final clarification of this question in court practice. 242 The Criminal Procedure Act Sections 28, 242, 264 and 267. 243 Prop 147 L (2012-2013) point 4.2.1. 244 The Criminal Procedure Act Section 264 fourth paragraph. 245 Rt-1997-1421. 246 Grøstad (2020), ch. 14.5. 247 Ibid.

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Suspensory Effect of a Remedy

Decisions to grant coercive measures are made by the court without a contradiction from the suspect. Hence, when the court has processed the case, it either gives the police permission to carry out the measure or not. The charged person is informed in line with the ordinary rules on notification under the Criminal Procedure Act; the exceptions related to delayed notification likewise apply.248 A complaint in an extradition case has a suspensory effect.249 A decision from a court to extradite may be enforced when it is final,250 which means after the threeday deadline to appeal has expired.251 If the decision is appealed, a person is not extradited until the court has processed the appeal. Cases relating to transferring of a sentenced person are treated in accordance with the rules in the Criminal Procedure Act.252

7.6.1.4

Suspensory Effect on Cooperation

There are no rules in Norwegian law on whether the challenging of requests have a suspensory effect on cooperation. Unless the requesting authorities have withdrawn or suspended the request pending the requested state’s final decision, it is unlikely that such an effect would follow. The authority that is to effectuate (court or public prosecution authorities) or grant (the Ministry) the requests may, however, decide to delay the effectuation pending a necessary decision or additional information from the requesting state. There are various consequences in the case that international cooperation has been declared inadmissible before execution. If a person is acquitted, the prosecution of the case is cancelled. If the person has been arrested or detained during the process,253 it is also possible to claim recovery for non-economic damages.254 The compensation amount is standardised to 1500 NOK255 per day of wrongful detention.256 For other consequences than detention, the Ministry of Justice has the discretion to give compensation.257

248

Criminal Procedure Act Sections 242 et seq. and 264. The Extradition Act Section 18 no. 4. 250 The Extradition Act Section 19. 251 The Extradition Act Section 17 no. 3. 252 See The Act on Transferring of Sentenced Persons Section 14. 253 ECHR Art. 5 or UN Convention on Civil and Political Rights Art. 9. 254 The Criminal Procedure Act Section 447. 255 Approximately 150 EURO. 256 The Regulation on Reparation for Unlawful Prosecution Section 2. 257 Relevant factors are what measures the police have used, as well as the extent of media coverage. See for example Rt-2012-1615. 249

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Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

Anyone charged with a criminal offence has the right to a defence counsel paid by the state.258 There are a few exceptions related to the nature and severity of the case,259 but these do not include cases with international aspects. The right to a defence lawyer applies to cases concerning extradition,260 during the gathering of evidence,261 and cases related to the transfer of sentenced persons.262 The court normally appoints the counsel for the charged person,263 but the prosecutors appoint the lawyer in cases related to collecting of evidence or when the charged person is arrested. If the suspect requests a specific lawyer, the latter is appointed unless it will lead to a significant delay of the case.264 There is no established practice related to getting a lawyer in the foreign state. This will depend on the rules of the foreign state. In criminal cases, the state covers the cost of interpretation of documents produced in the hearings. This also applies to extradition cases265 and cases concerning the transfer of sentenced persons.266 The documents that are given translation are those necessary for the defendant to protect her interests in the pertinent case.267 Of other procedural support available in international cooperation, one example is that provided by the Control Committee for Communications Monitoring (Kontrollutvalget for kommunikasjonskontroll). The Committee, as before mentioned, exists to oversee the police and prosecutors in cases concerning communications monitoring. The Committee’s function is to evaluate if the communications monitoring, surveillance and data reading performed by the police are in accordance with the legal framework.268 They assess complaints from persons or organisations that claim that they have been controlled unlawfully. People outside of Norway could file a complaint to the Committee even if the control happened in another country, as long as the Norwegian police performed the control.

258

The Criminal Procedure Act Chapter 9. See for example the Criminal Procedure Act Section 96. 260 The Extradition Act Section 16. 261 The Criminal Procedure Act Section 97. 262 The Act on Transferring of Sentenced Persons Section 16. 263 The Criminal Procedure Act Section 102. 264 The Criminal Procedure Act Section 102. 265 The Extradition Act Section 16 no. 2. 266 The Supplementary Instructions on Transferring of Sentenced Persons Section 11. 267 The Regulation on the Public Prosecution (FOR-1985-06-28-1679) Section 2-8. 268 The Criminal Procedure Act Section 216 h. 259

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Ineffectiveness of Ex Post Facto Judicial Review?

If Norway has requested cooperation and is later on informed that the granting of legal assistance or execution was declared illegal by the courts, the transmitted information may in principle still be used in criminal proceedings as evidence. There is no general prohibition against the use of illegally gathered evidence. It is up to the discretion of the prosecutor and the courts to make a concrete assessment in every case. A significant factor in the assessment is the kind of illegality that is present. The public prosecution authorities must ex officio refrain from charging a person based on evidence presumed illegally gathered, that is in a manner that would cause it to be excluded in court. Norwegian investigation and prosecutorial decisions are subject to the guarantees and principles of the rule of law and fair trial, irrespective of where they are carried out. The court may order the police or prosecution authorities to delete the material in question where evidence is collected unlawfully.269 There is no reason to believe that this would be different if the material in question was collected illegally by foreign authorities. The order may, following jurisdictional principles, only be directed at the Norwegian authorities’ possession of the material. As to any obligation to request information following the execution of a request, there is no tradition of making reservations in or conditions on the transfer of information or persons. This will most likely vary and depend on the agreement between Norway and the cooperating state.

References Bergo K (2000) Høyesteretts forarbeidsbruk. Cappelen, Oslo Fredriksen HH (2013) Betydningen av EUs pakt om grunnleggende rettigheter for EØS-retten. Jussens Venner 48:371 Frøberg and Ugelvik (2019) Utenlandske bevis som kan være innhentet ved bruk av tortur eller umenneskelig eller nedverdigende behandling: Når er bevisavskjæring påkrevd av hensyn til EMK art. 6?. In: Sæther KE, Torgersen R, Stridbeck U, Kvande K (eds) Festskrift til Tor-Aksel Busch, vol 219. Cappelen, Oslo Grøstad A (2020) Internasjonalt strafferettslig samarbeid. Cappelen, Oslo Holmøyvik E, Einarsen T (26 March 2020) Feil avgjørelser til feil tid: Høyesteretts nylige Polenkjennelser. Available at https://rett24.no/articles/feil-avgjorelser-til-feil-tid-hoyesteretts-nyligepolen-kjennelser [12.05.2020] Mathisen G (2009) Utlevering for straffbare forhold. Gyldendal, Oslo Mathisen G (2010) Nordic cooperation and the European arrest warrant: intra-Nordic extradition, the Nordic arrest warrant and beyond. Nordic J Int Law 79:1 Ruud M, Grøstad A, Egseth LC (2019) Utleveringsloven og arrestordreloven, Lovkommentar. Universitetsforlaget, Oslo 269

See for example the Supreme Court decision in Rt-2014-1105, where the court instructed the prosecutors to delete all the material from communications monitoring where a specific person participated in the conversations.

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Stoltenberg H (2019) Hva er Eurojust? Muligheter og utfordringer i straffesaker med internasjonale forgreininger. Tidsskrift for strafferett 19:399 Ugelvik S (2019) Police cooperation and sovereignty: Norway’s lessons for Europe. Routledge, London

Synnøve Ugelvik Associate Professor, Department of Public and International Law, University of Oslo, Norway. Hedda Larsen Borgan Trainee Lawyer, Sulland Law Firm, Oslo, Norway. Andreas Dalaker Higher Executive Officer, Office of the Norwegian Parliamentary Ombudsman, Oslo, Norway.

Chapter 8

Country Report “Portugal” Miguel João Costa and Pedro Caeiro

8.1 8.1.1

Overview Judicial Protection in the Criminal Justice System

Article 20 of the Portuguese Constitution1 provides that everyone has the right of access to law and the courts in order to obtain protection for their rights and legally protected interests. This provision also establishes that insufficiency of economic means cannot preclude the enjoyment of this right. Moreover, it guarantees the right to legal information and counselling, including the right to be accompanied by an attorney before any public authority.2 According to this key constitutional norm, everyone involved in judicial litigation has the right to a due process, which encompasses the right to have his/her cause decided within a reasonable period through an equitable process, and proceedings must be swift and established by ordinary law to secure the timely protection of fundamental rights, freedoms and guarantees of a personal nature, including the rights to life, personal integrity and freedom.3 Insofar as specifically concerns fundamental rights in criminal proceedings, the key constitutional norms are those contained in the following provisions. Firstly, Article 27 states that, as a principle, a person can only be deprived of liberty as a 1

Enacted through the Decree of 10 April 1976. On this provision, see: (i) from a constitutional standpoint, Canotilho and Moreira (2007), Artigo 20.; (ii) from a criminal procedure standpoint, Antunes (2017), pp. 36 f.; on the impact of EU law upon Portuguese criminal procedure, Costa (2015), pp. 61 f. 3 Enshrined in Articles 24, 25 and 27, respectively. 2

M. J. Costa · P. Caeiro (*) University of Coimbra, IJ, Coimbra, Portugal © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_8

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result of a judicial decision establishing his/her criminal liability or dangerousness.4 This rule is subject to some exceptions, including extradition proceedings.5 Secondly, Article 28 lays down the conditions in which a person can be placed in pretrial custodial detention, and Article 31 provides for the habeas corpus measure, which enables any person in the exercise of his/her political rights to request the Supreme Court to order, within 8 days, the release of a person who is deemed to be illegally deprived of liberty. A crucial provision on individual guarantees in criminal proceedings is Article 32: criminal proceedings shall comply with defence rights, including the right to appeal unfavourable decisions to a court of higher rank (although this right is subject to limitations).6 Moreover, it establishes the principle of presumption of innocence, the right not to be tried in absentia (which bears some exceptions as well) and the right to challenge inculpatory allegations. It also entitles the defendant (arguido7) to be assisted by an attorney of his/her choice and identifies the procedural acts (such as judicial inquiries) where such assistance is mandatory. Very importantly, this provision commands that no penal case shall be tried by a court other than the one that was legally determined as competent for trying the case at hand ( juge naturel) and that investigative measures must be ordered or at least authorised by a judge in cases affecting fundamental individual rights. At this point, it seems useful to outline briefly essential features of on the status of the defendant in criminal proceedings as it is relevant for understanding the set of rights and duties of individuals targeted by cooperation proceedings (notably by extradition). As a matter of fact, the defendant and the extraditee are, to an extent, in a similar position and, although judicial cooperation is regulated autonomously by the Law on International Cooperation in Criminal Matters (LICCM), the Code of Criminal Procedure (CCP) applies in a subsidiary manner.8 As a consequence, some of the rules of the CCP on the defendant can apply to the extraditee. It is crucial to describe the concept of arguido because it is an fundamental part of and a somewhat distinctive notion in the Portuguese criminal procedure. The suspect of a crime, as such, does not have any formal status in Portuguese criminal procedure, meaning that he/she does not have any special procedural right or duty. Only the formal designation of a person as a subject of the procedure—an arguido—gives rise to such rights and duties. Consequently, that procedural act is of paramount importance for the individual, which is why the moment and the conditions of such act are regulated in great detail in the CCP.9 Authorities shall designate a person as 4

A criminal penalty cannot be applied in the absence of guilt/blameworthiness, but the perpetration of a criminal act together with the criminal dangerousness of the offender may lead to the application of a security measure. 5 Article 27 (3) (c). 6 See notably Article 400 of the Code of Criminal Procedure (CCP), and, e.g., the rulings of the Constitutional Court no. 186/2013, of 4 April, and no. 101/2018, of 21 February; on the topic, see Lemos (2010), p. 923 f. 7 For further details, see below. 8 See Article 3(2) of Law no. 144/99, of 31 August (LICCM). 9 More specifically in Articles 57 f.: on this, see Caeiro and Costa (2012), pp. 550 f.

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arguido in the circumstances set by law, namely when there is an inquiry where a certain person is suspected of having committed a crime, and he/she makes a statement before a judicial or police authority. Moreover, any person may request to be designated as arguido if he/she is suspected of having committed a crime and measures are being taken that personally affect him/her. When designating someone as an arguido, authorities must inform such person about the rights inherent to that procedural role and, if necessary, explain them to him/her.10 The arguido status remains until the end of the respective criminal procedure. In addition to the rights that are conferred on any person, an arguido is specifically entitled to a set of rights which are part of a single fundamental right of defence, guaranteed by Article 61 (1) of the CCP (some of which, as noted, bear constitutional strength), namely (a) to be present in all procedural acts of direct concern to him/her; (b) to be heard; (c) to be informed of the acts that are imputed to him/her; (d) to remain silent; (e) to appoint a lawyer or request that one be appointed to him/her; (f) to be assisted by a defence lawyer in every procedural act in which he/she takes part and, if arrested, to communicate with him/her in private; (g) to intervene in the investigation phases of the procedure,11 e.g. by providing evidence or requesting that investigative measures be conducted; (h) to be informed of the rights springing from this status; (i) if he/she is a minor (below 18 years old), to be accompanied in any procedural act that he/she is to attend by persons who exercise parental responsibilities over him/her, by his/her legal representative or a person who holds his/her factual guardianship or, if the former cannot be reached or special circumstances concerning his/her best interest so require, by another adequate person indicated by him/her and agreed to by a competent judicial authority; and (j) to appeal the decisions that personally affect him/her. Conversely, an arguido is bound to certain specific duties, which are set out in Article 61 (3) of the CCP, namely the following: (a) to be present before a judge, a magistrate of the Public Prosecutions’ Office (PPO) or a police officer when imposed by law and upon being duly summoned to do so; (b) to be truthful about his/her identity and, in certain cases,12 about his/her criminal record; (c) to be subjected to investigative measures aimed at gathering evidence and to coercive measures and patrimonial warrants aimed at securing his/her presence at the trial (inter alia); and (d) to be subjected to a coercive measure called “statement of identity and residence” (termo de identidade e residência), which involves a duty not to change residence and not to be absent for more than five days without notifying the authorities, failure to comply with which may give rise to a trial in absentia.

10

If a person 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: Articles 61 (1) (h), 141 (4), 143 (2) and 144 (1) of the CCP. 11 On the pre-trial phases of Portuguese criminal procedure see further below. 12 E.g. in all the interrogations to which he/she may be subjected: see Articles 141 (3), 143 (2) and 144 of the CCP.

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It is also appropriate for the purposes of this section to outline briefly the pre-trial phases of Portuguese criminal procedure as they are paradigmatic of some general conceptions of judicial protection in criminal matters at both legal and institutional levels:13 in Portugal, a standard criminal procedure has two pretrial phases: inquérito (inquiry)14 and instrução (instruction).15 Inquiry begins with the investigation of the crime and concludes with a decision by the PPO on whether or not to prosecute. A decision to prosecute constitutes 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”.16 Instruction is the assessment by a judge of the decision to prosecute or not to prosecute taken at the end of the inquiry. The aim of such an assessment is to ascertain whether or not there is a reasonable prospect of conviction, taking into account the evidence available. This phase is optional: it will only take place upon request by certain procedural subjects, notably the arguido. It comprises any measures deemed important by the judge (which may include further investigative measures) and a mandatory oral debate with the participation of the PPO and the arguido (and possibly other procedural subjects, such as the victim). After the debate, the judge decides whether or not the arguido is to stand trial. Going back to Article 20 of the Constitution, as a general provision on the right of access to law and the courts (tutela jurisdicional efectiva), it applies not only to domestic but also to transnational cases. In addition, the Constitution specifically addresses extradition and expulsion in Article 33 and provides, inter alia, that they can only be ordered by a court.17 Insofar as concerns expulsion, this rule may know exceptions in the context of EU cooperation;18 in contrast, in the case of extradition, it cannot be set aside. Extradition proceedings are branded by many as a “special” type of criminal proceedings, in the sense that they have much in common with the latter. The problem, of course, is to determine how peculiar they are: are they so peculiar as to do away with most principles of criminal law and procedure, or should these still apply? Wherever we draw the line, it is clear that extradition is a harsh measure to the requested person and that some of the guarantees originally developed for criminal law must, to a large extent, apply. And while the Portuguese legal system does not explicitly equate the two types of proceedings, this is the view underlying the entire set of norms that regulate international cooperation at the

13 For a detailed depiction, in English, of the Portuguese pre-trial criminal procedure, see Caeiro and Costa (2012), pp. 540 f. 14 Articles 262 f. CCP. 15 Articles 286 f. CCP. 16 Dias (1974), p. 144. 17 On this rule, see Canotilho (2002), pp. 658 and 662; and Costa (2014), pp. 20 f. 18 See Article 33 (5) of the Constitution.

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internal level,19 which should also help to explain why the CCP applies to it in a subsidiary manner.20

8.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

The main bodies of the state involved in cooperation proceedings are the same as those involved in criminal proceedings—sc. the police, the PPO and the courts— and, additionally, the Minister of Justice. Naturally, the competence of those bodies differs from one context to the other. However, in essence, they do perform functionally similar roles in both cooperation and criminal proceedings: (i) In cooperation proceedings, the police may be called into play in order to enforce the arrest of a person. (ii) As in criminal proceedings, in cooperation proceedings, the Public Prosecution’s Office in a sense connects the activity of the police with that of the judicial branch—e.g. ordering the police to execute the arrest warrant issued by the court and bringing the arrested person before the court in order for him/her to be heard by a judge within 48 h.21 Also as in criminal proceedings, the PPO’s activity abides by the principle of objectivity (à charge et à décharge), such that it will not necessarily plead towards the deferral of the cooperation request if it believes that the request should be refused (e.g. because the person concerned has already served a sentence for the same acts: ne bis in idem as a ground for refusal).22 Finally, as in any of its activities, the PPO acts in representation of the Portuguese state,23 in this instance by furthering the state’s interest in international cooperation. It also represents the interest of the requesting state (which is not a subject of the proceedings)24—if this is compatible with the applicable legal framework and is authorised by the

19

Implying this understanding, see also Dias (1985), pp. 14 f. See notably Article 3 (2) LICCM, and Articles 16 (6), 17 (4) and 34 PT-EAW. 21 See Article 53 LICCM. 22 See Law no. 68/2019, of 27 August, which establishes the Statute of the PPO (SPPO). The objectivity and autonomy by which the PPO abides leads to its qualification as a ‘judiciary authority’, placing it closer to the judicial function stricto sensu than to the administrative function: see Dias (1995), pp. 354 f. and 8 f. 23 See Article 2 of the SPPO. 24 See, on the high-profile case of Abu Salem’s extradition from Portugal to the Republic of India (also infra Sects. 8.5.3 and 8.6.1.3), the ruling of the Constitutional Court no. 360/2012, of 5 July; the ruling of the Court of Appeal of Lisbon of 14 September 2011; and the rulings of the Supreme Court of 21 October 2011 and of 13 December 2011, no. 130/11.3YFLSB. 20

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Minister of Justice—,25 by promoting the granting of the extradition request and appealing a decision not to grant it.26 This prevents judicial cooperation from becoming a platform for interstate litigation, with inherent diplomatic implications. All the proceedings—both classic and mutual recognition—are streamlined, with the PPO (the Attorney-General’s Office, to be more specific) operating as a central authority.27 (iii) Apart from the PPO’s duty to act à charge et à décharge, it is the courts that bear the main responsibility for providing judicial protection. As noted above, the Constitution itself imposes that certain transnational measures be ordered by a court. In cooperation proceedings, the courts that function as courts of first instance are those that in criminal proceedings function as courts of appeal (High Courts): they are called Tribunais da Relação, and there are five of these in the country.28 In turn, the court to which decisions on cooperation requests can be appealed is the Supreme Court of Justice (Supremo Tribunal de Justiça),29 which in criminal proceedings can only intervene in particularly serious or otherwise extraordinary cases. In the context of the European arrest warrant, common courts can issue warrants.30 (iv) The executive branch has no intervention in criminal proceedings. The Portuguese PPO enjoys clear institutional and functional autonomy vis-à-vis the executive branch, including the Minister of Justice, meaning that it cannot be given instructions on how to proceed, either in the abstract or in relation to a given case. Its activity is strictly bound by criteria of objectivity and legality31 and by statutes that define the criminal policy priorities for a given time span.32 In contrast, the executive branch plays a key role in cooperation proceedings because the Minister of Justice has the power to veto cooperation requests:33 if the request is deemed politically untenable, or manifestly ill-founded, it will not

25 Who is also the competent authority for requesting the participation of Portugal in an extradition procedure taking place in another State): see Articles 47 and 69 (4) LICCM. 26 Unless it believes, as noted, that the request should not be granted. See Article 58 (1) LICCM. 27 See Article 21 (1) LICCM and e.g. Article 9 of PT-EAW. 28 From North to South: Guimarães, Porto, Coimbra, Lisboa and Évora. On the Portuguese judicial organisation, see Law no. 3/99, of 13 January. 29 Which sits in Lisbon. 30 According to Article 36 of the Portuguese Law on the European Arrest Warrant (Lei no. 65/2003, of 23 August: PT-EAW), competence for issuing EAWs belongs to the authority competent for ordering the detention or the arrest of the person in the context of the national criminal proceedings that give rise to the European arrest warrant. 31 See Articles 2 and 3 SPPO. 32 Currently, Law no. 96/2017, of 23 August, which applies to the biennial 2017–2019 and assigns priority to the prevention and investigation of such offences as terrorism, cybercrime, trafficking of human beings, forest arson and domestic violence (Articles 2 and 3). 33 Article 21 (2) and (3) and Article 24 LICCM.

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be granted, even if no legal grounds for refusal are met in the case.34 Thus, in line with most contemporary systems of cooperation in criminal matters, the Portuguese system is mixed and comprises two different, successive phases:35 the first is mainly political and consists of an assessment by the Minister of Justice as to whether the request should be refused outright in the light of the political circumstances of the case or can instead proceed to the judicial phase, which requires a court to assess whether all legally prescribed conditions necessary for cooperation to be granted are satisfied.36 Although the law does not explicitly provide so, most literature holds that a second intervention by the executive may take place (only with a view to refusing the request)37 in case of a supervening change in political circumstances,38 at least in exceptional situations such as the eruption of a war between Portugal or one of its allies and the requesting state. The Minister of Justice may reject extradition based on virtually any reason considered to be politically relevant or on the basis of opportunity or convenience;39 nevertheless, it has been argued that the interests being protected with the refusal should have constitutional rank.40 The Minister of Justice is also the competent authority for issuing cooperation requests,41 save for mutual legal assistance (where direct contact between judicial authorities is admissible)42 and warrants issued on the basis of EU instruments on judicial cooperation, such as the European arrest warrant. In the context of criminal proceedings, any measure that interferes directly with fundamental individual rights must in principle be ordered, authorised or validated by a judge,43 and in such cases “judicial review” is unnecessary, as the decision is 34

See Caeiro (2004), pp. 124 f. Insofar as concerns extradition, see Articles 46 f. LICCM. 36 The only ground for refusal the appraisal of which seems to be an exclusive competence of the Minister of Justice is the general reciprocity clause regulated in Articles 4 and 6 (4) LICCM: see the Preamble of the Decree-Law no. 43/91, of 22 January (which preceded the LICCM); the ruling of the Court of Appeal of Lisbon of 4 January 2004, process 3880/2003-3; Rocha and Martins (1992), p. 29; and Serrano (2000), p. 38. 37 Given, again, the constitutional principle that extradition can only be granted by a court. 38 See Caeiro (2004), p. 124 f. 39 The decisions of the Executive in extradition and other cooperation proceedings are not easily accessible, which makes it rather difficult to provide a clear-cut picture of the reasons which are brought up by the Minister of Justice when he/she refuses such requests. 40 See Rocha and Martins (1992), p. 24. 41 Cooperation requests issued by the Portuguese State are triggered by the Attorney-General, who informs the Minister of Justice of the necessity to issue a cooperation request, and then it is for the latter to submit the request to the foreign State (see Article 21 (3), and, specifically on extradition, Article 69, and Figueiredo (2015), p. 11 f., thereon). This does not apply to cooperation in the EU, where judicial authorities contact each other directly, even for the execution of a European arrest warrant. Based on Article 165 LICCM, the Minister of Justice may in any case delegate in the Attorney-General the competence to request extradition or the enforcement of a Portuguese sentence in a foreign State. 42 Article 21 (3) and (4), and, with regard to extradition, Article 69 (1) LICCM. 43 Articles 268 and 269 CCP. 35

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inherently judicial. Still, such decisions can be appealed before a higher court whenever the law does not provide otherwise.44 In cases where a different authority (notably the PPO) can order, authorise or validate a procedural measure (e.g., an investigative measure), there is no direct judicial review of the measure because the PPO has autonomy in the direction and supervision of the inquiry. Nevertheless, the validity of those measures can be challenged before the investigative judge when (and if) the phase of instruction is requested, or later at trial. In transnational proceedings, it may be said that judicial protection will often come into play only after a decision that affects individual rights has been taken. However, there are instances where such protection is granted before that moment. This is quite visibly the case of the waiver of the speciality rule by the Portuguese state, which requires the concerned person to be heard beforehand;45 waiver of this rule by the person, on the other hand, will only be valid if expressed before a judge in the presence of an attorney (if necessary appointed ex officio).46 Another example is the case where, for urgent reasons, a state requests the arrest of a person before even issuing an extradition request: in this event, the arrest will abide by the general rules of Portuguese criminal procedure for internal situations, with the consequence that, as a principle, it will have to be ordered by a judge.47 Other procedural acts must be followed shortly by judicial review. For instance, upon being arrested by the police pursuant to an extradition request, the person must be brought before a judge within 48 h in order to be heard,48 and the judge may decide to apply a non-custodial measure during the pendency of the extradition proceedings.49 The decision to

44

Articles 399 and 400 CCP. Article 16 (4) (b) LICCM. 46 Article 17 (2) LICCM. Similar rules apply to the case where the person consents to being extradited: see Article 40 (1) and (2) LICCM, and, in legal literature, Veiga (2012), p. 600 f. 47 See Caeiro and Costa (2012), pp. 551 f. In the Portuguese extradition system, a person can be arrested: (i) if his/her extradition has been requested and the judge who is competent for deciding whether the request is prima facie viable (note that this is not an evidentiary requirement akin to the ‘prima facie case’ typical of Anglo-American systems of extradition, but only an ascertainment as to whether or not the extradition request contains ‘sufficient elements’ to be decided by the court) decides that it ought to proceed to the hearing phase (Articles 51 and 52 LICCM). (ii) Arrest is also possible in the urgent cases mentioned in the text (Article 38 LICCM). (iii) On the other hand, according to Article 39 LICCM, even before any sort of request has been made, the criminal police can arrest persons that, according to official information (e.g., provided by Interpol) are sought by foreign authorities for a crime which notoriously justifies extradition. This ‘provisional unrequested arrest’ was ruled not to be unconstitutional by the Constitutional Court in ruling no. 228/97, of 12 March (in www.tribunalconstitucional.pt, as all other rulings of the Constitutional Court mentioned in this article), on the corresponding Arts 38, 65 and 66 of Decree-Law no 43/91 of 23 January (which preceded the LICCM). (iv) A person can also be arrested when a European arrest warrant has been duly issued (Article 16 (5) PT-EAW), and the arrest shall comply with the provisions of the CCP on arrest (Article 16 (6) PT-EAW). 48 Articles 53 (1) and (3) LICCM; on the several forms of arrest / detention and the issues they raise, see Souza and Oliveira (2015), pp. 115 f. 49 Articles 38 (6) and 41 LICCM. 45

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extradite can be appealed,50 as can the decision to enforce a foreign sentence in Portugal.51 The decision to grant a request for legal assistance (e.g. for evidence gathering purposes) cannot be appealed, but the procedural act into which the assistance translates (e.g. the search of certain premises) can be appealed if this possibility is available in the context of national criminal proceedings.52 Article 2 (2) of the LICCM contains a meaningful disclaimer: in the absence of regional or international norms creating a duty to cooperate (notably, based on legal instruments such as the European arrest warrant and international treaties on extradition and other cooperation mechanisms, such as the delegation of criminal proceedings), Portugal does not hold itself bound to cooperate with other states in criminal matters. Nevertheless, it is visible in Portuguese case law that cooperation is often granted to states with which there is no applicable treaty. In fact, LICCM is rather cooperation-friendly as it admits cooperation in the absence of a treaty and, if certain circumstances are met (namely that extradition is desirable in view of the nature of the acts or the necessity to combat certain types of serious criminality), even in the absence of ad hoc reciprocity guarantees.53 In sum, Portugal has no duty to cooperate in the absence of a treaty, but a treaty is not indispensable for Portugal to cooperate.54

8.2

Subject Matter of Judicial Control

8.2.1

The General Framework of International Cooperation in Criminal Matters

8.2.1.1

International and Internal Dimensions of the Granting Decision

Both the “international dimension” of a cooperation request (viz. the decision whether or not to grant the request) and its “internal dimension” (viz. the measures necessary to execute the request, such as arrest and detention, search and seizure, actual surrender) are part of the same proceedings, which includes an administrative phase (in the hands of the Minister of Justice) and a judicial phase (the courts and the PPO).55 From a different perspective, there is some normative autonomy between the international dimension and the internal dimension, in the sense that the former

Articles 49 (3) and 67 (4) LICCM. Only the targeted individual and the PPO can appeal a final decision on a request for cooperation: see notably Article 58 LICCM. 51 Article 146 (1) LICCM. 52 Articles 399 and 400 CCP. 53 Rocha and Martins (1992), p. 29; Colaço (1997), p. 648. 54 See Costa (2019a), pp. 299 f. 55 See supra Sect. 8.1. 50

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abides by rules explicitly drafted for cooperation proceedings, whereas the latter is often regulated by reference to the norms that apply to the measures at stake (e.g. arrest) in national criminal proceedings.56 Still, in such cases, the cooperation statute regulates some specific issues that are relevant for cooperation matters only.57 Usually, those measures require explicit authorisation, which constitutes something of a cooperation request within a cooperation request. Depending on the measure, authorisation may be given by the Minister of Justice (e.g. when the measure at issue involves the activity of a foreign authority in Portuguese territory, which evidently touches upon national sovereignty)58 or by a judicial authority (when it involves a deviation from Portuguese law, which raises constitutionality and legality issues).59 Judicial control of the decision of the executive is limited. If the Minister of Justice refuses cooperation, this decision must be reasoned, but it cannot be appealed.60 If the Minister of Justice decides that the request is admissible, the law is not explicit as to whether or not that decision is subject to appeal. In such a situation, the request proceeds to the judicial phase, and, in this sense, there is still one instance of “judicial review”. However, the decision of the court does not consist of re-examining the political decision. The two decisions have different purposes and scopes: as noted before, while the executive evaluates the political convenience of cooperating, the court assesses whether the request complies with the legal conditions for cooperating.61 Thus, the scope and type of challenge to which

56

See e.g. Articles 38 (2) and 145 (1) LICCM. Some examples, in the context of mutual legal assistance: (i) Article 145 (3) and (5) LICCM prescribe that the interrogation of a suspect may be carried out by the foreign State itself, whether through video-link or in presence. (ii) More generally, foreign authorities may be authorised to enter Portuguese territory to carry out procedural acts, and the creation of joint investigation teams is possible (see Articles 145 (5) and 145-A LICCM). (iii) Controlled deliveries are also admitted, based on Article 160-A LICCM, which brings the Portuguese cooperation system into conformity 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. On a case-by-case basis, the PPO can authorise the criminal police to refrain from any action within the context of cross-border criminal investigations, in order to establish, in cooperation with one or more foreign states, the identity and criminal responsibility of the greatest possible number of perpetrators of an offence. This measure can apply to the investigation of any offence which could give rise to extradition, with respect to any kind of goods or money. The right to act and the direction of criminal operations remain in the hand of Portuguese authorities. Operational assistance by foreign (judicial and police) authorities may however be authorised by the Minister of Justice. (iv) On the other hand, while these measures are generally carried out in application of Portuguese law (locus regit actum), they may be carried out in compliance with the legislation of the requesting State ( forum regit actum), so that it holds valid in the criminal procedure running its course in that State (Article 146 (2) LICCM). 58 Articles 145 (5) LICCM, and 160-A. 59 Articles 146 (2) and (3) LICCM, and 160-A. 60 Article 42 (2). 61 Although the powers of the Executive in cooperation matters are inherently discretionary, some authors submit that a decision of the Minister of Justice declaring extradition admissible—in spite 57

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cooperation decisions are open depend not on whether they concern the international or the internal dimension of a case but rather on whether they are taken by the Minister of Justice or the courts. The executive decision does mainly concern the international dimension, but it can (and arguably shall) also take into consideration the interests of the individual, such that the executive will often immediately block some requests based on individual-oriented grounds for refusal rather than leave this for the judicial branch later on in the procedure. Conversely, the judicial decision does mainly concern the internal dimension, but it also pays attention to international aspects, notably to ordre public concerns. In fact, in the Portuguese legal system, several or even most grounds for refusal protect at once international and internal interests (e.g. the prohibition to extradite where there is a risk of the individual being tortured or sentenced to death).62

8.2.1.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

In Portugal, as in most states, no evidence of criminal liability is required for cooperation to be granted, and, in this sense, it is a merely “formal” (as opposed to “substantive”) system of cooperation.63 When deciding on a request, judicial authorities can apply not only Portuguese law but also international and European law and even the law of the requesting state.64 The law of Portugal as a requested state applies both directly and indirectly: (i) directly because, obviously, its grounds for refusal will apply to the case, rendering the request admissible or inadmissible. Grounds for refusal may have constitutional rank or result from ordinary law: the essential difference is that the latter, unlike the former, can be set aside by an international law provision to the contrary, since (general and conventional) international law has primacy (Anwendungsvorrang) over ordinary law.65 On the other hand, one must distinguish between mandatory and optional grounds for refusal: the former admit no discretion and impose the refusal of the request, whereas the latter leave the assessment of the situation to the judicial authorities.66 In the realm of traditional cooperation, there is

of political or administrative reasons being met that would manifestly justify refusing the request— can be challenged before an administrative court: see Article 24 (2), a contrario, and Costa (2014), pp. 23 f. 62 Caeiro (1998), pp. 157 f. 63 Art. 46 (3), in fine, LICCM. See Correia (1963), p. 187. 64 On the standards applicable to each of these normative sources, see further infra Sect. 8.3.1.1. 65 Article 8 of the Constitution. 66 Nevertheless, at least insofar as concerns the courts, the criteria based on which such optional decisions are to be taken should be identified pursuant to the normal process of interpretation of the law (see Articles 9 and 10 of the Civil Code), in such a way that, ultimately, the merits of the decision can be challenged, if the decision is open to appeal, which is often the case (see Articles 49 (3), 67 (4), 83 (8), 91 (5), 100 (7) LICCM).

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only one optional ground for refusal of a general nature: the case where Portugal has initiated or can/must initiate a criminal procedure based on secondary jurisdiction (e.g. passive nationality) over the same acts for which extradition is being requested—a positive conflict of jurisdiction in which one of the competing states is the requested state itself (aut dedere aut judicare stricto sensu).67 (ii) It also applies indirectly because penal and procedural norms are not seldom called upon to ascertain whether certain grounds for refusal are met: this is the case of dual criminality and the time-bar exception (which require the acts to be criminalised and still be possible to prosecute under Portuguese law), as well as of the concrete basis of jurisdiction being exerted by the requesting State (which may have to be equivalent to one established in the Portuguese legal system).68 In fact, it may be stated that the scope of most grounds for refusal is ultimately given by these substantive and procedural norms. They complement or give meaning to the norms on international cooperation which prescribe grounds for refusal as such. The law of the requesting state itself is also relevant for the decision whether or not to cooperate. For instance, extradition cannot be granted if, under the law of the requesting state, the acts are not criminalised,69 their prosecution is time-barred70 or there is no basis for exerting jurisdiction.71 The very notion of “cooperation in criminal matters” requires this evaluation, in that it does not make sense to cooperate towards the punishment of acts that are not even considered of a criminal nature in the requesting state or that it cannot otherwise punish—which is why this does not qualify as an interference in the affairs of other states.72 The law of the requesting state is also relevant for other grounds for refusal, such as those concerning the applicability of certain penalties (death, life imprisonment). Moreover, as in any system that upholds human rights and other paramount individual rights and interests, Portugal must also inquire into the practice and factual circumstances of the requesting state: the rise of fundamental rights in cooperation proceedings carried

67 See Article 18 (1) LICCM; thereon, Costa (2014). Article 18 (2) LICCM also entitles Portuguese authorities to refuse extradition where it may carry severe consequences for the person, considering his/her age, health condition or other personal factors, and the law explicitly conceives this ground for refusal as ‘optional’. However, the situations at issue here are arguably incompatible with a discretionary decision, as it is impossible to admit discretion with regard to such paramount values as life and health. Thus, if there is a demonstrated risk that extradition may entail the death of the person, it is impossible to choose between refusing extradition (due to that risk) and granting it (in spite of that risk): in both cases refusal should be mandatory. In this sense, this ground for refusal simply requires the ascertainment of whether or not one such risk is met in the case. The circumstance that the criteria for assessing the situation may be looser does not turn this decision into a discretionary one (see ibid., pp. 108 f.). 68 Unless it is shown that the State with territorial jurisdiction is not taking penal action on the acts at issue: Article 33 LICCM. 69 Article 31 (2) LICCM. 70 Article 8 LICCM. 71 Article 31 (1) LICCM. 72 Caeiro (2010a), pp. 355 f.; and Caeiro (2010b), pp. 366 f.

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with it the erosion of the classic rule of non-inquiry.73 Thus, as a general condition, Portugal does not cooperate in criminal proceedings that do not meet European Convention on Human Rights (ECHR) standards or are motivated by discriminatory reasons.74 In deciding whether or not to cooperate with another state, Portugal may also have to appraise the lawfulness of the request under international law.75

8.2.1.3

Direct and Indirect Review of the Decision (Not) to Request Legal Assistance

The decision to request cooperation from another state is not subject to judicial review. The unlawfulness of international cooperation can hardly be challenged because there are barely any norms regulating the conditions in which Portugal can issue a cooperation request. The lawfulness of the cooperation proceedings that took place in the foreign state cannot be challenged in Portugal either, but only in the courts of that very state itself. Nevertheless, in order for evidence gained by means of international cooperation to be valid in a criminal procedure being carried out in Portugal, it must comply with the Portuguese rules on evidence gathering, which can be outlined as follows. The Portuguese procedural system follows a mixed approach that might be considered close to the “fruit of the poisonous tree” theory or to the German Fernwirkung, but taking account of such aspects 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 ‘tree’”.76 The Constitution provides that evidence obtained through torture, coercion, physical or psychological harm and abusive intrusion in private life, domicile, mail or telecommunications is null;77 the CCP then sets out the consequences of illegally or improperly obtained evidence:78 (i) evidence obtained through torture, coercion or, in general, physical or psychological harm is null and cannot be used;79 this nullity is absolute, and the consent of the person is therefore immaterial. Evidence is deemed to be “harmful” if obtained, inter alia, through the following means: jeopardizing the individual’s free will through maltreatment, physical harm, administration of means of any nature, hypnosis or use of cruel or deceptive means; perturbation by any means of the capacity of memory or understanding; use of force beyond the legally allowed cases and limits; threat of execution of a legally inadmissible measure or of denegation or

73

See Costa (2019a), pp. 529, 564 f. Article 6 (a) to (c) LICCM. 75 See further infra Sect. 8.3.1.1. 76 Andrade (1992), p. 63. 77 Article 33 (8) of the Constitution. 78 In more detail, see Caeiro and Costa (2012), pp. 573 f., et passim. 79 Article 126 (1) of the CCP. 74

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conditioning of a legally guaranteed benefit; or promise of a legally inadmissible benefit.80 (ii) On the other hand, except where provided otherwise by law, evidence obtained through intrusion, without the consent of the person concerned, in private life, domicile, mail or telecommunications is also null;81 in this case, the person concerned may consent to the intrusion (either ex ante or ex post facto), and, if so, the nullity will be cured, meaning that it is a merely relative nullity.82 On the other hand, unlike the aforementioned absolute nullity, this relative nullity admits exceptions— notably, the intrusive investigative methods provided for in the CCP,83 such as the interception of telecommunications, as well as in other special legal instruments on criminal procedure. (iii) Both types of nullities can be declared ex officio or at the request of an interested party, at any time of the criminal procedure. Nullity causes the invalidity of the act at stake, as well as of the acts on which that act depends and which may be affected by it.84 This denotes the adoption of the “fruits of the poisonous tree” theory. Nevertheless, the Constitutional Court has held85 that illegally or improperly obtained evidence only “contaminates” the evidence to which it is tightly connected.86 Thus, few or no “contagious effects” will occur if the use of the evidence can be reconciled with the scope of the breached procedural rule.87 Turning now to the use of evidence obtained abroad in Portuguese criminal proceedings, the CCP adopts a numerus apertus model whereby any type of evidence that is not prohibited by law is admissible.88 This encompasses the possibility of using in Portuguese criminal procedure evidence obtained in a foreign legal system. By the same token, evidence obtained by foreign authorities through means that are illegal or improper under Portuguese law is null and cannot be used in a Portuguese criminal proceeding unless a treaty or international convention binding on Portugal explicitly accredits legitimacy to evidence obtained under the law of that 80

Article 126 (2) of the CCP. Article 126 (3) of the CCP. 82 See Andrade (1992), p. 88; Canotilho and Moreira (2007), Art 32; Albuquerque (2009), p. 319. 83 See Articles 171 f. CCP. 84 Article 122 (1) CCP. 85 Ruling no. 198/2004, of 24 March. 86 This corresponds to the long-established view of Portuguese legal literature: see e.g. Pimenta (1991), pp. 378 f.; Andrade (1992), pp. 63 and 314 f. Regretting this trend, see Silva (2008), p. 146. 87 See e.g. the ruling of the Constitutional Court no. 213/94, of 2 March, and the rulings of the Supreme Court of Justice of 31 January 2008, process 4805/07 (in www.dgsi.pt, as all other rulings of judicial courts mentioned in this article), and of 20 February 2008, process 226/08. Sousa (2006), pp. 729 f. summarises this drift away from the theory of the ‘fruits of the poisonous tree’ as follows: (i) ‘independent source exception’, which deems admissible evidence that has or could have been obtained through alternative, autonomous and lawful means; (ii) ‘inevitable discovery exception’, which deems admissible evidence that would have necessarily been discovered at a later stage, in result of another investigation; and (iii) ‘purged taint exception’, which deems admissible evidence that is sufficiently autonomous in relation to the (illegally or improperly obtained) evidence from which it derived (namely the ulterior confession of the offender). 88 Article 125 CCP. 81

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state. However, there are a few “exceptions to this exception”: the constitutional rules on evidence gathering are not (unlike ordinary legislation) superseded by international norms, and thus they must always apply. For instance, the rule according to which only a judicial authority may order a house search makes it impossible to use in Portuguese criminal proceedings evidence obtained abroad through a house search ordered by a police authority.89 As for judicial review of decisions not to issue cooperation requests, no such possibility is explicitly provided for in the law. In any event, the following should be taken into account: (i) regarding extradition, obviously a person is generally not interested in being extradited, but this may be comparatively beneficial, for instance where it enables the person to be tried in the state of his/her nationality or residence rather in the one where he/she is located. In Portugal, the PPO abides by a principle of procedural legality, which obliges it to prosecute offences of which it receives notice and on which it gathers sufficient evidence.90 Under given conditions (territoriality, protection of national interests), this principle extends to transnational cases, obliging the PPO to seek extradition of the suspect to Portugal.91 If the PPO does not launch extradition proceedings and the individual would be interested in being extradited to Portugal, it is theoretically possible to request this to the PPO, but the refusal to do so or the persisting inactivity of the latter cannot be challenged before a court.92 (ii) As for the transfer of prisoners, the law suggests that proceedings should always be initiated if the prisoner requests so himself/herself, and in practice it should be quite rare for Portugal to refuse to transfer a prisoner in such circumstances. Yet, the Minister of Justice must authorise the transfer,93 and, arguably, a decision not to authorise it can be challenged before an administrative court, in terms similar to those defended above on the Minister of Justice’s decision not to refuse extradition. (iii) Insofar as evidence gathering is concerned, the possibility to challenge a decision not to request cooperation from another state is extremely limited. In Portugal, the defendant is not burdened with proving the circumstances that may constitute defences. The defence can, however, present evidence in its possession and request authorities to carry out investigative measures.94 The decision whether or not to carry out such measures is not discretionary and should be taken according to legal criteria, but the fact is that authorities are not bound to grant such requests, and refusal to do so is subject to very limited review. If the measure is requested from the PPO (in the inquiry), the defendant can only file a complaint to the hierarchical superior of the public prosecutor who refused to order the measure, who may confirm or contradict the subordinate’s decision, but the defendant cannot request judicial review as this would contradict the constitutional

89

Article 34 (2) Constitution. See further infra Sect. 8.6. See Dias (1974), pp. 133, 144; Antunes (2017), pp. 60 f.; Caeiro and Costa (2012), pp. 544 f., 548. 91 See Costa (2014), p. 41. 92 See further below. 93 Article 118 (3) LICCM. 94 Article 61 (1) (g) CCP. 90

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norm according to which the inquiry is directed by the PPO.95 It is in any event possible that later on in the procedure (sc. during the phases of instruction or trial) a judge orders evidence to be produced, and, in a sense, this leads to a judicial appraisal of the decisions formerly taken in the procedure not to order the production of such evidence.96 When the measure is requested from a judge, the defendant can only challenge the decision before that very judge.97 In all cases, if the measure requires issuing a cooperation request, the conditions that must be met in order for it to be ordered are more demanding than if the measure is to be carried out in Portugal, as the judicial authority must find it necessary to prove facts that are “essential to the prosecution or to the defence”.98

8.2.1.4

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

Foreign authorities may carry out investigative measures in Portuguese soil, such as joint investigation teams or controlled deliveries, provided that these are authorised by the Minister of Justice99 and that Portuguese authorities retain control of the operations, with foreign authorities playing an ancillary role.100 This suggests that there is no room for a person to challenge before a judge, in Portugal, a decision allowing a foreign authority to carry out an investigation measure in this territory. The law does not explicitly refer the complainant to the other states’ authorities either. However, if the evidence is to be used in a criminal procedure taking place in Portugal, then its validity may be challenged later in trial, and any assistance requested from Portugal—including authorisation of foreign action in its territory—is to be carried out according to Portuguese law, unless the foreign state requests otherwise and this does not transgress fundamental principles of Portuguese law or cause serious damage to those intervening in the procedure.101 If the measure is explicitly prohibited by Portuguese law or capable of triggering criminal or disciplinary liability on the part of those who carry it out, then the request will be plainly refused.102 This means that, in line of principle, evidence later brought to trial

95

Article 219 (1) Constitution, and the ruling of the Constitutional Court no. 395/2004, of 2 June. One problem is the event that, at this procedural moment, the evidence has become impossible to obtain. This, however, is already a different issue. 97 Article 291 (2) CCP. 98 Article 230 (2) CCP. 99 Article 145 (5) LICCM (addressed in a different light supra Sect. 8.2.1.1). The Minister of Justice can delegate this prerogative to the Attorney-General or, if the measure involves exclusively a foreign police authority, to the National Director of the Judiciary Police: Article 145 (9) LICCM. 100 Article 145 (7) LICCM. Note that these requirements may be dispensed if an international agreement binding on Portugal provides otherwise: Article 145 (11) LICCM. 101 Article 146 (1) and (2) LICCM. 102 Article 146 (3) LICCM. 96

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in Portuguese criminal proceedings will comply with the legally prescribed conditions. As for the use of evidence gathered in Portugal which is invalid in the light of foreign law, no provision in Portuguese law confers a possibility to appeal such use by the foreign state in its own criminal procedure. One provision of the LICCM does, however, shed some light on this issue: Article 148 provides that information obtained by or in Portugal at the request of another state (or international judicial entity) for the purposes of a specific criminal procedure cannot be used in a different one unless the foreign state so requests and the Minister of Justice consents (a kind of a speciality rule for evidence gathering through mutual legal assistance). The fact that the sheer consent of the Portuguese state suffices for using the evidence shows that Portuguese law conceives of transnational evidence gathering as an issue to be essentially challenged at trial, which is not so different from what happens in the context of domestic criminal proceedings.

8.2.2

The Framework of Cooperation Within the EU

8.2.2.1

International and Internal Dimensions of the Granting Decision

Since the European arrest warrant abolished political intervention and made surrender within the EU exclusively judicial, its “internal” and “external” dimensions are even more integrated than in classic extradition, and decisions to execute a warrant can be appealed to their full extent. Legal instruments implementing EU law (such as PT-EAW) do, however, refer the regulation of certain issues—such as the decision whether or not to hold a person in custody pending European arrest warrant proceedings—to other legal instruments, notably to the CCP.103

8.2.2.2

Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits

As in classic cooperation, Portugal, as an executing Member State, shall also apply its own law in the context of EU cooperation, notably the grounds for non-execution enacted in the implementation of EU legislation. Taking the EAW Framework Decision (FD-EAW) as a reference, grounds for non-execution are as a rule much narrower than classic grounds for refusal, as clearly illustrated by dual criminality and nationality, which have been largely compressed in the European arrest warrant. Yet, the European arrest warrant is on occasion subject to somewhat more stringent conditions than classic extradition, an example of which is the ground for mandatory non-execution whereby the sought person cannot, owing to his/her young age, be

103

Article 19 (2) PT-EAW.

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held criminally liable under the law of the executing Member State for acts on which the warrant is based.104 In other instances, the European arrest warrant is subject to more detailed conditions than classic extradition, as in the case of trials in absentia.105 Apart from that, the distinctions mentioned above—between constitutional and ordinary or mandatory and optional grounds for refusal—apply here with the following nuances. The Portuguese legislator made optional (for the courts) the grounds for refusal that the European legislator deemed to be of optional implementation (for the states). Indeed, the grounds for non-execution provided for by the FD-EAW were copied, with two main differences.106 In the first place, the original version of PT-EAW contained two mandatory grounds not found in the FD-EAW, namely the applicability of the death penalty and political persecution.107 Both have constitutional rank, and neither is covered by Article 33 (5) of the Constitution, which exempts EU cooperation from some traditional conditions and grounds for refusal (e.g., nationality and life imprisonment). Arguably, this did not violate EU law taken as a whole,108 but the Portuguese legislator deleted them anyway in 2015. In the second place, the “copy/paste” method used led to the unfortunate mistake of making lack of dual criminality (in the cases not covered by Article 2 (2) of the FD-EAW) both mandatory (Article 2 (3) PT-EAW) and optional (Article 12 (1) (a)) grounds for non-execution. This mistake was pointed out immediately by the literature109 and has finally been corrected through an amendment to the PT-EAW effected by Law no. 115/2019, of 12 September, which struck down the latter norm. Also as in classic cooperation, judicial authorities can, to an extent, assess the lawfulness of a request made by a fellow Member State under the law of this very Member State, in the context of some grounds for non-execution such as dual criminality (when the issuing Member State does not “tick the box” precluding control of dual criminality by the executing one).110 However, mutual recognition prevents such assessment in regard to most issues, and it lessens its intensity in 104

See Article 3 (3) FD-EAW, implemented into Article 11 (c) PT-EAW. This provision has no perfect equivalence in its classic counterpart (the LICCM), although it may to an extent be derived from the ground for refusal provided for in Article 18 (2) LICCM (in this sense, Rocha and Martins 1992, p. 53). 105 This ground for optional non-execution was introduced into the FD-EAW by the FD 2009/229, and implemented into Article 12-A PT-EAW. In contrast, the LICCM has no specific ground for refusal on trials in absentia, but only implicitly contemplates this hypothesis under the general ground for refusal on procedural conditions in the requesting State (Article 6 (1) (a) LICCM). 106 In more detail, see, in English, Caeiro and Fidalgo (2009), pp. 446 f.; and a more recent version, in Portuguese, Caeiro and Fidalgo (2015), pp. 157 f. 107 Article 11 (d) (e) of the original version of the PT-EAW. 108 Caeiro and Fidalgo (2009), pp. 448 f. 109 Pereira (2003), pp. 59 f.; see also Caeiro and Fidalgo (2009), pp. 452 f., and Matos (2013), pp. 94 f. 110 In the case of the European arrest warrant: Article 2 (2) FD-EAW; Article 12 (1) (a) PT-EAW. In the case of the European Investigation Order (EIO), see Article 31, in fine, 45 and 47 Law no. 88/2017, of 21 August, implementing the FD-EIO: see shortly below.

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regard to those where it may take place. Therefore, the extent to which that control is possible is much narrower than in the field of classic cooperation. And although this edifice has been shaken by recent developments in the Court of Justice’s case law on human rights, notably since Aranyosi & Căldăraru,111 it is still rather cooperationfriendly when compared to the correlative case law on traditional cooperation, as it requires very strong signals of a systemic breach for the warrant not to be executed. Regarding evidence gathering, more specifically the European investigation order, implemented into the Portuguese legal system through Law no. 88/2017, of 21 August (PT-EIO), an explicit distinction is made between internal and external dimensions: the formalities and procedural acts related to the execution of the measure can be appealed before Portuguese courts in accordance with the general terms of the CCP,112 while the substantive reasons underpinning the issuing of a European investigation order can only be challenged in the issuing Member State.113 The possibilities of examination are somewhat more extensive insofar as concerns evidence gathering because the European investigation order (unlike the former European evidence warrant) stays farther away from the mutual recognition paradigm than most other cooperation devices in force in the EU and seeks instead to strike a balance between that paradigm and the classic approach to mutual legal assistance, which characterised the 2000 Convention between Member States.114 In the context of the European investigation order, the concerned individual’s right to judicial review is “equivalent to those available in a similar domestic case”.115 No

111

See Caeiro et al. (2018), pp. 689 f. Article 45 (4) PT-EIO. 113 Article 45 (2) PT-EIO. However, the position has been defended in Portuguese legal literature that, where fundamental rights are at stake, it is possible to challenge before a Portuguese court the very lawfulness and proportionality (the two main components of the concept of ‘substantive reasons’) of a European investigation order issued by another Member State, as well as to question whether it is based on a ‘sufficient degree of suspicion’: see Ramos (2018), pp. 129 f. The author further submits that the same result may be achieved through Article 10 FD-EIO (Article 21 PT-EIO), according to which the executing authority may deploy an investigative measure other than that provided for in the European investigation order where, inter alia: the investigative measure indicated in the European investigation order does not exist under the law of the executing State; the investigative measure indicated in the European investigation order would not be available in a similar domestic case; or the investigative measure selected by the executing authority would achieve the same result by less intrusive means than the investigative measure indicated in the European investigation order. This is because these hypotheses presuppose a proportionality assessment—whether made beforehand, in abstract terms, by the legislator, or in the case at hand, in concrete terms, by the relevant authority. This understanding is grounded on the provision implementing Article 14 (2), in fine, FD-EIO, as well as on that implementing its Article 11 (1) (f) (see Article 22 (1) (g) PT-EIO), which enables the non-execution of a European investigation order where there are substantial grounds to believe that its execution would be incompatible with the obligations of the executing State under Article 6 of the TEU and of the Charter. 114 In this sense, see e.g. Bachmaier Winter (2015), p. 47; Klip (2018), pp. 31 f.; Ramos (2019), pp. 84 f. 115 Article 45 (1) PT-EIO. 112

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provision could be detected in the Portuguese legal system establishing that it is possible to lodge a legal remedy against a foreign request before a Portuguese court in such a manner as to trigger judicial review in the issuing Member State. The issuing and the executing states must inform each other about the legal remedies sought against the issuing, recognition or execution of a European investigation order, and the issuing state must take into account successful challenges against the recognition or execution of a European investigation order.116 Where this does not undermine the confidentiality of an investigation, the issuing state and the executing state shall ensure that information is provided to the individual about the possibilities to seek legal remedies under national law.117

8.2.2.3

Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance

As far as it was possible to establish, only in the context of the European investigation order can a decision to request cooperation from another Member State be subject to judicial review: according to the PT-EIO, when Portugal is the issuing state, the decision ordering the investigation measure (and, thus, the issuing of the European investigation order) can be appealed in accordance with the normal conditions of the CCP (already outlined above) for internal proceedings.118 As evidence obtained in another Member State can only be used if it is valid in the light of Portuguese law (namely if it would have been possible to gather in accordance with national criminal procedure),119 it is sensible for Portugal to request the foreign authority to comply with these rules while gathering evidence, based on the principle forum regit actum. As in the context of traditional cooperation, there is no explicit provision for judicial review of decisions not to request cooperation from another Member State.120 Regarding evidence gathering, in the absence of a specific rule in the FD-EIO (and, thus, in the PT-EIO) concerning the possibility to challenge a decision not to issue a European investigation order, Article 230 (2) of the CCP will again apply.121

116

Article 45 (6) and (7) PT-EIO. Article 45 (5) PT-EIO. 118 Article 45 (3) PT-EIO. On this, see yet further below. 119 See Article 11 (1) (b) PT-EIO. 120 See supra Sect. 8.2.1.3. Regarding the transfer of prisoners, the key legal instrument is Law no. 158/2015, of 17 September (‘PT-TP’), implementing the Framework Decision 2008/909 and the Framework Decision 2008/947: see, in particular, its Articles 9 (5) and 10 (1). 121 It is recalled that, based on this provision, a request for another State to gather evidence is only possible if it is necessary to prove “essential” facts. This limitation applies equally to classic and EU cooperation, but it has been propounded that it is inadequate to an integrated area such as the Area of Freedom, Security and Justice: see Ramos (2018), p. 123. 117

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Concentration of Judicial Review (SIS II)

In Portugal, the second-generation Schengen Information System (SIS II) is deemed to function well,122 although failure to remove or correct inserted information has on occasion led to unwarranted arrests. This has given rise to actions against the Portuguese state—both before its own courts and before the European Court of Human Rights—seeking compensation for the time spent in detention. In any case, the prevailing view is that a person can only react against an alert or other actions taken in the context of SIS II before the very state that inserted the information, such that no concentration of remedies is really deemed to emerge from Article 59 of Decision 2007/533/JHA.

8.2.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

Authorities of other Member States may carry out investigative measures in Portuguese territory: (i) the national member of Eurojust, in agreement with a competent national authority or at its request and on a case-by-case basis, can authorise and coordinate controlled deliveries.123 In urgent cases, if it is impossible to identify or contact the competent national authority in a timely way, authorisation and coordination may take place ex officio, subject to communication to that authority as soon as possible.124 (ii) The cross-border surveillance established in Article 40 of the Schengen Convention is enabled by the act implementing the Convention into the Portuguese legal system; the same applies to the hot pursuits provided for in its Article 41.125 (iii) As for joint investigation teams, established by Framework Decision 2002/465, they are regulated in LICCM (in this regard, no differentiation exists between classic and EU cooperation) and in PT-Eurojust.126 (iv) The joint operations and the joint patrols provided for in Article 17 of Decision 2008/615/ JHA have not yet been regulated at the national level. There are no significant differences between traditional cooperation and EU cooperation insofar as concerns judicial review against the carrying out of these types of measure by a foreign authority in Portuguese soil: the authorising decision cannot be challenged before a judge in Portugal, but the use of evidence in a 122

For this purpose, an informal interview was carried out in Lisbon, on the 7th of August of 2019, with Ms. Joana Ferreira, Director of the Portuguese Office for Documentation and Comparative Law (Gabinete de Documentação e Direito Comparado), whom we thank for sharing information and skilled insights with her customary generosity. 123 Article 8 (3) (d) PT-Eurojust (Law no 36/2003 of 22 August 2003, as amended by Law no. 20/2014 of 15 April, implementing Decision 2002/187/JHA setting up Eurojust, as amended by Council Decisions 2003/659/JHA and by 2009/426/JHA, strengthening Eurojust). 124 Article 8 (4) (d). 125 Acordo de Adesão da República Portuguesa à Convenção de Aplicação do Acordo de Schengen. 126 Especially Article 9 et seq.

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Portuguese criminal proceeding may be challenged later at trial. As for evidence gathered in Portugal which is invalid under foreign law, there is no provision in Portuguese law enabling an appeal against its use by the foreign state in its own criminal proceedings.

8.3

Scope of Judicial Protection and Applicable Legal Standards

8.3.1

The General Framework of International Cooperation in Criminal Matters

8.3.1.1

Judicial Protection and Applicable Standards in the Requested State

While the law is not explicit as to the tests or standards that should be applied to foreign decisions, proceedings or requests,127 it is reasonable to infer that, inasmuch as concerns the law of the requesting state itself, in principle only blatant violations will trigger a refusal to cooperate on the part of Portugal. Regarding the law of Portugal as a requested state, it applies both directly and indirectly. In this instance, one further distinction should be drawn: some grounds for refusal, such as dual criminality or time-bars, require no more than a simple application of the law to the “facts”—even when the relevant “facts” are already the result of a normative assessment—whereas other grounds, such as political persecution or disrespect for human rights, involve significant discretion and may require some meddling in the practice of the requesting state. In any case, the relevant concepts should still be interpreted in the light of Portuguese/international law standards. International law (general and conventional), which forms an “integral part of Portuguese law”,128 can be relied on by the targeted person to challenge a request. For instance, extradition shall be refused if the requesting state is basing its punitive claim on a jurisdictional connection (Anknüpfungspunkt) which is proscribed by general international law (e.g. a connection based on race or unilateral universal jurisdiction)129 or if the person is covered by an international immunity. Occasionally, international law also plays a role in indirect terms, with the scope of some grounds for refusal being ultimately determined by reference to international norms. One example is that of minimum procedural guarantees in the requesting state, which must comply with the rules set out in the ECHR or other international legal instruments binding on Portugal, such as the International Covenant on Civil and

127

On the scope and limits of this assessment, see supra Sect. 8.2.1.2. Article 8 (1) Constitution. 129 See Caeiro (2010), pp. 228, 355. 128

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Political Rights (ICCPR) or the Charter of Fundamental Rights of the European Union (CFREU).130 The applicable standards are similar to those where Portugal applies its own law (since international norms are also immediately applicable by the Portuguese state), but applying international law entails a lesser risk of interference in the internal affairs of the requesting state (inasmuch as the international norms at stake may be binding on the latter).131 In its relations with third states, Portugal must apply EU law. (i) For instance, if a Member State grants asylum to a citizen of a non-Member State and this person’s extradition is requested from Portugal, the asylum granted by the fellow Member State produces effects in Portugal and extradition should be refused. This is illustrated by the case of Sikh activist Paramjeet Singh: in 2000, the UK granted him asylum and issued a travel document enabling him to move within EU space; Singh was arrested in Portugal in December 2015 pursuant to an international arrest warrant issued by India on charges of financing a terrorist organisation; in February 2016, Portugal refused extradition to India, and the proceedings did not even reach the judicial phase: the request was denied outright by the Minister of Justice, with her decision reportedly invoking the 1951 UN Refugee Convention and the common asylum policy of the EU, enshrined in the TFEU.132 (ii) As another example, Portugal should follow the interpretation of the European Court of Justice (CJEU) in Petruhhin: Portugal is one of the Member States that has a deeply rooted tradition not to extradite its own nationals (albeit with some exceptions for serious types of criminality), meaning that it should refuse extradition of other EU citizens in comparable circumstances.133 (iii) Finally, the EU agenda on procedural rights should also be mentioned. Directive 2016/800, on procedural safeguards for children, was implemented into the CCP through Law no. 33/2019, of 22 May. However, the Directives establishing rights for suspects or accused persons in criminal proceedings have not been explicitly implemented, although most of their norms were already accommodated by pre-existing norms in the Portuguese legal system.

Article 6 (1) (a) LICCM. There are other national norms which ‘implement’ international law, such as the prohibition to cooperate with States acting on discriminatory motives, or where such motives may worsen the situation of the individual (Article 6 (1) (b) and (c) LICCM). Cooperation must also be refused if the trial in the requested State is to be conducted before an ad hoc court, or, in the event where the request is aimed at enforcement purposes, if the sentence at issue has been proffered by a court of that nature (Article 6 (1) (d) LICCM). Note that ad hoc courts are to be distinguished from courts of special jurisdiction competent for specific classes of offences or offenders. Apart from military courts (which are allowed in times of war), special penal courts are not allowed by the Portuguese Constitution either (see Articles 209 (4) and 213 Constitution). Excluded from the concept of ad hoc courts are also international tribunals, such as those created by UN Security Council resolutions, and the ICC: cooperation with the ICC has been embraced in full by the Portuguese legal system through a constitutional amendment in 2001 (which introduced current Article 7 (7), ‘embodying’ the Rome Statute of the ICC); cooperation with the former tribunals had already been regulated in Law no. 102/2001, of 25 August. 131 See Article 7 (1) Constitution. 132 See Costa (2019a), p. 387. 133 In more detail, see Costa (2017), pp. 200 f. 130

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In any case, upon implementation they become an integral part of Portuguese criminal procedural law and are applicable in any criminal proceeding taking place in Portugal, including those that require the cooperation of third states. As for the procedural rights established for European arrest warrant proceedings, they apply only vis-à-vis other Member States, in the context of such proceedings, and do not extend to proceedings of extradition to third states.

8.3.1.2

Judicial Protection and Applicable Standards in the Requesting State

Since the possibility to react against the issuing of a cooperation request by Portugal is extremely limited,134 Portuguese law, international law and EU law are virtually inapplicable for such purpose.

8.3.2

The Framework of Cooperation Within the EU

The fundamental difference, in this respect, between the classic framework and that of EU cooperation is that in the latter case there is a presumption of reliability of the issuing Member State, which relieves executing authorities from assessing many issues. However, after the European Court of Justice’s rulings in Aranyosi & Căldăraru and Celmer (L.M.), it became clear that systemic deficiencies in the protection of human rights may impinge on cooperation with a fellow Member State because they lead to a rebuttal of the presumption of trust, and the issuing Member State must then convince the executing authorities that such deficiencies will not materialise in the case at hand. Even before these developments, it was possible to assess whether a warrant issued by a fellow Member State had the necessary support in the relevant EU legal instrument. Thus, for instance, in a ruling of 2007, the Portuguese Supreme Court held that, even though a box had been ticked, the acts underlying a Spanish European arrest warrant, as qualified by the respective authorities, could not be deemed to integrate the list of offences of Article 2 (2) of the FD, more specifically the item “kidnapping”, but rather they fell “manifestly beyond” a European notion of such offence.135 The court underscored that the conclusion was drawn not from the interpretation of Portuguese substantive law (as a requested state) but rather “directly and immediately from the formulation of the warrant and from the formal, systematic

134 135

See supra Sect. 8.2.2.3. See the ruling of 4 January 2007, process 06P4707; thereon, Caeiro and Fidalgo (2009), p. 460.

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and material framework of the law of the issuing state”,136 evincing again the influence exerted by the principle of mutual trust in favour of EU cooperation. Somewhat peculiar—as already noted—is the case of evidence gathering via the European investigation order: the substantive reasons underpinning the issuing of a European investigation order can only be challenged in an action brought in the issuing Member State,137 but the formalities and procedural acts related to the execution of the measure can be appealed before Portuguese courts in accordance with the terms established in the CCP.138 This leads to the following regime:139 (i) if the procedure is in the trial phase in the issuing Member State, the competence for executing a European investigation order belongs to a court of first instance,140 whose decisions may be challenged before the court itself141 or before the Court of Appeal.142 A decision of the Court of Appeal can be appealed to the Supreme Court in order to settle a jurisprudential conflict143 or if it contravenes settled jurisprudence.144 (ii) The same applies where a European investigation order is issued prior to the trial phase and the competent executing authority is an investigative judge (which is necessarily the case when the requested measure is intrusive to fundamental rights).145 Those decisions are then open to appeal in the same terms mentioned above for the trial phase. If, however, the competent executing authority is the PPO, then there is no normative basis for requesting the judicial review of the measure, but it has been argued that such a possibility should be admitted in order to guarantee respect for the constitutional principle audi alteram partem.146 The judicial decisions resulting therefrom would then be open to appeal in the same terms mentioned above for the trial phase. (iii) If the execution of the European investigation order 136

Ibid. But recall the argument by Ramos (2018), pp. 129 f., according to which it is possible to challenge before a Portuguese court the very lawfulness or proportionality of a European investigation order issued by another Member State, as well as to question whether it is based on a ‘sufficient degree of suspicion’, where fundamental rights are at stake (e.g. where the issuing Member State is looking for Portugal to obtain self-incriminatory evidence). 138 Article 45 (2) PT-EIO. 139 Ramos (2018), pp. 145 f. 140 Article 19 (3) and (6) PT-EIO. 141 Article 118 f. CCP. 142 Article 399 f., 427 and 432 CCP. 143 Article 437 (2) CCP. Should there be two opposite decisions proffered by High Courts, by High Courts and the Supreme Court, or by the Supreme Court itself, in different cases, on the same legal issue, the Supreme Court can be relied upon to settle the contradiction by adopting one of the conflicting approaches. Something of a presumption becomes thenceforth in place in favour of the adopted stance: the lower courts that wish to depart from such a stance have a legal duty to justify why they do so, and the PPO is obliged to appeal to the Supreme Court from any rulings that do not follow the settled jurisprudence (Arts 445 f. CCP). 144 Article 446 CCP. 145 Article 19 (1) PT-EIO, and Articles 268 and 269 CCP. 146 See Ramos (2018), p. 146, observing that there is case law in both directions and that a uniform interpretation of the law is yet to define itself. 137

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involves the intervention of the police (although the police have not been included in the PT-EIO as an executing or issuing authority, they may provide collaboration), its intervention may be challenged either before the PPO or a judge, depending on whom is to be considered the “executing authority” according to the previous paragraphs. In turn, the decision of these authorities in response to this challenge is or is not open to being appealed from depending on the terms mentioned above in (i) and (ii).

8.4

Pleading Requirements

8.4.1

The General Framework of International Cooperation in Criminal Matters

When forwarding a cooperation request to the Minister of Justice,147 the PPO will immediately draw attention to certain manifest grounds for refusal, such as time-bars and the nationality exception. The requesting state must submit the request together with supporting information which are necessary to ascertain whether or not certain grounds for refusal are met in the case, e.g., evidence that it has jurisdiction over the acts and that the procedure is not time-barred in its legal system, an indication of the object and the motives of the request and an indication of the applicable provisions of substantive law.148 If the request proceeds to the judicial phase, then the following applies. 8.4.1.1

Extradition

The requesting state can be represented through a designated attorney who can have direct access to the file and provide the information required by the court.149 The person targeted is summarily heard by a judge in order to determine whether or not he/she consents to being extradited.150 If he/she does not—which is the normal scenario—the file is made available to his/her lawyer so that he/she may offer written opposition to extradition and adduce any evidence admissible under Portuguese law.151 In this preliminary hearing, the judge will also decide whether the individual will remain in detention or be subject to other coercive measures. In the main extradition hearing, the PPO and the attorney of the sought person will present evidence and make their pleas.152 Each party may present up to ten witnesses, and 147

Pursuant to Articles 21 (1) and (2), and 48 (1) LICCM. See Article 23 (1) (b) and (f), and Article 44 (1) (b) and (2) (d) and (e). 149 See Article 47 (1) and (4). 150 See Article 54. 151 See Article 55 (1). 152 See Article 56 (2). 148

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the court may order ex officio the undertaking of measures aimed at gathering evidence deemed necessary to take a decision.153 The law does not establish the aspects that should be argued or the level of detail that should be provided. The pleas may be deemed to be equivalent to the final allegations in a criminal procedure, in which the prosecution and the defence seek to condense into a consistent and overarching narrative the reasons why in their view the case is well grounded or groundless, respectively. It should be noted that the PPO performs an assessment of the request in strictly legal terms (no room for political considerations) and may plead either for or against the extradition.154 The attorney of the extraditee presents his/her plea after the PPO. This was imposed by the Constitutional Court in its Judgment no. 54/87, of 10 February, which ruled unconstitutional the (former) regime, according to which the PPO took the floor in the last place: the Court held that the extraditee’s defence rights—in the case, the right to contradict the allegations made in favour of his/her extradition—would be hampered if he/she were not given the final word. More generally, the court tends to equate extradition to penal proceedings, such that the set of rights recognised to the extraditee is, in the abstract, the same as that of a defendant—although this does not seem to extend to the presumption of innocence.155 If there are systemic or otherwise notorious deficiencies in the requesting state (as evidenced, e.g., by reports of international monitoring agencies or rulings of judicial instances such as the European Court of Human Rights), then this will inevitably reflect on the proceedings, and the requesting state will have to provide guarantees that those circumstances will not affect the extraditee. Regarding the differences between arguments based on different normative sources (the law of the requested state, the own law of the requesting state, international law, EU law), these have already been largely outlined above: for reasons of diplomacy and non-interference, it will be more difficult for a cooperation request to be successfully challenged based on the law of the requesting state itself than on that of the requested state, or on international or EU law (which can be directly applied by Portugal as a requested state).156 All grounds for refusal—national and supranational, ordinary and constitutional, optional and mandatory—can and, in fact, shall be applied ex officio by the court: it is not necessary that the PPO or the targeted individual invoke their applicability.

153

See Article 56 (1). See Article 55 (3). 155 In the sense that the court would only rule extradition to be admissible if each ground for refusal was proven beyond reasonable doubt not to be met in the case. Of course, the problem does not even arise in relation to the acts that constitute the offence, as the Portuguese extradition system does not allow the court to assess whether they have been committed by the extraditee. 156 See supra Sects. 8.2.1.2 and 8.3.1.1. 154

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Enforcement of Foreign Sentences

The main particularity of this mechanism vis-à-vis extradition is that, as a rule, it requires the consent of the convict (for custodial sanctions), and thus, if the person does not intend to serve the sentence in Portugal, it suffices that he/she does not give his/her consent.157 The exceptions are the cases where (i) the person’s extradition had been requested but could not be granted or (ii) the person is a Portuguese national who was extradited for prosecution abroad with a “return to sender” guarantee for enforcement purposes.158 The enforcement of a foreign sentence presupposes an operation of review and confirmation (revisão e confirmação) aimed at ascertaining whether the necessary conditions are met and whether the sentence complies with basic norms and principles of the Portuguese legal system on sentencing (e.g. maximum penalties). The review and confirmation of a foreign sentence can be requested by the PPO or by the individual concerned.159 The basic framework outlined for extradition proceedings applies mutatis mutandis: the decision to review and confirm the sentence is taken by a High Court and is open to appeal before the Supreme Court.160

8.4.1.3

Mutual Legal Assistance

Certain types of assistance may be requested and granted based on direct contact between authorities,161 but where this is not the case, the concerned person (defendant, victim) may challenge before a higher court a decision of a Portuguese judge granting a rogatory letter issued by a foreign state.162 If the rogatory letter was granted by the PPO, the defendant could only file a complaint to the hierarchical superior of the prosecutor responsible for the decision. In any event, since the competence to carry out the most intrusive measures belongs to a judge, no meaningful lack of protection emerges from that circumstance.

8.4.2

The Framework of Cooperation Within the EU

As far as specifically concerns pleading requirements, the specificities of EU cooperation, mutual trust and the presumption of reliability it entails among Member States, they do not carry meaningful differences in relation to classic cooperation.

157

See Article 99 (2) and 96 (1) (j) LICCM. See Article 99 (3) and (6) LICCM. 159 See Articles 234 f. CCP. 160 See Articles 237 and 240 CCP. 161 See Articles 21 (4), 145 (4) and 152 (1) and (5) LICCM. 162 See Article 152 LICCM, and 232 and 399 CCP. 158

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This is especially true for the European arrest warrant, as the Portuguese implementation act (PT-EAW) confers on the sought individual many of the rights conferred on a defendant in an ordinary criminal procedure.163 Regarding the European investigation order, the legitimacy to trigger legal remedies is not regulated in the FD. The most obvious beneficiary of those remedies is the defendant, concerning decisions that affect him/her, but the PPO may also appeal on his/her behalf (à décharge). Whether the issuing authority may challenge such decisions is not settled either, but it would appear that only the PPO can do so on behalf of the issuing state (à charge), in terms similar to those mentioned earlier in relation to the possibility to appeal decisions refusing extradition.164

8.5

Guarantees Given by the Requesting State (Zusicherung)

8.5.1

Legal Nature, Requirements and Effects

In the Portuguese legal system, guarantees can play a crucial role because they condition judicial cooperation/extradition in several circumstances.

8.5.1.1

Guarantees Regarding the Applicable Penalties/Measures

In some cases, the need for certain guarantees bears constitutional status: if the wanted person can be subject to life imprisonment, or a custodial security measure of indefinite duration, Article 33 (4) of the Constitution provides that he/she can only be extradited if (i) both the requesting state and Portugal are parties to an international covenant that establishes duties to extradite for that kind of offences and (ii) the requesting state provides guarantees that those penalties will not be applied or enforced. This requirement prevails over any international duty to cooperate, save for those that arise from judicial cooperation within the EU, which benefit from a specific constitutional provision exempting them from some of the obstacles to extradition.165 Article 6 (2) (b) of the LICCM extends the constitutional requirement of guarantees against the application or enforcement of life imprisonment/custodial security 163

See especially Article 17 (4) PT-EAW. See supra Sects. 8.1.2(ii), and 8.4.1.1; see Ramos (2018), p. 149; see Article 401 (a) CCP, applicable ex vi Article 45 (1) PT-EIO. Victims should arguably also be able to make use of legal remedies, but this seems to be limited to the case where Portugal is the State conducting the criminal procedure and refrains from requesting another Member State to carry out a given investigative measure. It has also been propounded that third parties should be able to as well to make use of those remedies when the execution of a measure affects their fundamental rights (ibid., 150). 165 Article 33 (5) of the Constitution; see infra Sect. 8.5.1.6. 164

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measures of indefinite duration, in general, to all procedures of judicial cooperation. In the abstract, it seems that the requirement could only apply to the supervision of conditionally released offenders and mutual legal assistance. However, it does not seem to make any sense to condition supervision to guarantees that would amount to a modification of the sentence already uttered, especially because those forms of cooperation aim at enhancing individual rights. The (likely) refusal of the requesting state to alter the sentence and the ensuing lack of cooperation by the Portuguese state would end up being detrimental to the convict, who would not be able to travel to Portugal as he/she is conditionally released. As a consequence, apart from extradition, the general requirement for guarantees provided for by LICCM in the case where life imprisonment is applicable only makes sense concerning mutual legal assistance. The regime established by this law differs from the constitutional provision on extradition in two aspects. In the first place, guarantees can be accepted even in the absence of an international covenant binding Portugal to cooperate with the requesting state; in the second place, the requirement for assurances can be derogated from if a different arrangement is established in an international treaty or a convention on mutual legal assistance binding on the Portuguese state. Before the revision of the Constitution in 1997, it was debated whether the provision of guarantees by the requesting state could also remove the constitutional prohibition of extradition in cases where the death penalty would be applicable to the extraditee. However, in 1997, the legislator took a clear stand and established a constitutional distinction between life imprisonment and the death penalty (or penalties causing irreversible bodily harm): guarantees are operative only in respect of the former, whereas obstacles regarding the latter can only be set aside if the requesting state commutates the penalty by means of an act binding on its courts and other bodies competent for the enforcement of the penalties166 or if the requesting state accepts the conversion of the death penalty, by a Portuguese court, into the penalty provided for by Portuguese law for the offence underlying the extradition request.167

8.5.1.2

Guarantees Regarding the Respect for the Conditions of Cooperation

If the request for cooperation is based on a plurality of acts that are covered by different provisions of Portuguese law and if, as a consequence, the request for cooperation can be granted only in relation to some of those acts (e.g. for lack of double criminality, statutory limitations, applicable penalties), the requesting state

166 167

Article 6 (2) (a) LICCM. Article 6 (2) (c) LICCM.

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must provide guarantees that it will respect the boundaries of cooperation as established in the decision to extradite.168

8.5.1.3

Guarantees Regarding the Respect for the Rule of Speciality

Article 16 (3) LICCM—which applies, in general, to requests for judicial cooperation of any sort—establishes that the requesting state must provide guarantees that it will respect the rule of speciality before the final decision on the request is uttered by the Portuguese courts.169 In the case of extradition, Article 44 (1) (c) requires a “formal guarantee”, which shall also encompass possible instances of re-extradition by the requesting state, meaning that respect for the speciality rule also limits the power to re-extradite the individual to a third state.

8.5.1.4

Guarantees Regarding Reciprocity

Article 4 (2) LICCM establishes that where appropriate (namely in the absence of a formal treaty), the Minister of Justice can ask and provide guarantees of reciprocity.

8.5.1.5

Guarantees Regarding the Extradition of Nationals

As a rule, the extradition of Portuguese citizens is prohibited by the Constitution. There are, however, some exceptions: adding to the “EU clause”, Article 33 (3) of the Constitution allows for the extradition of nationals “under conditions of reciprocity established by an international covenant” when the underlying offence is terrorism or international organised crime and as long as the law of the requesting state enshrines guarantees of a fair procedure. To this effect, reciprocity is to be assessed in concreto: it is not enough that Portugal and the requesting state are both parties to a convention that provides explicitly for the extradition of national citizens; it is also necessary that the requesting state would actually extradite a national to Portugal in the reverse situation. Article 32 (2), (3) and (4) LICCM lays down a stricter regulation (which applies in the absence of an international law provision to the contrary), according to which the extradition of nationals will be granted only for the purpose of ongoing criminal proceedings (not for the enforcement of a sentence) and only if the requesting state guarantees that it will send the Portuguese citizen back to Portugal, in the case of a conviction, in order to serve his/her sentence in Portuguese territory, unless the sentenced person objects to his/her repatriation.

168 169

Article 9 (1) LICCM. In more detail, see infra Sect. 8.5.3.

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Guarantees in the Context of the Execution of a European Arrest Warrant

Article 13 PT-EAW, which transposes Article 5 FD-EAW, regulates the “guarantees to be given by the issuing state in particular cases” (¼ Article 5 FD-EAW) and the proem of Article 13 (1) PT-EAW subjects the execution of a European arrest warrant to “one of the following guarantees”. However, a close look at the norms that follow in literae (a) and (b) shows that there is no actual place for requiring and providing guarantees. The law was changed in 2015 to accommodate the transposition of FD-EAW 2009, and with the deletion of former lit. (a) of Article 13 (1) PT-EAW (¼ Article 5 (1) FD-EAW), the provisions currently in force in lit. (b) do not even contain the word “guarantee”.170 As a consequence, there are two possible interpretations of Portuguese law. One view is that it makes it incumbent on its (executing) authorities to ask the issuing authorities for guarantees that the latter is not bound to give under the FD-EAW, thereby violating EU law.171 Another view is that there is a conflict between the proem of Article 13 (1) PT-EAW and the provisions it is supposed to implement, which should be solved by interpreting Portuguese law in the light of the FD-EAW. As said, the current version of the European instrument makes it clear that there is no place for asking or giving guarantees in what concerns the application/execution of life imprisonment or the surrender of nationals. When acting as the executing Member State, Portuguese authorities are bound to assess whether the law of the requesting state has the necessary mechanisms to avoid the application/execution of life imprisonment and decide over the execution accordingly (Article 13 (1) (a) PT-EAW), and they can subject the surrender of nationals to their repatriation in case of a conviction (Article 13 (1) (b) PT-EAW). But asking the issuing Member State for actual guarantees regarding those matters is not in conformity with EU law.172

Article 13 (1) lit. (a) states that if “the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant will be carried out only if the legal system of the issuing Member State has provisions for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure” (¼ Article 5 (2) FD-EAW); and lit. (b) rules that “where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State” (¼ Article 5 (3) FD-EAW). 171 The literature has pointed out this inconsistency already in 2009—see Caeiro and Fidalgo (2009), p. 450, and again in (2015), pp. 166 f.—, but the Portuguese legislator ignored the issue in the legal reform of 2015 and continued to ignore it in the most recent amendment to PT-EAW, effected by Law no. 115/2019, of 12 September. 172 Some case law of the Portuguese Supreme Court seems to follow this interpretation: in rulings of 10 November, 2011, process 763/11.8YRLSB.S1, and of 23 November 2011, which clarified the 170

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Finally, if we bear in mind the new case law of the European Court of Justice on the possibility of asking guarantees (assurances) related to the protection of human rights,173 it seems clear that the competence to do so rests with Portuguese courts (as executing authorities). It is less clear how the courts can provide such guarantees, especially when they involve administrative matters, such as ensuring that the individual concerned will not be held in detention in an overcrowded facility. It should also be noted that this type of assurances does not seem to qualify as common guarantees under international law (see infra) since the judicial authorities do not have, in principle, the capacity to represent (and bind) the state in its external relations; they should arguably be understood as an autonomous concept of European law, with its own sui generis consequences (e.g. its external effect vis-à-vis the individual).174

8.5.1.7

Guarantees Regarding Specific Forms of Cooperation Other Than Extradition

Portuguese law also requires guarantees for the purpose of ensuring ne bis in idem in the context of a transfer of criminal proceedings (Article 80 (1) (b) LICCM) and the execution of foreign penal sentences (Article 96 (1) (h) LICCM). In the latter case, the requesting state must give guarantees that, once the penalty is served in Portugal, it will consider the criminal liability of the convict extinguished.

8.5.1.8

Legal Nature

Under international law, guarantees are promises, a type of unilateral acts binding “on the state making the promise, if that state intended its promise to be legally binding”.175 In the context of extradition, and as long as their wording is unambiguous,176 it seems clear that such promises are intended to be legally binding. The guarantees will remove the obstacles to cooperation if they are deemed to be (politically) reliable and (legally) enforceable by the requesting party. In principle, the former assessment is to be performed by the Minister of Justice, whereas the latter can be performed (also) by the courts. In some cases, guarantees have been

former, it ruled that surrender should be granted immediately, even in the absence of guarantees, under the resolutive condition that some acts should be practised by the authorities of the issuing Member State (notifications related to a trial in absentia) and that the penalty to be imposed could not exceed a certain threshold. Remarkably, this ruling took place in a moment where Portuguese law—correctly—required actual guarantees, in line with the deleted Article 5 (1) FD-EAW. 173 CJEU, judgment of 25 July 2018, Case C-220/18 PPU (ML), paras. 90 f. 174 See Caeiro (2020) (forthcoming). 175 Malanczuk (1997), p. 130 (emphasis added); see also Eckart (2012), pp. 28, 208 f.; International Law Commission (2005), pp. 129 f. 176 See Konnova (2018), p. 45.

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refused by Portuguese courts on the basis that they were not binding on the competent authorities of the requesting state (namely its courts) as to the intended result (e.g., the exclusion of the death penalty177 or of life imprisonment178). As to the question of whether or not the requested state is obliged to accept the promise, it is clear that the promise does not create, on its own, a duty to cooperate for the requested state. Hence, if Portugal is not bound to cooperate by a treaty or an international agreement, the guarantee alone will not generate one such duty. If the Portuguese state is under an international obligation to cooperate, then the provision of a guarantee will probably make it more difficult to justify non-compliance with the (pre-existing) duty.

8.5.2

Legal Remedies Against the Violation of a Guarantee in the Requesting State

As said, it is now common ground that assurances (as for unilateral acts) can be legally binding on the states that give them. However, to our knowledge, there are no instances where individuals have filed a complaint following a violation of a guarantee provided by the Portuguese state. Indeed, and notwithstanding their legal nature, it is highly dubious that promises such as not placing a detainee in an overcrowded facility or not using prohibited methods of interrogation generate a justiciable right for the individual under domestic law. The addressee of the assurance seems to be exclusively the requested state unless, perhaps, the content of the promise explicitly encompasses the conferral of rights upon the extradited individual (e.g., a promise to confer upon the detainee the right to choose the prison where he/she will be incarcerated in case of a conviction). In contrast, the concerned person may claim damages for the violation of the (pre-existing) rights to which the violated promise relates. But if those rights do not exist on their own,179 it is unclear whether the concerned person may file a lawsuit in order to compel the state to fulfil the obligation it has unilaterally assumed, or even claim damages for the violation. An answer to this question requires an in-depth research, which is not compatible with the time frame and scope of this report. It is also in the light of this reasoning that the case law of the European Court of Justice according to which the individual can avail himself/herself of a guarantee given by the issuing state in the proceedings in that state points at considering those assurances as autonomous concepts of EU law.180

177

Ruling no. 417/95, of 17 July. Ruling no. 474/95, of 17 August. 179 Let us suppose, e.g., the case where the requesting State breaches the promise to return a foreign national whose extradition was secured, after a conviction has been passed, to the purpose of serving the sentence in the requested country. 180 See supra. 178

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305

Legal Remedies Against the Violation of a Guarantee in the Requested State

In a landmark judgment in 2011, the Court of Appeal of Lisbon ruled that extradition does not completely dissolve the bond between the extraditing state and the extradited individual.181 In fact, in the decision that had granted the extradition of Abu Salem Ansari to India in 2005,182 the Supreme Court had already warned the Indian authorities that non-compliance with the guarantees they had explicitly given (namely in regard of the speciality rule) would lead to the resolution of the decision and entitle the Portuguese state to demand the return of the individual to Portugal through the appropriate political and diplomatic channels. Hence, extradition was granted under the explicit resolutive condition that the requesting state fulfil its international duties and honour the guarantees it had given. However, in 2011, deciding over a motion filed by Abu Salem to that effect, the Lisbon Court found that the Republic of India had violated the speciality rule and therefore decreed the resolution of the decision to extradite. On appeal, the Supreme Court confirmed the ruling183 and went further to find that the presence of the extradited in Indian territory was “illegal”; it communicated the decision to the central authority (the Attorney-General’s Office) in order for it to act “as deemed appropriate, always abiding by the decision taken by [the] Court”. In the meantime, Abu Salem has been convicted to three penalties of life imprisonment,184 which can also violate the guarantees given if the Indian authorities do not somehow commutate or modify the sentences to a maximum of 25-year imprisonment. Notwithstanding the courts’ decisions and the new developments, the Portuguese Government did not ask the Republic of India to return the individual. In December 2014, Abu Salem filed a lawsuit against the Portuguese state in a Portuguese administrative court,185 claiming that the defendant be compelled to demand his return to Portugal to the Indian authorities, allegedly for the purpose of serving a penalty of 25-year imprisonment in the Portuguese prisons. The proceedings are pending and awaiting a decision.186 Regarding the issue as to whether the concerned person may claim damages from the Portuguese state, it follows basically the same lines drawn above: although there seems to be no case law on that matter, it is likely that the concerned person may

181

Ruling of the Court of Appeal of Lisbon of 14 September 2011, process 3880/03-3. Ruling of the Supreme Court of 27 January 2005, process 3880/03. 183 Ruling of the Supreme Court of 11 January 2012, process 111/11.7YFLSB. 184 See https://www.publico.pt/2018/04/04/sociedade/noticia/advogado-de-abu-salem-pede-novaintervencao-de-embaixador-de-portugal-na-india-1809081. 185 Tribunal Administrativo de Círculo de Lisboa (a court of 1st instance in administrative matters), process 2929/14.0BELSB. 186 In any event, no ruling could be found granting the extradition of any person form Portugal to India subsequently to the ruling of the Supreme Court of 11 January 2012, mentioned above. Recall moreover the outright refusal to extradite Sikh activist Paramjeet Singh (supra Sect. 8.3.1.1), although it has not been grounded on the erstwhile breach of the specialty rule by India. 182

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claim damages, under the general principles regulating unlawful state acts, if the decision taken by the Portuguese state (as a requested state) failed to meet the appropriate diligence standards and grossly disregarded or underestimated the risk of violation of a (pre-existing) right by the requesting state. The case law of the European Court of Human Rights seems to lean in this direction.187 However, compensation is due not because assurance was infringed upon by the requesting state but rather because the substantive right it might relate to (as long as there is one) has been violated. As a consequence, a plain breach of a guarantee, on its own, does not seem to give rise to any compensation.

8.6

Effectiveness of Judicial Review

8.6.1

The General Framework of International Cooperation in Criminal Matters

8.6.1.1

General Requirements (Access to Information and Suspensory Effect of the Remedy)

A person targeted by an extradition request is informed of this request, as well as of its legal basis under foreign law, before any decision is taken thereon.188 The request—including the supporting information and documents that must integrate it—is accompanied by a translation into Portuguese, unless agreed otherwise by the states involved.189 The law envisages the intervention of an interpreter in different stages of the proceedings and in such key moments as the hearing of the extraditee for the purpose of declaring whether he/she consents or opposes to being extradited, as well as for purposes of production of evidence.190 However, the law does not in effect require such information to be translated into the language of the extraditee. In any case, this is one instance where the CCP should arguably apply, ex vi Article 3 (2) LICCM, and Article 92 of the Code confers on the defendant (in fact on any person participating in the procedure) the right to be assisted by an interpreter, if necessary appointed ex officio, and even if the authorities or any of the subjects intervening in the procedure happen to speak or know the language at issue.191

187

European Court of Human Rights (ECtHR), judgment of 4 October 2010, Application no. 61498/08 (Al-Saadoon and Mufdhi v. The United Kingdom), paras. 142 f. 188 See the conjugation of Articles 55 (1), 56 (1), 44 and 23 LICCM. 189 See Article 20 LICCM. 190 See Articles 53 (4), 54 (1) and 56 (1) LICCM. 191 The provision further establishes that: (i) Defendants can choose (free of expenses to them) to be assisted by an interpreter other than that who was appointed to them, for the purposes of translating conversations held between them and their attorneys. (ii) Interpreters are obliged to secrecy, both to ‘secrecy of justice’, which protects the contents of the procedure (when applicable), and to ‘professional secrecy’, and, if such an obligation is violated, the statements of the defendant is

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Assistance by an interpreter is also mandatory whenever it is necessary to make written translations of documents in a foreign language and unaccompanied by authenticated translation.192 The same applies, mutatis mutandis, to the execution of foreign sentences193 and, to some extent, also to mutual legal assistance.194 However, in the latter case, there are some nuances that limit the right of the concerned person to receive information about the request: on the one hand, Article 23 (4) LICCM (the general provision concerning the content of cooperation requests) provides that in the case of mutual legal assistance (and in this case only), the request need not contain the text of the legal provisions applicable in the requesting state; on the other hand, in the case where legal assistance can be requested and granted on the basis of direct contact between the authorities,195 by definition, the person concerned will not have any contact with the procedure; finally, unlike extradition and the execution of foreign sentences, mutual legal assistance may be granted even if no specific person has yet been identified as a suspect in the underlying criminal procedure. Portugal, as a requesting state, is not obliged to inform the concerned person about the fact that it has lodged a cooperation request. Neither is there a provision requiring the requesting state, in a procedure in the context of which Portugal is the requested state, to provide information to the concerned person about the fact that it has lodged a cooperation request. There is no provision, either, entitling the person to access information about the existence and the content of a request for his/her provisional arrest,196 although such information (or at least a part of it) may happen to be publicly available (notably in Interpol’s website). On the other hand, if the person does come to be arrested, upon being detained, he/she shall be informed of the reasons why this has taken place.197 The case is slightly different regarding mutual legal assistance since a defendant (arguido) has, inter alia, the right to be heard by the investigative judge (in the preliminary stages of the criminal procedure) or by the court (in the trial phase) before they take decisions that personally affect him/her,198 and these may include decisions to request a foreign state to carry out certain measures aimed at gathering evidence. The person generally has access to the

null and cannot be used as evidence. (iii) Failure to appoint an interpreter or unlawful appointment of an interpreter are also sanctioned with nullity. 192 See Article 92 (6) CCP. 193 See Articles 3 (2), 23 and 99 LICCM, and Article 92 CCP. 194 See Articles 3 (2), 23 and 152 LICCM, and Article 92 CCP. 195 See supra Sects. 8.1.2(iv) and 8.4.1.3. 196 Regulated in Article 38 LICCM, applicable in urgent cases where, before submitting the formal request for extradition, the foreign State requests that the person be arrested. See also Article 39, on the provisional unrequested arrest: before any request for provisional arrest or extradition has even been made, the police can arrest an individual who, according to official information (e.g. from Interpol) is sought by foreign authorities for a crime which notoriously justifies extradition. On both provisions, see Souza and Oliveira (2015), pp. 115 f. 197 See Articles 141 (1) and 254 (2) CCP, applicable ex vi Article 38 (2) LICCM. 198 See Article 61 (1) (b) CCP.

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file before the decision on the request is taken, with the exception, again, of mutual legal assistance, in cases where the person need not even be informed beforehand that a request concerning him/her has been received and/or granted.199 In this respect, it should be noted that in Portugal criminal proceedings are not seldom kept secret until the trial phase is reached,200 meaning that the person will often not need to be informed of such requests beforehand. The LICCM explicitly confers suspensive effect on the appeal against decisions granting extradition.201 No such provision exists concerning other decisions, and consequently the general rules of the CCP will apply, on the basis again of the general clause contained in Article 3 (2) LICCM. The principle in this regard is that appeals will only have suspensive effect where the law so provides.202 Article 408 (3) (in combination with Article 407 (1)) CCP assigns suspensive effect to appeals that would become useless should they not be immediately decided upon. If the validity or efficacy of subsequent decisions is dependent on the outcome of the appeal, then it will suspend the whole procedure; if not, it will still suspend the decision that was appealed, meaning that in both cases the appeal will elicit a suspensive effect. In this light, it would appear that decisions to enforce foreign sentences do also have a suspensive effect, since otherwise the person would be immediately subjected to a deprivation of liberty which might later be ruled to be unwarranted. A different way to reach the same conclusion would be to establish an analogy between the decision to enforce a foreign sentence and the decision to convict a person in a national procedure (appeal against which will also carry the suspension of the whole procedure: Article 408 (1) (a) CCP) since both decisions render the penalty enforceable in the Portuguese legal system, with the inherent compression of fundamental liberties. Within the same line of reasoning, appeals (where admissible) from decisions on mutual legal assistance will or will not have a suspensive effect, depending on whether or not they “would become useless should they not be immediately decided upon”. No provision in the LICCM suggests that challenging a foreign request in the foreign legal system has a suspensive effect on cooperation. If, however, a person does successfully challenge the issuing of a cooperation request before the courts of the requesting state, then this will naturally bear consequences upon the cooperation procedure running in Portugal, to the extent that it translates into a ground for refusing the request, or in the case where the requesting state itself withdraws the request. On the other hand, if a Portuguese court (Portugal being the requested state) holds that international cooperation is inadmissible before it is executed, then it shall not be executed. The recent case of Raul Schmitt forcefully attests to this: Brazil requested the extradition of this individual, a Brazilian-born citizen who obtained Portuguese nationality in 2011. Portuguese courts held the view that it is possible to

See the provisions indicated above in this very §. See Article 86 (2) and (3) CCP. 201 See Article 49 (4) LICCM. 202 See Albuquerque (2009), p. 1043. 199 200

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extradite to Brazil Portuguese nationals who are not born nationals (for reciprocity reasons, since Brazil only admits extradition of its own nationals if they are not born nationals), provided that certain other conditions are met. The extradition request was, therefore, initially granted.203 However, Schmitt was meanwhile recognised to be a Portuguese-born national, and, thus, his extradition was ultimately denied.204 According to Article 225 CCP, a person can claim compensation if (i) he/she has been detained unlawfully or (ii) based on a blatant error in the ascertainment of the factual elements on which the detention depended or (iii) it is proven that the defendant has not committed the crime or his/her conduct was justified.205 The Constitutional Court has been called upon to ascertain whether the limitation of compensation to cases of blatant error and its exclusion in cases where the person comes to be acquitted based on the principle in dubio pro reo violate the right to be compensated for “deprivation of liberty contrary to the Constitution and the law”206 and the right to be presumed innocent.207 One argument in favour of the view that this norm is unconstitutional is that such a differentiation between “types of acquittals” casts a shadow of guilt upon individuals who have been acquitted “only” because it was not established beyond reasonable doubt that they committed the crime rather than because it was established beyond reasonable doubt that they did not. However, the court has ruled more than once that the said norm is not unconstitutional: procedural expedients such as detention play important precautionary functions within the criminal justice system, and the removal of the abovementioned limitations on the right to claim damages could lead to a “deficit” in their application; in the court’s view, these constitute sufficient reasons not to consider disproportional the assessment made by the legislator that those limitations should be in force.208

8.6.1.2

Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

In the context of classic cooperation, there are no provisions entitling the concerned individual to be aided by the Portuguese state in finding a lawyer in the foreign state. On the other hand, the law contemplates the intervention of an interpreter in different stages of the cooperation proceedings, but it does not require the translation

203

See the rulings of the Court of Appeal of Lisbon of 7 December 2016, and of the Supreme Court of 7 September 2017. 204 See the decision of the Court of Appeal of Lisbon of 24 May 2018 (in https://www.conjur.com. br/dl/extradicao-raul.pdf). On the whole topic, see Canotilho and Brandão (2019); see also Costa (2019b), pp. 786 f. 205 The tort liability of the State is regulated in detail in Law no. 67/2007, of 31 December. 206 Enshrined in Article 27 (5) of the Constitution. 207 Enshrined in Article 32 (2) of the Constitution. 208 See e.g. the ruling no. 185/2010, of 12 May.

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of any specific information or documents into the language of the extraditee. However, the CCP applies in a subsidiary manner ex vi Article 3 (2) LICCM, and Article 92 CCP enshrines a right to assistance by an interpreter.209 Also, Article 61 (1) (h) CCP confers on the defendant a right to be informed by the authorities of the rights to which he/she is entitled, which, in connection with said Article 92 CCP, may be deemed to entitle a person targeted by a cooperation request to get support for the translation of information. This, however, seems to apply only to extradition, given its partial equivalence to actual criminal proceedings, and to the execution of foreign penalties, given that they require an actual deployment by the Portuguese state of its penal apparatus. It does not seem applicable to mutual legal assistance.

8.6.1.3

Ineffectiveness of Ex Post Facto Judicial Review

Portuguese law does not explicitly regulate the consequences of a situation where Portugal has requested cooperation and is later on informed that the granting of legal assistance or the execution of investigative measures was declared illegal by the courts of the requested state.210 If it does ultimately arise that a decision to grant cooperation was unlawful and that cooperation should, therefore, have never been obtained by Portugal, then, in our view, in line of principle, the information should not be used or the person prosecuted/imprisoned.211 Nevertheless, the stability of judicial decisions (res judicata) is a fundamental interest of the state as well and has constitutional rank. Therefore, it seems that this view would only be valid until a Portuguese court has delivered a final decision on the penal procedure to which the cooperation act was ancillary. The conclusion might be different if the requested state had from the outset indicated that the granting of the request was conditional and not final or if the reasons why the foreign decision was found to be illegal are also relevant in the light of Portuguese law in such a way as to enable the reopening of an otherwise settled case (e.g. if the evidence is later found to have been obtained through means that are absolutely prohibited by Portuguese law, such as torture). In any event, there is no obligation under international law to refrain from using the obtained information or from

209

See supra Sect. 8.6.1.1. This issue does not arise in the context of the enforcement of foreign sentences, since the custody of the person is already held by the State which granted cooperation, and, therefore, this State may simply cease to enforce the sentence. 211 This solution can be reached through the analogical application of Article 16 LICCM, where the rule of specialty is enshrined: the fundamental idea underpinning this rule is that extradition and other forms of cooperation do not enable the requesting State to exert its punitive power over the concerned person without restrictions. Specialty sets a limitation upon the requesting State’s jurisdiction to adjudicate, such that this State may only exercise its jurisdiction to the extent that this is approved of by the State which enabled that exercise to begin with (see Costa 2019a, p. 433). Thus, if a court in this State comes to rule that a decision to grant cooperation was illegal, then this seems to put in crisis the requesting State’s custody of the person or possession of information. 210

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prosecuting/imprisoning the extradited person: the solutions that were put forward above are based exclusively on Portuguese law. Regarding cases where Portugal is the requested state, no situation can be devised in which a person may be extradited without a final decision by a Portuguese court asserting that extradition is legally admissible, as the Constitution itself requires decisions granting extradition to be taken by a court. If the problem arises from the non-compliance by the requesting state with assurances that had been provided to Portugal, then this is a different issue which carries the effects mentioned above, in reference to the Abu Salem case.212 The case may, however, be different with mutual legal assistance since this type of cooperation may be granted absent judicial review. In this case, the concerned person may not even know that such a request has been granted. In fact, it is possible that no suspect even exists at the moment when a request for, e.g., evidence gathering has been issued. In any event, the competence for ordering or carrying out the most intrusive investigative measures belongs to a judge, and, in such cases, the decision will therefore inherently be a judicial decision. Regarding the issue as to whether Portugal is obliged to “undo” the illegal transfer of a person or of information (namely by making the transfer of evidence subject to the condition that the evidence must be returned if a Portuguese court takes a final decision that the evidence has been transferred illegally), it will virtually never arise regarding either extradition or the enforcement of foreign sentences, for the reasons mentioned above. If Portugal requires assurances (e.g. that the person will be returned at the enforcement stage, that the death penalty will not be applied) from the requesting state in order to extradite, then it is, again, an issue to be dealt with within that context.213 Regarding mutual legal assistance, as a matter of principle, we would again defend that efforts (e.g. diplomatic) should be made in order for the evidence or information not to be used in the foreign legal system, but no legal basis seems to exist requiring the Portuguese state to act in such a manner. In this case, unlike the case with the breach of assurances, the requesting state did not in any way contribute to having the decision granting the cooperation request repealed, and it is difficult to uphold that it has a duty not to use the obtained information or evidence, unless such a duty stems from its own law.

8.6.2

The Framework of Cooperation Within the EU

The information provided on traditional cooperation applies to cooperation within the EU, with the following relevant differences.

212 213

See supra Sect. 8.5.3. See again supra Sect. 8.5.3.

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General Requirements (Access to Information and Suspensory Effect of the Remedy)

A person targeted by a European arrest warrant is informed of the request, as well as of its legal basis under the law of the issuing Member State, before any decision is taken whether or not to surrender him/her.214 The European arrest warrant must be translated into one of the official languages of the executing Member State.215 The law establishes that an interpreter should be appointed to the concerned person, if necessary free of charge,216 but it does not in effect require that information to be translated into his/her language. Nevertheless, as in the context of classic cooperation, this is one instance where the CCP (namely Article 92 thereof) should arguably apply, ex vi Article 34 PT-EAW.217 The same goes for the execution of foreign sentences218 (in the EU context, it is particularly important that the concerned person is informed beforehand because the foreign sentence can be enforced without his/her consent),219 as well as for the European investigation order,220 which must indicate the legal provisions of the issuing Member State that apply in the case.221 Moreover, if the issuing Member State intends the executing state to act in a specific manner which is deemed necessary for the evidence to be valid under the forum law, the order should indicate the relevant provisions of its legal system.222 In any case, where the suspect is unknown, or the investigative measure is carried out confidentially, the concerned person will only become aware of the European investigation order at a later stage.223 The person generally has access to the file before the decision on the request is taken,224 with the exception again of the European investigation order, where access may be excluded: the principle is that the person should be informed of the possibility to lodge a remedy against the order—which does presuppose cognition of (and hence access to) the file or at least of the elements of the file that are relevant for this purpose—but this principle will be displaced if the executing authority finds it necessary to secure the confidentiality of the investigation.225

214

See Articles 3 (1) and 17 (1) PT-EAW. See Article 3 (2) PT-EAW. 216 See Article 17 (3) PT-EAW. 217 Recall supra Sects. 8.6.1.1 and 8.6.1.2. 218 See Articles 6, 8 (5), 10, 16 (2), and 19 (2) to (4) of Law no. 158/2015, and Article 92 CCP. 219 See Article 10 (5) of Law no. 158/2015. 220 See Articles 6, 18 (5), 20 (2) and (3), 25 (3) (a), 36 (1) (a) and (d), and 47 PT-EIO, and Article 92 CCP. 221 See Article 6 (1) (d) PT-EIO. 222 See Article 11 (3) PT-EIO. 223 See Article 45 (5) PT-EIO. 224 See Articles 407 (1) and 408 (3) CCP, applicable ex vi Article 34 PT-EAW; recall the provisions indicated supra Sect. 8.6.1.1. 225 See again Article 45 (5) PT-EIO. 215

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Unlike in extradition cases, appeals from a decision to execute a European arrest warrant are not explicitly granted suspensive effect by the PT-EAW.226 Nevertheless, it is clear that they suspend surrender, because they would become “useless should they not be immediately decided upon”.227 The same applies to the enforcement of foreign sentences.228 PT-EIO does not establish the effects (suspensive or otherwise) of appeals against a decision to execute a European investigation order: it does not contain a provision reflecting the prescription of Article 14 (6) FD-EIO that “a legal challenge shall not suspend the execution of the investigative measure unless it is provided in similar domestic cases”. It does, however, explicitly call for the application of the CCP,229 which means that a challenge, where admissible, will or will not have a suspensive effect depending on whether or not it would become useless should it not be immediately decided upon. As for the transfer of evidence more specifically, PT-EIO did faithfully reproduce the norms contained in Article 13 (2) FD-EIO.230 Thus, the transfer of evidence may be suspended pending a decision regarding a legal remedy unless the issuing state indicates in the European investigation order that an immediate transfer is essential for the proper conduct of its investigations or the preservation of individual rights,231 and the transfer of evidence must be suspended if it would cause serious and irreversible damage to the concerned individual.232 No provision in the statutes regulating the European arrest warrant and the enforcement of sentences of other Member States suggests that challenging the foreign request in the foreign legal system has a suspensory effect on cooperation.233 Regarding the European investigation order, Article 45 (6) and (7) PT-EIO establishes that the issuing authority and the executing authority shall inform each other about the legal remedies sought against the issuing, the recognition or the execution of a European investigation order and that the issuing state shall take into account a 226

See Article 24 PT-EAW. For further detail, recall supra., Sect. 8.6.1.1. 228 Law no. 158/2015, of 17 September (implementing Framework Decision 2008/909/JHA, of 27 November 2008, and Framework Decision 2008/947/JHA, also of 27 November 2008) contains no provision on the possibility to appeal a decision by the Portuguese courts to enforce a foreign sentence. However, the general rule in Portuguese criminal procedure is that judicial decisions can be appealed unless otherwise stated in the law (Article 399 CCP), and, although Law no. 158/2015 (unlike, e.g., LICCM and PT-EAW) does not call for the subsidiary application of the CCP, it is clear that the enforcement of any sentence by the Portuguese State, even if in the name of a foreign State, is a penal decision and is, consequently, subject to the general rule of Article 399 CCP. 229 See Article 45 (1) and (4) PT-EIO. 230 See Article 23 (3) and (4) PT-EIO. 231 Article 23 (3) PT-EIO. 232 Article 23 (4) PT-EIO. 233 However, as in classic cooperation, if a person does successfully challenge the issuing of a European arrest warrant or of a request for the enforcement of a foreign sentence before the courts of the requesting State, then this will naturally produce consequences upon the cooperation procedure running in Portugal, to the extent that this translates into a ground for refusing the request, or in the case where the requesting State itself withdraws the request. 227

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successful challenge against the recognition or execution of a European investigation order in accordance with its own national law.234 PT-EIO does not, however, explicitly rule that the execution of the order shall be suspended pending an appeal against its issuing. Regarding the specific case of the transfer of evidence, the abovementioned rules will arguably also apply as Article 23 (3) and (4) PT-EIO and Article 13 (2) FD-EIO do not make any differentiation based on whether the remedy is lodged against the execution or the issuing of the order. Accordingly, the transfer may be suspended unless the issuing Member State indicates that an immediate transfer is essential, and it must be suspended if it would cause serious and irreversible damage to the person concerned.

8.6.2.2

Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

There are no provisions entitling the concerned individual to be aided by the Portuguese state in finding a lawyer in the foreign state either in European arrest warrant proceedings or in the enforcement of foreign sentences. The relevant provisions of Directive 2013/48/EU, of 22 October 2013, on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings are Article 10 (4) and Article 10 (5), which created a right to “dual legal representation” in European arrest warrant proceedings. The first provision establishes that the executing Member State shall inform requested persons that they have the right to appoint a lawyer in the issuing Member State so that he/she may assist the lawyer in the executing state by providing him/her information and advice. The latter establishes that where requested persons wish to exercise this right to appoint a lawyer in the issuing state and do not already have one, the executing state shall promptly inform the issuing state so that it may, without undue delay, provide requested persons with information to facilitate them in appointing a lawyer there. The first provision was already accommodated by the Portuguese legal system.235 The latter was not, and it has not been implemented. Arguably, this is a case where the Directive shall have a direct effect, as the term for its transposition has expired on 27 November 2016.236 No such provision exists either in relation to the enforcement of sentences proffered by other Member States. As for the European investigation order, although the FD explicitly reminds Member States that they should implement it “taking into account”, inter alia, Directive 2013/48/EU,237 no provision in the FD itself provides for a right to dual legal representation or for a duty to assist the concerned person in finding a lawyer in the other Member State.

234

See further infra Sect. 8.6.2.3. See Costa (2015), pp. 73 f. 236 See Article 15 (1) of the Directive. 237 See § 15. 235

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As noted above, a person sought pursuant to a European arrest warrant should be appointed an interpreter and is entitled to have certain information translated into his/her language. The same should apply to the execution of foreign sentences,238 because this cooperation mechanism requires the deployment by Portugal of its penal apparatus, and arguably also to the issuing of a European investigation order by Portugal, if the person is a defendant in a criminal procedure taking place there, but probably not to the execution of a European investigation order by Portugal: this would be desirable, but there is no legal basis to support such a solution.

8.6.2.3

Ineffectiveness of Ex Post Facto Judicial Review

Concerning the European arrest warrant and the enforcement of foreign sentences, Portuguese norms implementing EU cooperation mechanisms do not explicitly regulate the consequences of the situation where Portugal has requested cooperation and is later on informed that the granting of legal assistance or its execution was declared illegal by the courts of the executing state. Nevertheless, if it ultimately emerges that the decision of this state to cooperate was unlawful under its own law, then, in our view, even more clearly than in traditional cooperation, the person should not be prosecuted or imprisoned since the decision declaring cooperation to be illegal should also be recognised.239 As for the European investigation order, the principle also holds valid that the revocation of the executing Member State’s decision to cooperate should have repercussion in the issuing Member State, since any other solution would be inconsistent with the principle of mutual recognition. Furthermore, in the implementation of the FD-EIO, the PT-EIO provides for more detailed rules on this issue, with the revocation of the decision to cooperate carrying ulterior consequences: while there is no obligation as such to transfer the information or evidence back to the issuing state, the law does explicitly provide that the executing authority, when transferring evidence obtained in the execution of an order, shall indicate whether it requires it to be returned by the issuing state as soon as it is no longer necessary there.240 It further establishes that if the objects, documents or data gathered by the executing state are relevant for other proceedings in the issuing state, the former may, at the explicit request of the issuing authority and after consulting with this state, transfer them temporarily under the condition that they be returned as soon as

238

See Articles 6, 8 (5), 10, 16 (2), and 19 (2) to (4) of Law no. 158/2015, and Article 92 CCP. This solution can be reached through an analogical application of Article 7 FD-EAW and of Article 25 of Law no. 158/2015 (concerning the enforcement of foreign sentences), which enshrine the specialty rule. However, then again, this solution seems unable to supersede the respect for the stability of the res judicatae of the Portuguese State, such that, at a certain point, the revocation of the decision to cooperate by the executing Member State will be immaterial in the Portuguese legal system (unless there are grounds for an extraordinary appeal: revision): see Caeiro and Costa (2012), pp. 542, 571 f. and 585. 240 See Article 23 (5) PT-EIO. 239

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they are no longer necessary there or at any other time or occasion agreed to between the executing and the issuing authorities241—which arguably may include the condition that the European investigation order is not later revoked by the issuing state. Yet, there is no rule, either in the FD-EIO or in the PT-EIO, prohibiting information sent to the issuing Member State from being used as evidence in its criminal proceedings: as already noted, the FD-EIO and the PT-EIO simply declare that the issuing Member State shall “take into account” successful challenges brought against the order in the executing Member State “in accordance with its own national law”. As has been emphasised in national and international literature on the topic, the FD-EIO did not create an actual “exclusionary rule” that would render it impossible to use in trial evidence obtained through a later revoked European investigation order.242 Consequently, the only rules on the exclusion of evidence that can be safely said to apply to Portugal as an issuing Member State are those in force in its own legal system (including those originating in international or European law and received by this legal system).243 It has been advocated in Portuguese legal literature that the exclusionary rules of the executing Member State should also preclude the use of the evidence in a criminal procedure being conducted in Portugal.244 This position should be endorsed de iure condendo, but for the time being it appears to have an insufficient reflection in positive law and in case law. As a concluding note, it should be underscored that in Portugal, unlike the case in some Member States, national exclusionary rules do apply in transnational cases as well and not only to evidence gathered through investigative measures fully conducted in Portuguese territory.

241

See Article 23 (6) PT-EIO. See Ramos (2018), p. 153. The FD makes an explicit caveat in Article 14 (7): “Without prejudice to national procedural rules Member States shall ensure that in criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the European investigation order”. Still, this provision stays a long way from actually entitling the person to the exclusion of the evidence. In fact, PT-EIO did not even echo the caveat made in the FD-EIO, perhaps because the Portuguese legislator considered that other rules in force in the Portuguese procedural system already ensure respect for “the rights of the defence and the fairness of the proceedings”, which poses a clear sign that the Portuguese legislator indeed did not regard this caveat as an exclusionary rule. 243 Recall the outline of these rules supra Sect. 8.2.1.3. 244 Based on a conjugation of Portuguese rules on exclusion of evidence—notably Article 32 (8) Constitution and Article 126 CCP—with the principle of the higher level of protection of fundamental rights and the principle of assimilation (horizontal) or even the principle of mutual recognition: see Ramos (2018), p. 153. 242

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References Albuquerque PP de (2009) Comentário do Código de Processo Penal à luz da Constituição da República e da Convenção Europeia dos Direitos do Homem, 3.ª ed. Universidade Católica Editora, Lisboa Andrade M da C (1992) Sobre as Proibições de Prova em Processo Penal. Coimbra Editora, Coimbra Antunes MJ (2017) Direito Processual Penal. Almedina, Coimbra Bachmaier Winter L (2015) Transnational evidence – towards the transposition of Directive 2014/ 41 regarding the European investigation order in criminal matters. EUCRIM 2:47 f Caeiro P (1998) Proibições Constitucionais de Extraditar em Função da Pena Aplicável. Revista Portuguesa de Ciência Criminal 8:7 s Caeiro P (2004) O procedimento de entrega previsto no Estatuto de Roma e a sua incorporação no Direito Português. Coimbra Editora, Coimbra, pp 69 f Caeiro P (2010a) Fundamento, Conteúdo e Limites da Jurisdição Penal do Estado. O Caso Português. Coimbra Editora | Wolters Kluwer, Coimbra Caeiro P (2010b) Jurisdiction in criminal matters in the EU: negative and positive conflicts, and beyond. KritV 93:366 f Caeiro P (2020) “Scenes from a Marriage”: trust, distrust and (re)assurances in the execution of a European Arrest Warrant. In: Carrera S, Curtin D, Geddes A (eds) 20 year anniversary of the Tampere Programme. Europeanisation Dynamics of the EU Area of Freedom, Security and Justice. European University Institute, pp 239 f (DOI: 10.2870/66646) Caeiro P, Costa MJ (2012) “Portugal”. In: Ligeti K (ed) Toward a prosecutor for the European Union – vol 1: a comparative analysis. Hart, Oxford, pp 540 f Caeiro P, Fidalgo S (2009) The Portuguese experience of mutual recognition in criminal matters: five years of European Arrest Warrant. In: Vernimmen-Van Tiggelen G, Surano L, Weyembergh A (eds) The future of mutual recognition in criminal matters in the European Union/L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne. Editions de l’Université de Bruxelles, Bruxelles, pp 445 f Caeiro P, Fidalgo S (2015) O mandado de detenção europeu na experiência portuguesa: tópicos da primeira década. In: Pedro Caeiro (coord.) Temas de Extradição e Entrega. Almedina, pp 157 f Caeiro P, Fidalgo S, Rodrigues JP (2018) The evolving notion of mutual recognition in the CJEU’s case law on detention. Maastricht J Eur Comp Law 25:689 f Canotilho JJG (2002) Direito Constitucional e Teoria da Constituição, 6.ª ed. Almedina, Coimbra Canotilho JJG, Brandão N (2019) A extradição de Portugal para o Brasil de cidadãos portugueses naturalizados. Revista Direito GV 15:1 f Canotilho JJG, Moreira V (2007) Constituição da República Portuguesa Anotada, Vol I, 4.ª ed. revista. Coimbra Editora, Coimbra Colaço AB (1997) O Procedimento Extradicional na Óptica do Operador Judiciário. Revista Portuguesa de Ciência Criminal 7:639 f Correia E (1963) Direito Criminal (com a colaboração de Figueiredo Dias), vol I. Coimbra, Almedina Costa MJ (2014) Dedere Aut Judicare? A Decisão de Extraditar ou Julgar à Luz do Direito Português, Europeu e Internacional. Instituto Jurídico da Faculdade de Direito da Universidade de Coimbra, Coimbra Costa MJ (2015) Comentário à Proposta de Directiva do Parlamento Europeu e do Conselho relativa ao Apoio Judiciário Provisório para Suspeitos ou Arguidos Privados de Liberdade e ao Apoio Judiciário em Processos de Execução de Mandados de Detenção Europeus; In Pedro Caeiro (org.), A Agenda da União Europeia sobre os Direitos e Garantias da Defesa em Processo Penal: A ‘Segunda Vaga’ e o seu Previsível Impacto sobre o Direito Português. Instituto Jurídico da Faculdade de Direito da Universidade de Coimbra, Coimbra, pp 61 f Costa MJ (2017) The emerging EU extradition law: Petruhhin and beyond. New J Eur Crim Law 8:192 f

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Costa MJ (2019a) Extradition law: reviewing grounds for refusal from the classic paradigm to mutual recognition and beyond. Brill | Nijhoff, Leiden Costa MJ (2019b) Policies of International Friendship in Judicial Cooperation in criminal matters: the non-extradition of Brazilian and Portuguese Nationals to Third States – a comparison with EU law. Revista Brasileira de Direito Processual Penal 5:773 f Dias J de F (1974) Direito Processual Penal, Vol 1, Coimbra Editora, Coimbra Dias J de F (1985) Algumas questões em tema de extradição e de sede do crime [anotação]. Revista de Legislação e Jurisprudência 117:340 f., and 118 (1985), pp 14 f Dias J de F (1995) Nótulas sobre temas de direito judiciário (penal). Revista de Legislação e Jurisprudência 127:354 f., and 128 (1995), pp. 8 f Eckart C (2012) Promises of states under international law. Bloomsbury Figueiredo JMN (2015) Extradição Activa na Lei de Cooperação Judiciária Internacional em Matéria Penal. In: Pedro Caeiro (org.) Temas de Extradição e Entrega, Almedina, pp 11 f International Law Commission: Report of the International Law Commission, Fifty-seventh session (2 May-3 June and 11 July-5 August 2005), General Assembly, Sixtieth session, Supplement No. 10 (A/60/10), United Nations, New York, 2005 Klip A (2018) Obrigações decorrentes da Diretiva sobre a Decisão Europeia de Investigação para os Estados-Membros – o exemplo de Portugal e dos Países Baixos. Anatomia do Crime 7:31 f Konnova E (2018) Establishing the legal nature of unilateral acts of States. J Belarusian State Univ Int Relat 1:41 f Lemos MÂM de (2010) O direito ao recurso da decisão condenatória enquanto direito constitucional e direito humano fundamental. In: Manuel da Costa Andrade et al (eds) Estudos em Homenagem ao Prof. Doutor Jorge de Figueiredo Dias, Vol 3. Coimbra Editora, Coimbra, pp 923 f Malanczuk P (1997) Akehurst’s modern introduction to international law, 7th edn. Routledge, New York Matos RJB de (2013) O Mandado de Detenção Europeu e a Dupla Incriminação. Rei dos Livros, Lisboa Pereira LS (2003) Alguns aspectos da implementação do regime relativo ao Mandado de Detenção Europeu: Lei no. 65/2003, de 23 de Agosto. Revista do Ministério Público 96:39 f Pimenta J da C (1991) Código de Processo Penal Anotado, 2.ª ed. Rei dos Livros, Lisboa Ramos VC (2018) Meios processuais de impugnação da Decisão Europeia de Investigação – subsídios para a interpretação do artigo 14. da Directiva com uma perspectiva portuguesa. Anatomia do Crime 7:113 f Ramos VC (2019) Decisão Europeia de Investigação. Revista do Centro de Estudos Judiciários II:77 f Rocha MAL, Martins TA (1992) Cooperação Judiciária Internacional em Matéria Penal: Comentários. Aequitas/Editorial Notícias, Lisboa Serrano MM (2000) Extradição. Regime e praxis. In: José Manuel da Cruz Bucho et al (eds) Cooperação Internacional Penal, Vol I. Centro de Estudos Judiciários, Lisboa, pp 13 f Silva GM da (2008) Curso de Processo Penal, Vol 2, 4.ª ed. Verbo, Lisboa Sousa JHGde (2006) Das nulidades à ‘fruit of the poisonous tree doctrine’ (escutas telefónicas e efeito à distância). Revista da Ordem dos Advogados, Ano 66:703 f Souza EED de, Oliveira RS (2015) Sobre a detenção e as medidas de coacção nos processos de extradição e de entrega (em execução do mandado de detenção europeu). In: Pedro Caeiro (coord.) Temas de Extradição e Entrega, Almedina, pp 115 f Veiga AM (2012) Da Relevância da Vontade do Visado na Extradição Passiva e na Execução do Mandado de Detenção Europeu. Revista Portuguesa de Ciência Criminal 22:597 f

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Miguel João Costa Advisor to the Portuguese Constitutional Court, Guest Lecturer at University of Coimbra, Portugal. Pedro Caeiro Associate Professor of Criminal Law, Criminal Procedure, University of Coimbra, Portugal.

Chapter 9

Country Report “Switzerland” Frank Meyer

9.1 9.1.1

Overview Judicial Protection in Swiss National Law

The Swiss Federal Constitution (Bundesverfassung [BV]) guarantees access to the courts in two articles. Article 29a BV, adopted by popular vote (Referendum) on 12 March 2000, bestows on individuals the right to have their case in a legal dispute determined by a judicial authority.1 The older Art. 30 para. 1 BV specifies that any person whose case needs to be judicially decided has the right to have their case heard by a legally constituted, competent, independent and impartial court.2 It explicitly prohibits ad hoc courts. These articles extend to all kinds of legal disputes. They are broader than Art. 13 of the European Convention on Human Rights (ECHR) in the sense that judicial protection must be provided by a court.

1

Art. 29a BV—Guarantee of access to the courts: In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case. 2 Art. 30 BV—Judicial proceedings: 1. Any person whose case falls to be judicially decided has the right to have their case heard by a legally constituted, competent, independent and impartial court. Ad hoc courts are prohibited. F. Meyer (*) University of Zurich, Zurich, Switzerland © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_9

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This guarantee is understood as a core tenet of Swiss constitutional law. It is anchored in the Rechtsstaatsprinzip,3 which is itself one of the guiding principles of Swiss Mutual Legal Assistance Law.4 The individual right to judicial protection covers the entire range of mutual legal assistance (MLA) matters. The Swiss Government and the Federal Court have categorised mutual legal assistance as an administrative procedure.5 As such, legal guarantees in the field of administrative law automatically apply to MLA affairs. This consequence has never been called into question. Rather, the reform of Swiss mutual legal assistance law was driven by a desire to bring statutory rules and ordinances in line with constitutional requirements. A more complicated issue is how this right has been implemented in the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) and the Federal Supreme Court Act (Bundesgerichtsgesetz [BGG]). Despite all intricacies, it is fair to say that all final rulings by federal or cantonal authorities are subject to judicial review.6 As regards extradition, any decision having a direct impact on the right to liberty can be challenged before a court.

9.1.2

Institutional and Procedural Framework of Transnational Criminal Proceedings

9.1.2.1

Granting Authority

Granting powers vary according to the type of assistance requested. Authority to grant extradition is exclusively vested in the Federal Bureau of Justice (Bundesamt für Justiz [BJ]; see Art. 17 para. 2 IMAC), which is a division of the Ministry of Justice and the police in Bern. Irrespective of the applicable bilateral communication channel, foreign requests need to end up at the BJ. The IMAC confers various functions on the bureau. Its officers register and review requests, order provisional

3

Meyer (2020a), para. 253, 261, 263. Art. 2 IMAC—Foreign proceedings: A request for cooperation in criminal matters shall not be granted if there are reasons to believe that the foreign proceedings a. do not meet the procedural requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, or the International Covenant on Civil and Political Rights of 16 December 1966; b. are being conducted so as to prosecute or punish a person on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality; c. could result in aggravating the situation of the defendant for any of the reasons mentioned under letter b; or d. have other serious defects; Federal Office of Justice (2009), pp. 17–18. 5 Meyer (2020a), para. 248. 6 It is a much more complicated question whether all individuals and entities affected by MLA measures are actually entitled to appeal these rulings. 4

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measures, set in motion administrative procedures, order arrests7 and ultimately (after hearing the requested person) determine whether all applicable requirements for extradition have been satisfied. Orders and rulings of the BJ do not require court approval for validation or confirmation. However, in order to comply with the right to judicial protection, all decisions taken by the BJ (not being a judicial authority but a part of the administration) that impinge on the right to personal liberty are subject to court review (see below for further detail). Mutual legal assistance (kleine Rechtshilfe) involves more actors at the federal and cantonal levels (see Art. 16, Art. 80 para. 1 IMAC). Granting power is reserved for the law enforcement agency, which is territorially and functionally competent to order or request a given measure under national procedural law, namely cantonal or federal public prosecutors.8 The BJ merely acts as a conduit where international law does not allow direct contact between law enforcement agencies. In these cases, the BJ runs a cursory admissibility test before passing the request on to the competent national authority. This agency will then assume responsibility and remain in charge of the entire execution and approval process. Its final ruling (Schlussverfügung) on the admissibility of the request and the consequent transfer of evidence or other fruits of its assistance does not presuppose court approval (or permission by the BJ). But it may be challenged in court afterwards provided that the complainant is entitled to judicial review pursuant to the IMAC. Structures are more complex as far as the execution of foreign judgments is concerned. Beside the BJ, which acts as a letter box, correspondent and conduit for foreign law enforcement agencies, the relevant cantonal agencies need to be involved, in whose competence it falls whether to seek or implement a transfer of proceedings or execution of judgments. The BJ must not strip cantonal agencies of their jurisdiction or force their hand to seek foreign assistance. With respect to the execution of foreign judgments in Switzerland, authorisation by a competent cantonal court is required by the procedure, which resembles the German exequatur procedure.9 It is only after a positive court decision that cantonal authorities (usually the prosecutor’s office) would ultimately decide whether to satisfy a foreign request. In the opposite direction, the cantonal prosecutor will wait for the foreign exequatur decision before a final decision whether to seek execution abroad is taken in full awareness of its terms and conditions (as set out in the foreign exequatur decision).

7 Strikingly, arrest warrants for the purpose of extradition are issued by an administrative agency. While the requested person must be presented before a district court following his arrest, the power to order deprivations of liberty during this phase rests with the BJ. 8 Coercive measures require authorisation by a special court (Zwangsmassnahmegericht/compulsory measures court [official translation]) which issues search or surveillance warrant upon request by law enforcement agencies. 9 A notable difference is that Switzerland follows the Vollstreckungsmodell (execution model) instead of the Umwandlungsmodell (transformation model).

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Judicial Review

The system of judicial review is of recent origin and is laid down in the IMAC, the BGG and the Strafbehördenorganisationsgesetz (StBOG). Its core ideas, which have left their visible imprint on the institutional architecture, were concentration and centralisation. The legislature sought to reduce the number and complexity of appeals. All relevant aspects should be dealt with in one final granting decision, which could then be challenged and reviewed by a court. Legal reformers agreed to relieve cantonal courts of these duties and refer MLA complaints to federal courts for the sake of efficiency and expertise.10 These structures generally apply to all types of transnational proceedings. As a general rule, only final rulings of the competent MLA authority (Schlussverfügung) are subject to appeal (Art. 80e para. 1 IMAC). There are two important exceptions to this limitation. First, interim rulings may be appealed separately (and earlier) in rare cases and under strict conditions stipulated in Art. 80e para. 2 IMAC. This paragraph exclusively refers to the seizure of assets or valuables and the presence of persons involved in the foreign proceedings in situations when limiting review to final rulings becomes untenable because persons involved might suffer immediate and irreparable prejudice. The onus to satisfy these admissibility requirements is on the complainant. Representing an exception to general review structures, Swiss courts have come to interpret Art. 80e para. 1 restrictively. As a result, numerous MLA measures, which might have serious impact on human rights, cannot be appealed, for example, where measures or other actions are not the subject of a final ruling or persons who might be affected are not entitled to lodge complaints before the federal courts. Second, deprivations of liberty, as well as decisions confirming or prolonging arrests, pose particularly serious risks that cannot wait and must be brought permissibly to the attention of courts immediately, namely provisional arrest (Art. 44 IMAC), arrest warrants with a view to extradition (Art. 47), appeals against arrest warrants (Art. 48 para. 2 IMAC) and denial of release from detention (Art. 50 para. 3 cl. 2 IMAC). The final ruling is the decision on extradition (Auslieferungsentscheid, Art. 55 paras. 1, 3, and Art. 25 IMAC), which is subject to review anyway according to general rules. Since the reform of the IMAC, the power to review activities in the area of MLA is exclusively vested in the federal court system. Its review mechanism is two-tiered. The standard appeal procedure is a complaint (Beschwerde) to the Federal Court of Criminal Law (Bundesstrafgericht; Art. 25, 80e IMAC).11 This court has set up a By virtue of Art. 25 para. 1 IMAC first instance rulings by cantonal and federal authorities are subject to an appeal directly to the Appeals Chamber of the Federal Criminal Court unless the IMAC stipulates otherwise. 11 By virtue of Art. 80h IMAC any person who is personally and directly affected by a mutual assistance measure and has a legitimate interest in that measure being annulled or modified (lit. b) is entitled to exercise this right to appeal. 10

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specialist chamber for MLA matters (Beschwerdekammer; Art. 37 para. 2 lit. a no. 1 Strafbehördenorganisationsgesetz [StBOG], SR 173.71). Its decision can be challenged (Beschwerde in öffentlich-rechtlichen Angelegenheiten) under even stricter conditions before the Federal Supreme Court (Bundesgericht). Article 84 para. 1 of the Federal Supreme Court Act (Bundesgerichtsgesetz [BGG]) allows the court to reject appeals that do not involve extradition, seizures, transfers of property or transfer of secret information and that are not of particular increased importance. Cases of particular importance (besonders bedeutender Fall) include serious risks of violations of fundamental procedural principles or serious shortcomings in the foreign proceedings (Art. 84 para. 2 BGG). The Bundesgericht practices extraordinary deference. It interprets its jurisdiction very restrictively. And even those appeals, which surpass the high admissibility threshold, are hardly ever successful. Standard appeals of criminal procedure, which generally would be available against most requested MLA measures, are precluded in favour of the leges speciales in the IMAC. Other authorities, including the Federal Office of Justice (Bundesamt für Justiz [BJ]), are not tasked with judicial review responsibilities. As regards the execution of foreign judgments, one may object that the exequatur decision itself is a form of judicial review or at least a layer of judicial protection. Without an official seal of approval from the competent court, the enforcement of a judgment must not be continued. The court’s decision guarantees that all legal requirements have been met. However, before adopting a final ruling, any granting authority is required to notify potentially concerned individuals and legal entities and honour the right to be heard.12 In fact, federal and cantonal agencies are expected under Swiss law to adhere to legal standards and apply the law objectively. They guarantee (non-judicial) legal protection against illegal or overreaching requests and executions as part of their daily professional routine. In extradition cases, Art. 52 IMAC explicitly commands that the request and the documents supporting it shall be submitted to the defendant and to his or her legal adviser. Paragraph 2 demands that the defendant be questioned briefly about his/her personal circumstances, and especially his/her nationality and relationship with the requesting state, and asked if and for what reasons he/she raises objections to the arrest warrant or his/her extradition. In addition, counsel for those individuals and legal persons may approach authorities at every stage of the MLA and extradition process to voice concerns, raise objections or request protective measures. Hence, the decisive legal battles are often fought throughout the administrative proceedings and not in court.

12

Art. 52 IMAC contains a specific guarantee of the right to be heard in the extradition process. In the area of mutual assistance notification requirements are not very expansive; for instance, persons living abroad will be notified only if they have nominated a domestic recipient or receive word from their domestic bank or wealth manager in cases of seizures of financial information. Overall, many persons whose privacy or property rights might be affected must not be informed under federal law which raises concerns with respect to the ECHR-compliance of the present system.

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Discretion in the Granting of a Request and Scope of Judicial Review

The scope of discretion depends on the legal framework for cooperation in relation to the requesting state. Under the IMAC, which governs all procedures of international cooperation in criminal matters unless other federal acts or international agreements provide otherwise, federal and cantonal authorities enjoy a considerable degree of discretion. The most prominent provision, Art. 1a IMAC, states that Swiss sovereignty, security, public order or similar essential interests must be taken into account.13 However, many bilateral or multilateral agreements that Switzerland has ratified over the years stipulate stricter requirements and sometimes explicit duties. Moreover, Swiss authorities have adopted a cooperation-friendly approach. The IMAC itself expresses a commitment to facilitate cooperation expeditiously and to the extent legally permissible. If a foreign request meets all statutory requirements spelt out in the IMAC, it will usually be granted. Where, on the other hand, general or special grounds for inadmissibility have been established, the IMAC sets forth in unmistakable terms that requests “shall not be granted” (Arts. 2, 3, 5), “shall be rejected” (Art. 4), “shall not be permitted” (Art. 6 para. 2) or “shall be denied” (Art. 37 paras. 2, 3), leaving authorities no choice but to refuse cooperation. Interestingly, when the social rehabilitation of the requested person is at stake, extradition “may be denied” merely. In addition, with respect to proceedings pending in Switzerland, “assistance may be denied”.14 Article 66 para. 2 IMAC continues to condone assistance “if the proceedings carried out abroad are not directed solely against the defendant who is residing in Switzerland, or if the execution of the request serves to exonerate him”. The scope and depth of review differ depending on the legal requirements in question. While the nature of the offence is scrutinised carefully, as well as whether some strict legal safeguards like ne bis in idem (especially with respect to the facts of the case) are violated, other aspects are subject to very deferential judicial control only.15 This deference often reflects the limited scope of scrutiny traditionally exercised by the granting authorities themselves in typical MLA affairs. The principle of mutual trust is an accepted and routinely used instrument to determine the depth of legal scrutiny. Daily practice has brought about an unofficial three-tier system, which sorts countries into classes of differing trustworthiness.16 With respect to EU Member States, Switzerland applies the most generous standard and 13

The decision to invoke the fundamental interests-clause rests with the Federal Department of Justice and Police, which highlights the political high-level nature of this limitation, Art. 17 para. 1 cl. 1 IMAC. 14 See Meyer (2020a), para. 286. 15 This would apply to prison conditions or fair trial standards unless the requested person corroborates his assertions convincingly. 16 States with mature democratic traditions, which do not give rise to human rights concerns, states, for which violations cannot be excluded, but are presumed to provide sufficient guarantees and

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refrains from second-guessing foreign information until it receives reliable and concrete information that raises no doubts. The same goes for other reliable multilateral partners, namely (with some crucial exceptions) the Council of Europe Member States. In such cases, the Bundesstrafgericht will merely verify whether the basis, limits and consequences of trust have been determined correctly. Third countries that in the past have broken assurances or whose criminal justice systems are known to pose an elevated risk of human rights infringements are, by contrast, subject to stricter controls or are even excluded from the list of cooperation partners. In the rare event that invoking a(n established) ground for refusal is left to the competent authority, this statutory power will be reviewed for arbitrariness (and decisive mistakes of fact, Art. 393 para. 2 lit. b StPO [Strafprozessordnung/Code of Criminal Procedure]) only (Art. 393 para. 2 lit. a StPO). In some cases, like the aforementioned Art. 1a IMAC, judicial review is not available at all (Art. 26 IMAC). Since Art. 1a IMAC may only be invoked by the Federal Department of Justice and Police (Swiss Ministry of Justice), the review mechanism is of a purely political nature and must be lodged with the Federal Council (Bundesrat), a joint body that constitutes the Swiss Federal Government.

9.1.2.2.2

Differences Between Incoming and Outgoing Requests

Legal preconditions differ slightly as a consequence of the structural and functional differences between outgoing and incoming requests.17 The BJ enjoys more leeway in declining a request for reasons of expedience. By virtue of Art. 30 para. 4 IMAC, it may do so if the importance of the offence does not justify the proceedings. Article 19 facilitates a choice of procedure “if the defendant is abroad and if, according to the laws of the state to which the request is to be made”. In these circumstances, preference is to be given to the procedure that appears to ensure better social rehabilitation. Furthermore, cantonal authorities are granted a limited right to bring a legal complaint against the BJ’s rejection of the transfer of a Swiss request (Art. 25 para. 3 IMAC), whereas they have no such right with respect to incoming requests. Complaints may also be brought against the BJ’s choice of procedure, according to Art. 19 IMAC. Defendants or other individuals concerned also face considerable differences when the request is incoming and when it is outgoing. Swiss requests can be challenged only in very rare cases, namely transfer of proceedings or execution of judgments, provided that the defendant resides in

protections against violations as state parties to the ECHR, and states with increased risk of torture and mistreatment, which generally exclude cooperation. 17 E.g. Art. 30 IMAC- Swiss requests: 1. Swiss authorities may not address to another state requests which they themselves could not grant under this Act.

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Switzerland (Art. 25 Abs. 2, 2bis IMAC).18 All other outgoing requests are removed from scrutiny by the requesting state for this group. Moreover, domestic authorities might be obligated to seek cooperation for reasons of constitutional law. Such positive obligations could limit the latitude for refusal and review. The biggest differences exist in comparison with international tribunals. Cooperation between Swiss authorities and international tribunals has been curbed drastically in order to channel judicial control powers and responsibilities to the international tribunal (International Criminal Court, ICC); compare Art. 19 para. 4 Bundesgesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof (ZISG, SR 351.6); Art. 20 para. 2 ZISG; Art. 49 ZISG; Art. 50 lit. a ZISG; Art 50 lit. b–c; Art. 51 paras. 1, 2 ZISG; and Art. 51 para. 3 ZISG. This approach flows from an understanding that this kind of cooperation in a supranational issue with Swiss authorities acting as agents of the court and the international community rather than representatives of Switzerland vis-à-vis agencies of a foreign state.

9.1.2.2.3

Right to Appeal

As to who is entitled to challenge MLA actions and decisions in court depends on the type of proceedings. Article 25 IMAC maintains a general right to appeal against rulings by cantonal authorities as well as against decisions by the Federal Criminal Court against the BJ. Article 80h IMAC contains an overlapping right of appeal for the Federal Office in all matters related to mutual legal assistance proper (lit. a). Cantonal authorities are entitled to appeal against the decision of the Federal Office not to submit a request to foreign authorities (Art. 25 para. 3 IMAC). Whereas the legal situation on the side of the state authorities seems quite clear, it is rather murky and perfunctory as regards the addressees of the measures or other persons affected by them. In extradition matters, it is obvious that the requested individual has the right to challenge deprivations of his or her liberty as well as his/her ultimate surrender. The chapter on MLA, on the other hand, contains a specific provision that reserves the right to judicial protection to those persons who are personally and directly affected by a mutual assistance measure and have a legitimate interest in that measure being annulled or modified (Art. 80h lit. b IMAC). The defendant in foreign proceedings has no general right to participate or appeal. Article 21 para 3 IMAC provides that persons who are the subject of foreign criminal proceedings may challenge rulings only if they are personally and directly affected by a mutual assistance measure and if they have an interest worthy of legal 18 Art. 25 IMAC - Appeal: (. . .) 2. An appeal against a Swiss request to another state is only admissible if that state is requested to assume responsibility for the criminal proceedings or the execution of a criminal judgment. In this case, only defendants who are habitually resident in Switzerland are entitled to appeal. 2bis. An appeal against a Swiss request for transferring responsibility for the execution of a criminal judgment in connection with a transfer under Article 101 paragraph 2 is admissible.

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protection in the measure being revoked or changed. His or her special procedural status in the requesting state, hence, does not translate into a special status in the requested state. The requesting state enjoys no legal status whatsoever in domestic MLA proceedings. It may neither lodge petitions nor appeal rulings. In the same vein, victims have no voice either. When it comes to challenging requests for cooperation, it is necessary to distinguish between defendants and other persons concerned. Extradition requests can obviously be challenged by the requested defendant but not by others, including his or her family. In MLA matters, the scope of judicial protection very much depends on the interpretation of Art. 80h lit. b IMAC. The federal courts have many times substantiated its meaning and have produced vast amounts of case law that details personal and formal requirements for a vast array of measures and specific grounds for appeal. The proportionality of measures is targeted frequently, often in relation to asset freezes, which could last for years.19 The category of “person who is personally and directly affected by a mutual assistance measure and has a legitimate interest in that measure being annulled or modified” encompasses holders of bank accounts, tenants, homeowners, car owners and legal entities whose representatives and employees are being interrogated in relation to their professional activities.20 The interpretation is dominated by a physical, possession-based understanding of being affected. This notion can be traced to Art. 9a of the MLA ordinance (Verordnung über Internationale Rechtshilfe in Strafsachen [IRSV], SR 351.11). As a result, persons factually affected in connection to their possessions will usually find an avenue to seek judicial relief. This is not the case for those persons whose rights (privacy, property) might be affected by coercive measures or transfers of evidence but who are not the direct subject of an investigative measure (eavesdropping, interrogation) and are not in direct possession of their goods or of information that contains their personal data.21 This state of affairs has been much criticised but to little avail.

19

Meyer (2020b), para. 873. Meyer (2020a), para. 303–305. 21 For instance, witnesses enjoy a right to appeal but not third parties who are personally affected by the subject of the testimony or whose activities were revealed during questioning; this exclusion is a serious strain on the rights of actual and potential defendants. In the same vein, ultimate beneficial owners are not authorised to challenge the seizure and transfer of bank accounts. These cases need to be distinguished from situations that involve the disclosure and transfer of protected data of third parties though courts have not established clear-cut bright-line rules in this regards. For instance, third parties could lodge appeals against MLA measures not addressing them personally if they have reason to fear that personal data, banking information, professional and business secrets that enjoy protection under federal and cantonal law could be revealed unlawfully. Legal entities might therefore be entitled to challenge the seizure and transfer of company documents or documents that contain company secrets even if those documents are not in the possession of the company or its legal representatives. Companies, which keep documents on behalf 20

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Similarly, a lack of minimum guarantees in foreign proceedings as defined in Art. 2 IMAC is not an admissible ground for appeal for everyone. Such safeguards may only be invoked by the defendant in foreign proceedings but not by others whose rights might be affected by the misconduct of foreign authorities. When challenging an interim ruling under Art. 80e IMAC, the complainant must additionally show that he or she is likely to suffer immediate and irreparable prejudice. The most important example of this appears to be seizures of assets, which threaten the survival of companies and economic freedoms. Present case law indicates that courts condone seizures for long periods as they tend to result to serious economic dangers that could cripple individuals and companies before a final ruling is made.22 A rather recent development is a change in the jurisprudence of the federal courts.23 The courts now accept appeals against seizures of bank accounts after several years have elapsed without significant progress in MLA matters, irrespective of the existence of specific irreparable damages. The underlying assumption is that authorities cannot drag out the process forever and deny account holders their statutory appeals against the final ruling in the interim.24 With respect to the presence of foreign officials during MLA measures, appeals will be heard before a final ruling if the risk materialises that secret information will be disclosed or transferred abroad before a final decision on the admissibility of the request can be reached. Procedurally, the onus is on the complainant to satisfy all formal requirements. In particular, a prima facie case of a risk of suffering an immediate and irreparable prejudice must be established. The standards are not easy to meet. Especially, the federal Supreme Court takes a very strict stance concerning formal conditions for admissibility.

9.2 9.2.1

Subject Matter of Judicial Control Reasons for Appeal

Federal law enumerates admissible reasons for appeal in Art. 80i IMAC: a) violation of federal law, including excessive use or abuse of discretion on the part of authorities, and b) inadmissible or manifestly incorrect application of foreign law

of third persons, are equally not entitled to challenge MLA measures in their own name. There is wealth of, sometimes quite obscure, case law on these matters. 22 For instance, inability to perform contractual obligations, risk of bankruptcy, risk of losing business opportunities, loss of regulatory permits. 23 Federal Supreme Court of Switzerland (Bundesgericht), BGer, decision of 22 March 2007 – 1A.335/2005, E. 1; Federal Criminal Court of Switzerland (Bundesstrafgericht), BStGer, decision of 29 April 2019 – RR.2018.250, E. 2.3.3. 24 Compare BStGer, decision of 27 February 2019 – RR.2018.275, E. 6.4.; BStGer, decision of 14 December 2017 – RR.2017.243, E. 4.4.

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in the cases mentioned under Article 65.25 While appearing rather strict at first sight, it covers all potential legal defects that can be encountered in MLA matters. The term “violation of federal law” extends to the specific formal and substantive requirements of extradition, enforcement of prison sentences and gathering of evidence spelt out in separate chapters of the IMAC. All formal and substantive requirements become subject to judicial control because of this term. The IMAC and court practice do not call into question traditional restrictions on judicial review in MLA matters. For instance, the evidential and legal strength of foreign criminal investigations are not tested and basis is not questioned unless the foreign request is contradictory, inconclusive or implausible or raises suspicions for other reasons. Similarly, questions of fact and culpability cannot be contested before the federal criminal court. The well-established exception of alibi evidence in Art. 53 IMAC26 is the only option to derail a foreign request by way of an exculpatory attack against the criminal allegation itself. The exercise of discretion is not entirely justiciable (Art. 393 para. 2 lit. a, b StPO). While its discretion is not unfettered, the IMAC still provides some leeway in favour of cantonal and federal agencies, whose findings ought not to be secondguessed by the courts as long as their administration remains within certain boundaries; namely, they are not guilty of non-compliance with legal requirements and preconditions, disproportionality, arbitrariness and abuse, and wrongful determination of facts (Sect. 9.1.2.2.1).27

9.2.1.1

Decision-Making Competences and Procedures Regarding Granting and Execution of Requests

As for extradition, only one institution, namely the Federal Office of Justice, handles both the granting and the execution of requests. As regards the gathering of evidence, competence to decide both matters is concentrated in the cantonal or federal agency, which has territorial and functional jurisdiction. The BJ may merely cursorily run an initial admissibility test if it receives the request first before they pass it on to the agencies in charge. If they detect flaws, communication with the requesting state will be sought so as to eliminate defects and doubts. If the request reaches the competent law enforcement agency directly or the BJ duly forwards a foreign letter of request, all further decisions on the admissibility of the request and decisions on what measures to carry out (and how) will be taken by that agency. This is a multi-stage process, after an initial prima facie review of 25

Art. 25 para. 4 IMAC contains a similar provision for all rulings in MLA matters. Art. 53 IMAC—Alibi evidence: 1. If the defendant claims to be able to prove that he was not at the scene of the offence when it was committed, the Federal Office shall make the necessary investigations. 2. Extradition shall be denied in clear cases. In other cases, the exculpatory evidence shall be submitted to the requesting state which shall be asked to declare within a short time whether it wishes to continue with its request. 27 Reciprocity is another potential example; see Federal Office of Justice (2009), p. 26. 26

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admissibility, which includes a cursory check whether the facts provided in the request are sufficiently clear for the purposes of Art. 28 IMAC, including a confirmation that a requested (coercive) measure would be available under the law of the requesting state. In the next stage, the cantonal or federal authority will verify whether the request could be carried out under Swiss law and, where necessary, shall issue orders or warrants or require the compulsory measures court (Zwangsmassnahmegericht) to issue warrants for specific coercive measures. After the execution of the measure, its final ruling will conclude the internal MLA proceedings. It will determine whether all formal and substantive preconditions pursuant to the IMAC and applicable treaty law with respect to a given measure have been satisfied. The legal situation is most complex in the case of execution of judgments. Requests are to be submitted to the BJ. The Federal Office will initially review the request to determine its prima facie admissibility. A positive outcome provided the BJ is to consult cantonal agencies, which would be in charge of the enforcement a future sanction, before it will formally accept the request and petition the competent cantonal authority to initiate the execution procedure (Art. 104 IMAC). The next step in the execution proceedings is the exequatur decision taken by a cantonal court (Art. 106 IMAC), which represents the judicial approval of a further execution of a judgment in Switzerland by Swiss enforcement personnel (Art. 106 para. 2 IMAC). Articles 95 and 96 IMAC define the scope of review. The court will not contest the facts of a foreign judgment (Art. 97 IMAC) or second-guess the reasoning of the foreign court. Afterwards, the BJ will inform the requesting state of the decision, its contents and, if any, the conditions attached in order to verify its consent to the continuation of the enforcement process. If the requesting state wishes to move forward, the BJ will give the “green light” to the competent Swiss authorities, which will, in turn, start the formal enforcement process under applicable federal and cantonal legal provisions.

9.2.1.2

Consequences for Judicial Review

Decisions referred to above are subject to the same general system of judicial review introduced in Sect. 9.1.2.2. Procedural remedies usually accessible in internal cases are precluded in MLA matters. Ending a period of legal uncertainty, federal courts have made clear that the MLA system is exclusive.28 These rulings rest on the assumption that IMAC and BGG guarantee ample legal protection. Due to the narrow wording and interpretation of Art. 80h lit. b IMAC (focussing on persons palpably affected in their possessions), many individuals and legal persons whose rights could be affected when gathering evidence are left without recourse, in particular privacy rights of third parties or rights of ultimate beneficial owners (see

28

See further Meyer (2020a), para. 298.

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Sect. 9.1.2.2.3 and footnote 21).29 This is a deplorable situation and hardly reconcilable with Art. 13 ECHR. With respect to speciality, infringements can be raised by individuals (as well as the requested state), although they primarily concern sovereignty rights.30 The substantive scope of protection, however, differs considerably from MLA area to MLA area and between different treaties.

9.2.2

Assessment of Foreign Criminal Proceedings and Decisions: Scopes and Limits

9.2.2.1

Examining the Lawfulness of Foreign Requests

Swiss courts will not review foreign requests for lawfulness under foreign law as such. But Art. 2 IMAC lays down several grounds for refusing cooperation, which are all motivated by defects in the foreign proceedings. For instance, a request for cooperation shall not be granted if there are reasons to believe that foreign proceedings do not meet the procedural requirements of the ECHR and the International Covenant on Civil and Political Rights (ICCPR); are being conducted so as to prosecute or punish a person on account of his or her political opinions, his/her belonging to a certain social group, his/her race, his/her religion or his/her nationality; could result in aggravating the situation of the defendant for any of the reasons mentioned above; or have other serious defects. While simple mistakes in the application of foreign law will not satisfy these conditions, arbitrary interpretations and applications of the law, its abuse for political purposes or the invocation of criminal law, which runs afoul of the ECHR, by foreign authorities, might necessitate a refusal (and a previous implicit review of foreign law). Also, Swiss authorities will verify the general plausibility of the request and its statements and, hence, screen it, at least, for obvious misrepresentations of foreign law (for instance, with regard to the nature of the offence or double criminality).

29

For more case law see Bussmann (2015), Art. 80h IMAC para 45 et seq. See also Meyer (2020a), para. 259; Popp (2001), §12 para. 304 et seq., para. 339 et seq. Documents or information must not be used (Verwendungsverbot) in proceedings for crimes or purposes other than those originally authorised unless subsequent permission is given, Fiolka (2015b), Art. 67 IMAC para 19, 25: not even as starting point for investigations. Interestingly, in extradition matters, speciality protection constitutes a bar of trial (Verfahrenshindernis), BGE 117 IV 222 (223 et seq.); Fiolka (2015a), Art. 39 IMAC para. 33. The subsequent extension of the original granting decision is, therefore, treated as an indispensable precondition to proceed (Prozessvoraussetzung). 30

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F. Meyer

Examining the Lawfulness of Foreign Criminal Proceedings

Foreign rulings or orders underlying or initiating the request are beyond the purview of domestic courts. Of course, foreign requests are reviewed for their compliance with standards contained in multilateral and bilateral treaties and the MLA statutes in domestic law. What states, including Switzerland, do refrain from is scrutinising the legality of criminal proceedings in the requesting state as such. They tend to be deferential as regards statements of fact and law by foreign states in their letters of request. This reluctance is due to the international complications that it might stir up if requested states interfered with foreign proceedings or routinely cast doubt on the proficiency and lawfulness of foreign decisions. Granting its partners a quantum of trust (in varying doses) is an expression of the idea of mutual trust, which is seen as a bare necessity to further and facilitate cooperation. This commitment to effective cooperation is an international policy of Switzerland. The Swiss government and agencies are willing to live with the negative ramifications of this basic policy choice as long as fundamental legal principles (like those in Art. 2 IMAC et seq.) are not compromised. Lack of information about foreign law is not a prime factor but contributes to a general attitude of deference flowing from reasons that are more basic. The same goes for forensic difficulties that agencies encounter when asked to assess legal and factual situations in a foreign country.

9.2.2.3

Legal Remedies Against the Foreign Request

With respect to recital 22 of Directive 2014/41/EU, which deals with obligations to inform but does not envision judicial cross-border knock-on effects, a nuanced response regarding the Swiss situation may be warranted. Legal remedies in Switzerland provide no procedural means to seize a foreign court of the matter at issue automatically. The requesting state might itself wish to act on the matter upon notification, though. While there are, to our knowledge, no explicit legal obligations to keep requesting states informed about the grounds and substance of legal appeals, the general commitment to effective and expedient cooperation might motivate Swiss agencies to keep foreign authorities in the loop. It is only when the controversial reasons for issuing the request might also compromise the admissibility of the request and its execution that the BJ will almost certainly contact the requesting authority with a view to salvaging the request.

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9.2.3

Direct and Indirect Review of Decisions (Not) to Request for Legal Assistance

9.2.3.1

Requesting Legal Assistance and Judicial Review

335

Pursuant to Art. 25 para. 2 IMAC, an appeal against a Swiss request sent to another state is only admissible if that state is requested to assume responsibility for criminal proceedings or the execution of a criminal judgment. In this case, only defendants who are habitually resident in Switzerland are entitled to appeal. Paragraph 2 bis adds that an appeal against a Swiss request for transferring responsibility for the execution of a criminal judgment in connection with the transfer of a convict without his consent (Article 101 para. 2) is also admissible.

9.2.3.2 9.2.3.2.1

Indirect Review in the Trial Phase Illegal Request

The requesting of evidence is a Swiss sovereign act and, therefore, must conform with Swiss law. According to Art. 30 para. 1 and Art. 12 para. 1 cl. 2 IMAC, the legality of the request is to be measured pursuant to the rules of the IMAC and relevant procedural law (StPO). The request for mutual legal assistance is subject to the same procedural laws as a national request for obtaining similar evidence on Swiss soil. This includes the articles on the admissibility of evidence in Art. 140 et seq. StPO.31 As a result, there is no definitive answer to this question. Errors that affect the admissibility of evidence have to be distinguished from those ones not pursuant to these provisions. Mostly admissibility hinges on the source, nature and gravity of illegality. If, for instance, the request violates Art. 140 StPO or certain fundamental human rights, the evidence would be inadmissible. If, however, the

31 Art. 140 StPO—Prohibited methods of taking evidence: 1. The use of coercion, violence, threats, promises, deception and methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence. 2 Such methods remain unlawful even if the person concerned consents to their use. Art. 141 StPO—Admissibility of unlawfully obtained evidence: 1 Evidence obtained in violation of Article 140 is not admissible under any circumstances. The foregoing also applies where this Code declares evidence to be inadmissible. 2 Evidence that criminal justice authorities have obtained by criminal methods or by violating regulations on admissibility is inadmissible unless it is essential that it be admitted in order to secure a conviction for a serious offence. 3 Evidence that has been obtained in violation of administrative regulations is admissible. 4 Where evidence that is inadmissible under paragraph 2 has made it possible to obtain additional evidence, such evidence is not admissible if it would have been impossible to obtain had the previous evidence not been obtained. 5 Records relating to inadmissible evidence shall be removed from the case documents, held in safekeeping until a final judgment has concluded the proceedings, and then destroyed.

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F. Meyer

request only neglects minor formal measures, this would not affect accessibility in any way.32

9.2.3.2.2

Illegal Decision in the Requested State

In this scenario, the source of illegality is a foreign legal act. The decision to grant the request is not a Swiss sovereign act itself even though it was contingent on a Swiss request. Following the relevant lex loci statute, the law of the requested state will apply and guide the determination of (il)legality. The admissibility of transferred evidence in Switzerland, on the other hand, depends on domestic procedural law. Foreign illegal acts are not attributed to the Swiss authorities that initiated the MLA process. What is more, some academics argue that the participants of the domestic criminal proceedings are not negatively affected by the granting decision.33 Hence, mistakes made in the granting process would not affect the admissibility of the evidence.34 This position seems hardly defensible. The granting process is not a bilateral affair but supposed to offer legal protection where fundamental rights are threatened by a transfer of evidence. This can clearly be seen as the granting authority does not only examine whether a request complies with formal provisos but also ought to react whenever a real risk of fundamental rights violations arises. How human rights violations affect domestic proceedings is a more complicated matter. On the one hand, persons concerned are to seek judicial protection in the requested state. On the other hand, such efforts might be futile when illegally transferred evidence cannot be retrieved. Especially in cases of egregious human rights violation, it appears unacceptable to admit their products into evidence in Switzerland.

9.2.3.3

Decision Not to Initiate a Request

Article 1 para. 4 IMAC states in bland words that this Act confers no right to international cooperation in criminal matters. In addition, individuals are not parties to the international MLA regime; only the participating countries are. They, therefore, cannot claim that an individual right was infringed upon by a decision not to initiate a request. The BJ has uploaded a form for petitioning the government to request or approve a transfer of prisoners. The prevailing view is that this practice does not imply the existence of an individual right.

32

Riedi (2018), pp. 89 et seq.; Heimgartner (2015), Art. 30 IMAC para. 1. Because the granting decision only concerns the bilateral relationship between two sovereign states. 34 Riedi (2018), pp. 132–138. 33

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With a view to the development in the European Court of Human Rights’ case law, it should be possible to build a lawsuit against the government on the neglect of procedural duties, at least where core rights of the ECHR (namely Art. 2, Art. 3, Art. 4 ECHR) have presumably been violated. Such infringements could entail a positive obligation to seek mutual legal assistance. But according to the best of our knowledge, this position has not been tested in court yet. To a lesser extent, defendants could arguably claim that fair trial rights (Art. 6 ECHR), in particular the right to an effective defence, have been denied where national trial courts denied motions to take evidence abroad, provided seeking mutual legal assistance would have been likely to offer important new insights. However, there seems to be no precedent for an appeal of this kind.

9.2.4

Challenging Data Processing in the SIS II

According to Art. 59 Council Decision 2007/533/JH, legal remedies are governed by the law of the Member State where a remedy has been brought. For Switzerland, the authoritative statute concerning individual requests for data acquired by Fedpol (Federal Police Office) in the National Schengen Information System (SIS) is the Swiss Ordinance (Verordnung) on the SIS (N-SIS-Verordnung), more specifically Art. 50 V-N-SIS. Inquiries and complaints have to be directed at the data protection officer of Fedpol. The Swiss Department of Data Protection has published forms on their webpage to facilitate formal requests.35 These forms include “fill-in-theblank”-style requests to inform about any personal data held by Fedpol, as well as requests to delete or rectify any false data. Fedpol decisions are subject to appeal. The person concerned is entitled to file a complaint to the Federal Administrative Court (BVerwG) if the inquiry has not been granted or sufficiently answered by Fedpol, (Art. 31 VGG; Verwaltungsgerichtgesetz (VwVG), SR 173.32). The Fedpol decision is an administrative act of a supreme federal authority and as such a generally permissible subject matter (Art. 33 lit. d VVG, Art. 5 Federal Act on Administrative Procedure; VwVG, SR 172.021).36 For the implementation of Directive (EU) 2016/680, Switzerland has revised its data protection law, the IMAC,37 and added the Law on Data Protection regarding the application of the Schengen Acquis (Schengen-Datenschutzgesetz [SDSG], SR 235.3). For legal remedies against any state authority concerning access to personal

35 Available online at: https://www.edoeb.admin.ch/edoeb/de/home/datenschutz/dokumentation/ musterbriefe/-schengen%2D%2Dund-ihre-personendaten.html (23 January 2020). 36 Also, Fedpol decisions of this kind do not fall under the exception clause in Art. 32 VGG, see BVerwG, decision of 21 June 2016, A-1736/2016, E. 1. 37 See Art. 11b IMAC about the right to information on pending mutual assistance proceedings; for the restrictions of this right concerning extraditions requests see Art. 11c IMAC.

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information, Art. 17 SDSG refers to the general right of access to information in Art. 8 of the Swiss Data Protection Code (Bundesgesetz über den Datenschutz [DSG], SR 235.1).38 Article 19 SDSG contains a further right for individuals aggrieved to require state authorities to refrain from using, to revoke or to delete false information they have gathered through the Schengen Information System. Similar regulatory remedies can be found in the Swiss Anti-Money Laundering (AML) legislation. According to Art. 34 AML (Geldwäschereigesetz [GwG], SR 955.0), the Swiss Financial Intelligence Unit (MROS) operates a database containing information collected due to a corresponding reporting obligation of financial intermediaries. Individuals can claim access to their personal information through Art. 8 DSG. The right to require MROS to refrain from using, to revoke or to delete false information is stated in the general clause of Art. 25 DSG. This practice is problematic because of the limited subject matter of the remedy. Only information entered by Swiss authorities can be requested to be deleted or rectified. However, one cannot request information about whether or not his or her information has been passed on to third parties, especially Europol.39

9.2.5

Potential Gaps in Judicial Protection (Extraterritorial Operations and Access to Personal Data)

It has not yet been decided if (mostly Schengen-based) measures such as observation, hot pursuit and access to databases on Swiss territory are to be considered as acts of legal assistance or as means of police cooperation. In the latter case, the IMAC would not be applicable at all.40 Most of the measures do not qualify as administrative ruling (Verfügung) but constitute real acts (Realakte). The IMAC does not provide any possibility for judicial review of this kind of activity. The situation is slightly different for police cooperation measures. While administrative complaints under the VwVG generally require a Verfügung as well, Art. 25a VwVG offers a way out. Persons concerned may force authorities to pass an administrative ruling on the lawfulness of the real act, which could then be appealed. However, it has not been examined yet whether it is possible to challenge cross-border measures based on Art. 25a VwVG. The Realakte does not originate from Swiss sovereign power but constitutes a sovereign foreign act. Whether Art. 25a VwVG would be applicable by analogy is unclear. With respect to investigative measures such as observation, searches, etc., the ultimate responsibility rests with Swiss authorities since measures have to be taken

38 See also the new Art. 11d IMAC about the right to have personal data collected or deleted for persons that are objects of a mutual assistance request. 39 Husi-Stämpfli (2015), p. 196. 40 Frei (2018), para. 109; Fabbri (2013), p. 44 et seq.

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under the supervision of those authorities. Hence, remedies of the IMAC can be brought against them directly. Besides the legal remedies of the IMAC, judicial review can be achieved through the principle of ex officio investigation (Amtsermittlungsgrundsatz) in Art. 139 para. 1 StPO if foreign authorities have acted without Swiss consent. In Switzerland, illegal official acts made on Swiss sovereign territory for another country are punishable under Art. 271 of the Swiss Penal Code (StGB). An obligation to inform and refer the complainant to the competent authority of the requesting state does not exist.

9.3

Scope of Judicial Protection and Applicable Legal Standards

9.3.1

The General Framework for International Cooperation in Criminal Matters

9.3.1.1

Judicial Protection and Applicable Standards upon Foreign Requests

9.3.1.1.1

Legal Standards and Principles

The legal standards governing the cooperation process are a conglomerate of principles and criteria listed in the IMAC, applicable treaty provisions and case law. The IMAC contains a general part, including basic preconditions and legal limits of cooperation,41 as well as special parts with specific rules for each type of cooperation.42 In addition, several general principles inform and guide the application of statutory provisions. The most important one from the perspective of cooperation is the Vertrauensprinzip (principle of mutual trust).

41

Procedural standards, nature of the offence, jurisdiction, ne bis in idem, dual criminality, speciality, reciprocity, good faith. Art. 2 lit. a IMAC requires that foreign proceedings ought to meet the procedural requirements of the ECHR and the ICCPR. Lit. b and lit. c exclude cooperation in case of discriminatory prosecution, punishment and treatment of defendants on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality. Lit. d contains a so called ordre public-clause which in fact prohibits cooperation in any case of serious human rights violations or risks thereof. Art. 3 IMAC excludes cooperation for offences of a predominantly political or (with the exception of tax fraud) fiscal nature or offences that appear to be directed against the national security or military defence of the requesting state. Art. 5 IMAC bundles several situations in which the right to prosecute has lapsed or become extinct, namely ne bis in idem, statute of limitations, impossibility of enforcement. Art. 9 IMAC adds a protection of privacy by reference to legal privileges recognised in criminal procedure. 42 Non-refoulement, risk of death penalty (Art. 37 para. 3 IMAC); application of foreign law, presence of foreign authorities, rules facilitating rehabilitation.

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Any violation of these rules and principles is a legitimate ground for appeal. However, not all are exposed to the same level of scrutiny. Nature and underlying concepts of international cooperation influence the scope and depth of judicial protection. The most important one from the perspective of cooperation is the Vertrauensprinzip (principle of mutual trust). In practice, its impact is most visible with respect to the scope and rigour of review. Mostly, Swiss authorities assume that information given is correct. Statements of law and fact in a letter of request will generally not be second-guessed as long as it is not riddled with gaps and inconsistencies that deprive it of its function to define the subject matter of the request and to provide information necessary to verify the general and special requirements (especially the nature of the offence and dual criminality). If the competent authority detects manifest deficits, the standard response, however, would not be the rejection of the request but further communication via the BJ seeking additional information with a view to ensuring cooperation. From the perspective of persons concerned, it is not enough to deny the allegations in order to attack the request on formal grounds. To convince the BJ to set aside a request, the persons concerned either need to point to discrepancies of the above kind or show bad faith on the part of the requesting state.43 The idea of trust between cooperation partners plays an equally crucial role as far as grounds for refusal are concerned, which relate to standards and deficits in foreign proceedings. As long as Switzerland does rule out cooperation with a particular state (in particular matters or generally), competent authorities routinely follow the approach adopted by the European Court of Human Rights, which requires complainants to prove a real risk of violations. The burden of proof applied is adjusted according to treaty relations, human rights record and prior experience in each case. Another mediating principle is proportionality. Article 4 IMAC bars cooperation in minor cases. Unlike for extradition and enforcement of foreign judgments, the IMAC does not specify the notion of “minor” for MLA requests. Courts and administrative practice have brought some clarity. For the purposes of the overall comparative project, it is important to note that Swiss authorities tread carefully in this area and do not impose their vision on the requesting state. They understand the fact of there being a request as evidence in itself for the perceived weight of a case. This deference minimises the likelihood of successful appeals on this count. Stricter standards apply to the choice and execution of the MLA measure. The gathering of evidence is subject to complex proportionality checks. Most important for the present question is the relevancy link. Whether information is relevant for a foreign investigation cannot be evaluated by Swiss authorities without access to the case file and a confidential briefing on the prosecution or investigation strategy. Hence, authorities will take a very deferential approach. The test is stricter with

Chances of success are slim; compare BStGer, decision of 15 July 2016 – RR.2016.42, E. 5; BStGer, decision of 22 July 2016 – RR.2016.45, E. 7.2; see exceptionally BStGer, decision of 17 July 2018 – RR.2017.338, E. 3.9. 43

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respect to preventing fishing expeditions and overall proportionality. One might sense a more recent trend towards greater generosity in terms of the amount of financial information made available in response to foreign requests (in light of a more receptive understanding of prosecutorial needs). International immunities impose additional barriers to cooperation. Recognising the practical needs arising from Switzerland’s role as host state to many international organisations and other protected facilities and persons, it honours the standards of general international law and would not approve a request that bears a risk of compromising this position.

9.3.1.1.2

Limitations According to the Law of the Requesting State

In terms of the limitation and justification of cooperation, Swiss authorities will resort to Swiss law. Certain requirements necessitate consideration of the lege lata of the requesting state, though. For instance, the classic requirement of reciprocity may force national authorities to review foreign law in order to ensure that support by the requesting state could be offered in a hypothetical Swiss case. In addition, Swiss agencies will not carry out measures that would not be lawful under foreign law. In practice, this limitation is rather theoretical since requesting states are supposed to confirm the permissibility of a requested matter, which is accepted as valid by the executing agencies unless sufficient evidence points to the contrary.

9.3.1.1.3

Limitations According to the Law of the Requested State

Swiss authorities may not grant or execute a measure not permissible under Swiss law. Precondition and warrant requirements, as set out in the Code of Criminal Procedure, do apply. MLA measures have to pass through the same authorisation process as purely domestic measures. MLA proceedings and domestic proceedings part company at the level of judicial protection. Criminal procedure’s complaint mechanisms are blocked by the IMAC. Most importantly, the Siegelung (sealing of files and other seized items) to protect personal and professional secrets after a seizure cannot be appealed until after the final ruling has been announced.

9.3.1.1.4

Limitations According to International Law (ECHR, International Ordre Public, Fundamental Rights)

The competent authority applies international law through different channels and in multiple dimensions. Article 2 IMAC explicitly and implicitly refers to the ECHR,

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the ICCPR and the international ordre public.44 Foreign proceedings will be held to these standards. In addition, bilateral and multilateral treaty law applies directly due to Switzerland’s monistic system and further demarcates limits and discretion for cooperation. On the other hand, Swiss authorities are equally bound by these rights and principles when assessing and executing foreign requests.

9.3.1.1.5

Limitations According to EU Law

EU as such is not applicable with the exception of those norms that are part of the Schengen acquis. By way of the Schengen accession agreement, Switzerland had to implement the entire Schengen acquis (e.g. Art. 54 Convention Implementing the Schengen Agreement [CISA]) and continues to implement all Schengen-relevant developments of EU law into Swiss law (including the recent data protection directive).

9.3.1.2

9.3.1.2.1

Judicial Protection and Applicable Standards When Requesting Cooperation Limitations According to the Law of the Requesting State

Obviously, Switzerland must not ask for the execution of any measure that would not be legally available in domestic proceedings; also see above Sect. 9.3.1.1.2.

9.3.1.2.2

Limitations According to the Law of the Requested State

According to Art. 25 para 4 IMAC, “[a]n appeal may also be filed against the inadmissible or obviously improper application of foreign law”. The application of foreign law, however, is an issue of little practical importance. In practice, the application of foreign law, therefore, usually does not go beyond different forms to take an oath or confirm the veracity of the testimony and other formal requirements to ensure admissibility in the requesting state. The most important scenario of the application of foreign law regarding witness statements and taking of evidence is regulated in Art. 65 IMAC, which sets out various limits and preconditions:

44

Lit. a orders that foreign proceedings ought to meet the procedural requirements of the ECHR and the ICCPR. Lit. b and lit. c address discriminatory prosecution, punishment and treatment of defendants on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality. Lit. d contains a general clause which is often cited as ordre public-caveat but goes further than that. It is interpreted and applied as a placeholder for all other human rights standards not specifically addressed in Art. 2; namely those that flow from the ECHR and the ICCPR.

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1 At the express request of the foreign state: a. the statements of witnesses or experts shall be affirmed in the form prescribed by the laws of the requesting state, even if the applicable Swiss law does not provide such a form; b. forms necessary to obtain other evidence that is admissible in court may be taken into consideration. 2 Forms for obtaining and affirming evidence according to paragraph 1 must be compatible with Swiss law, and no essential prejudice may result therefrom to the persons involved. 3 A person may also refuse to testify provided the law of the requesting state so provides or if the fact of testifying may cause criminal or disciplinary sanctions to be imposed under the laws of that state or of the state where the examined person lives. However, this provision concerns requests addressed at Switzerland and does not deal with Swiss requests. It also seems that violations of foreign law in the requested state cannot be appealed before Swiss courts directly since it would not involve the wrongful “application of foreign law” by Swiss authorities. It might be that under certain circumstances, unlawful actions of foreign authorities could be challenged on the basis of Art. 2 IMAC.

9.3.1.2.3

Limitations According to International Law (ECHR, International Ordre Public, Fundamental Rights)

Yes; see above Sect. 9.3.1.1.4.

9.3.1.2.4

Limitations According to EU Law

EU law is inapplicable apart from Schengen law, for instance Art. 54 CISA. All rights and safeguards adopted or transposed as elements of the Schengen acquis may be raised in court if they could be personally applicable to the situation of the complainant.

9.3.2

The Framework of Cooperation with the EU

Switzerland has looked into options to seek more effective cooperation with its EU partners. It has reached agreements to join Europol and Eurojust with liaison officers and prosecutors. Given its third country status, it is not represented in the college and has no access to the agencies’ most valuable databases. The establishment of the European Public Prosecutor will trigger similar activities seeking to institutionalise

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cooperation and exchange of information. Access to mutual recognition instruments remains precluded as it would entail deep structural and politically unfeasible changes. The BJ would lose its central role. Moreover, Switzerland would need to find a way to bind itself to Charter of Fundamental Rights (CFR) standards, comply with European Court of Justice decisions and find ways to offer equivalent judicial protection.

9.4 9.4.1

Pleading Requirements Ex Officio Investigations and the Burden of Proof

Federal and cantonal authorities must verify ex officio whether all formal and substantive requirements have been satisfied. Depending on established legal relationships and earlier experiences, different degrees of trust will be placed in documents and statements from the requesting state. If said authorities do not harbour doubts about grounds for refusal themselves, the onus is on the person concerned. Any person potentially entitled to judicial protection under Art. 25 para. 1 and Art. 80d IMAC must show a real probability that cooperation will be in breach of Art. 2 IMAC et seq. and sufficiently corroborate his or her claim. The exact requirements differ between alleged formal (see above) and substantive deficits and further distinguish between particular grounds for refusal. With a view to human rights violations, a general risk or prevalence of torture or other forms of mistreatment does not suffice to render a request impermissible. The requested persons must show an individual and tangible risk of serious probability. This standard is equivalent to the real-risk jurisprudence of the European Court of Human Rights. Allegations must therefore not be vague but concrete and substantiated with reliable evidence. This burden will often prove to be too high.

9.4.2

Differences According to Subject Matter and Procedural Role

Arguments and evidential standards might differ between grounds for refusal, which in turn might be rooted in international law, the law of the requesting state or the law of the requested state. The consequences of the concept of (mutual) trust and the references to the case and standards of the European Court of Human Rights, being the most important examples, have been explained above.

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Differences Corresponding to Types of Cooperation (Extradition, Enforcement of Prison Sentences, Gathering of Evidence)

The differences are not of general nature. Rather, certain problems that have spawned rich case law and led to more detailed instructions may only arise in the context of one type of cooperation. For instance, the jurisprudence of prison conditions, mistreatment and fair trial standards or the principle of proportionality and the ban on fishing expeditions have all been dealt with repeatedly in court.

9.5

Guarantees Given by the Requesting State (Zusicherung)

9.5.1

Legal Nature, Requirements and Legal Effects

The legal status of assurances is not entirely clear in Swiss law and doctrine. The IMAC mentions assurances in Art. 37 IMAC but does not further qualify them. These international assurances could be deemed unilateral declarations of a requesting state (einseitige Willenserklärung), which (provided they meet certain qualitative standards) have a binding effect on this state resulting from the principle of estoppel. A further manifestation of guarantees can be found in Art. 80p IMAC. According to its first paragraph, the executing and the appellate authority (in Switzerland), as well as the Federal Office of Justice, may make the granting of mutual assistance wholly or partly subject to certain conditions. The acceptance thereof, which is required to salvage cooperation, is in its substance an assurance given by the requesting state.45 Since this assurance corresponds to conditions set by the requesting state (technically the assurance is implicit in the official acceptance of the condition), it assumes a quasi-treaty character. It is binding according to the principle of pacta sunt servanda.46

9.5.1.1

Formal and Substantive Requirements

Extradition shall be denied if the request is based on a verdict issued in the absence of the defendant and if the minimum rights of the defence to which a defendant is recognised to be entitled were not respected in the proceedings preceding the verdict; this rule does not apply if the requesting state gives sufficient assurances to guarantee

45 46

See BGE 123 II 511, E. 4a. Art. 26 Vienna Convention on the law of treaties.

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the defendant the right to new court proceedings where the rights of the defence are respected (Art. 37 para. 2 IMAC). Article 37 para. 3 IMAC adds further scenarios, namely risk of death penalty or torture. In the same vein, the risk of potential violations of Art. 2 IMAC not already covered by Art. 37 paras. 2 und 3 IMAC may be eliminated or, at least, significantly reduced by offering substantial assurances that applicable human rights standards will be complied with. Article 80p, which also applies to extraditions,47 empowers the executing and the appellate authority, as well as the Federal Office, to make the granting of mutual assistance wholly or partly subject to certain conditions. This provision, as a matter of principle, is applicable to any remediable obstacle to international cooperation originating in the requesting state. Neither Art. 37 nor Art. 80p IMAC defines formal and substantive minimum requirements, which any assurance must surpass. In lieu of specific national sources, European Court of Human Rights precedent sets the authoritative benchmarks. In the landmark decision Othman,48 the Strasbourg court has compiled a detailed list of validity criteria, e.g. whether the terms of the assurances have been disclosed to the court; whether the assurances are specific or are general and vague; who has given the assurances and whether that person or institution can bind the receiving state;49 if the assurances have been issued by the central government of the receiving state; whether local authorities can be expected to abide by them; whether the assurances concern treatment that is legal or illegal in the receiving state; whether they have been given by a contracting state; the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances; whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; and whether there is an effective system of protection against torture in the receiving state, including whether it is willing to cooperate with international monitoring mechanisms. Switzerland follows this pattern and distinguishes between states parties to the ECHR and ICCPR and third countries. With respect to such countries, assurances or conditions are generally deemed unnecessary. If reports or experience indicates abstract risks, assurances may be resorted to. Once again, building on trust, Swiss authorities may assume that conditions set have been accepted and will be obeyed.50 That said, Switzerland refrains from insisting on a formal declaration of acceptance in some cases. Some court decisions emphasise that Swiss authorities must demand formal assurances in delicate and risk-prone situations.51 It is very difficult to

47

BGE 134 IV 146, E. 6.10. European Court of Human Rights (ECtHR), judgment of 17 January 2012, Application no. 8139/ 09 (Othman [Abu Qatada] v. The United Kingdom), para. 183 et seq. 49 This means that the assurance must be binding not only for the state as an international legal subject but also for the domestic institutions that pose the risk or that are in charge of containing and remedying that risk. 50 BStGer, decision of 23 November 2011 – RR.2011.260, E. 3.3. 51 BGE 134 IV 156, E. 6.3. 48

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ascertain where to draw the line. The same goes for the level of detail and reliability required to assuage Swiss concerns. Much will depend on the circumstances of each particular case. As a rule, substance and corroboration of assurance must correlate with the prior record of the requesting state.52 If a risk of human rights violations persists after individualised assessment, cooperation must not be granted. With respect to third countries, the level of trust is considerably lower. Depending on their human rights record, it might not be accepted at all where risks appear to be systematic or endemic.

9.5.1.2

Obligation to Accept the Guarantee

Switzerland will usually accept (written)53 guarantees if they comply with the general standards stipulated in Art. 37, Art. 80p and Art. 2 et seq. IMAC. Since Switzerland is not obliged to cooperate in the first place (Art. 1 para. 4 IMAC), absent a specific international treaty obligation, a unilateral assurance could not trigger any corresponding legal obligations for Swiss authorities, however. Nevertheless, the maxim of most favourable treatment of incoming requests (Grundsatz der Rechtshilfefreundlichkeit) will generally prompt Swiss authorities to accept the guarantee and follow through on the request. An e contrario conclusion drawn from Art. 37 para. 3 IMAC supports this assumption. It indicates that extradition will be approved once the requesting state provides assurances that the requested person will not be sentenced to death after extradition and will not have to endure treatment that causes physical suffering. Technically, however, Switzerland will not be obliged legally to cooperate under both considerations. A positive obligation to accept the guarantee (not vis-à-vis the requested state but with respect to victims) could result from Switzerland’s collective responsibility to protect fundamental rights enshrined in the ECHR. Recent case law of the European Court of Human Rights indicates that such a duty might arise in homicide investigations.

9.5.1.3

Monitoring Compliance After Granting a Request

Legal protection generally seizes with the ultimate act in the requested state becoming final. Beyond this point, domestic authorities are no longer directly involved and hence bear no further procedural burdens. Based on treaty-based and time-tested trust, Switzerland assumes that partner states will provide sufficient judicial protection against any alleged infringements within their jurisdiction. The situation is markedly different where the lawfulness of the granting decision rests on particular conditions to be lived up to in the future. Swiss authorities may attach such condition to their granting decisions (Art. 80p IMAC). Often the

52 53

BGE 134 IV 156, E. 6.8. Zimmermann (2019), para. 314.

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requesting state is asked to ensure that compliance is checked by Swiss authorities.54 The requesting state must show reliably that it will accept such checks55 in light of its prior record that has led to demanding an assurance in the first place. The basis of the obligation to insist on effective monitoring powers is statutory and anchored in the duty to protect the human rights that are at stake in the particular case. Despite these options, it must not be overlooked that Switzerland loses effective control over an individual, item or evidence upon surrender to a foreign country. There is no direct influence on whether the conditions will be adhered to. It is neither possible to enforce them unilaterally without the involvement of foreign courts. The only effective means of enforcement is the threat of abandoning cooperation for the future.

9.5.2

Legal Remedies Against the Violation of a Guarantee in the Requesting State

It does not seem that Swiss law provides for a direct remedy against broken guarantees. However, violations of this nature commonly imply a human rights violation. Under the Swiss Constitution, Swiss authorities can be held accountable for human rights infringements (Art. 35 para. 1 BV), which includes ECHR rights and cantonal constitutional liberties. Every violation is judicially enforceable.56 The legal process is contingent on the cause and causer of the violation. Guarantees could be broken as regards fair trial standards, procedural safeguards or medical treatment. Often, assurances involve prison conditions. Depending on the content of the guarantee, different legal regimes apply. The administration of prisons, for instance, is governed by cantonal law (within a broad legal framework set by federal law). Cantonal laws on the enforcement of prison sentences exhibit considerable differences. Appeals and admissibility requirements, hence, may change from canton to canton as well. Irrespective of such variations and uncertainties, cantonal law will usually offer a complaint mechanism in any form, which may then be appealed before cantonal (administrative) courts and ultimately be brought before the Federal Supreme Court.57 As regards pre-trial detention or detention pending trial, prisoners have resort to the regular appeals of the Code of Criminal Procedure.

54

See for instance guarantees concerning unimpeded access to and communication with the defender or the right of Swiss diplomats to visit detainees (without surveillance) and attend court hearings, BGE 134 IV 156, E. 6.14, 6.3; BGE 133 IV, 76 E. 4.5; BGE 122 II 373, E. 2d; see also Schaffner (2013), p. 177. 55 Schaffner and Kühler (2015), Art. 80p IMAC para. 42. 56 Kiener et al. (2018), § 8 para. 1, based on Art. 29a BV, Art. 13 and 6 para 1 ECHR. 57 Ibid. at § 8 para. 7; art. 82 et seq. and 113 et seq. BGG; see also for instance BGer, decision of 21 March 2016 – 6B_456/2015, E. 2.4.5 (prison conditions).

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In case of fair trial or civil liberty violations by police or public prosecutor pre- or during trial, complaints under Art. 393 StPO would be admissible to challenge any arguable infringement of protected legal interests. Under strict conditions, the Federal Supreme Court will hear complaints against this decision (Art. 78 et seq. BGG)

9.5.3

Legal Remedies Against the Violation of a Guarantee in the Requested State

Article 80p IMAC is a Janus-headed provision. It facilitates cooperation but also allows Swiss authorities to turn conditions into an instrument for the enforcement of human rights and procedural safeguards (see supra). The notion of “condition” does not stop at compliance with the said requirements. It is interpreted as to include monitoring and reporting duties. Imposing such obligations on the requesting state through this backdoor is common practice. If conditions are disregarded, Swiss authorities will demand compliance through diplomatic channels based on the principle of pacta sunt servanda. They may also request restitutio in integrum when violations have already caused detrimental effects. As a last resort, a state complaint may be brought before the European Court of Human Rights, which, of course, has never happened so far. Should the requesting state ultimately continue to disrespect its international obligations, Switzerland would put on hold any further cooperation in criminal matters.58

9.5.3.1

Complaints Against the Granting Authority

The IMAC provides two complaint mechanisms. Article 80p para. 4 entitles any person who is personally and directly affected by a mutual assistance measure or extradition to appeal the decision of the Federal Office that the assurance of the requesting state satisfies the conditions set before the Appeal Chamber of the Federal Criminal Court (within 10 days of its notice being given in writing). The decision of the Appeals Chamber is final. This special remedy is of little practical relevance (for its limited scope).59 Since the person concerned has a right to appeal the final ruling of the Federal Office, this general complaint is a more effective and comprehensive tool. It includes the neuralgic question of whether the assurance process was satisfactory.

58

BGer, decision of 20 July 2004, 1a_149/2004, E. 4.3; also Garré (2015), Art. 37 IMAC para. 13, who assumes that the current practice is effective. 59 That is, whether the BJ correctly determined that the assurance was sufficient or not; Schaffner and Kühler (2015), Art. 80p IMAC para. 67.

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If the final ruling was upheld despite relevant flaws that materialise in the breach of the assurance, persons concerned might continue their legal battle with an individual complaint to the European Court of Human Rights. In addition, the person concerned may claim damages (see below). With respect to causes of action against the requesting state, the IMAC or administrative law, in general, does not know a specific remedy that works as a lever to force Swiss authorities to take action against a foreign country. It might be conceivable to resort to general administrative law complaints based on an arguable claim that Switzerland is under a duty to protect (the human right at risk) because of its involvement in the cooperation process. However, such risks are quite likely not actionable when Switzerland has complied with the Othman standards and its own domestic case law. Persons concerned (and their kin), in this case, can merely hope for diplomatic support and informal interventions from Swiss authorities.

9.5.3.2

Claiming Damages

The IMAC regulates compensation in Art. 15. It refers to Articles 429 and 431 StPO, which are to be applied in an analogous way to proceedings that have been conducted against the defendant under the IMAC in Switzerland or at the request of a Swiss authority abroad. Article 431 StPO deals with compulsory measures that have been applied to the accused unlawfully. One may argue that actions that contravene an assurance fall into this category. However, the ratio legis seems to encompass only those measures that have been executed by or the request of Swiss authorities. Violations of an assurance by foreign authorities are not within the scope of application of Art. 15 IMAC unless Swiss authorities (partly) bear responsibility for such violations, for instance because they ignored warning signs or did not carry out control checks. For the same reasons, state liability under Art. 146 BV will generally not be incurred.

9.6

Effectiveness of Judicial Review

9.6.1

General Requirements (Access to Information and Suspensory Effect of the Remedy)

9.6.1.1

Informing the Person Concerned in the Requested State

Article 52 IMAC contains a detailed regulation of the right to be heard in extradition cases. Paragraph 1 cl. 1 reads: “[t]he request and the documents supporting it shall be submitted to the defendant and to legal adviser”. The cantonal authorities shall advise him or her of the right to appeal, to appoint a legal adviser or to have a

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legal adviser officially appointed. They are also obliged to ask if and for what reasons he/she raises objections to the arrest warrant or his/her extradition. His/her legal adviser may assist in this hearing. By virtue of Art. 80m IMAC, the executing authority and the appellate authority shall give notice of their rulings in MLA cases to the entitled person living in Switzerland or the entitled person living abroad and with an address for service of documents in Switzerland.60 Hence, other persons, despite being affected by MLA measures, will not be informed if they are domiciled abroad or have no authorised address for service in Switzerland. The effects of this restriction are only partly alleviated by Art. 80n IMAC, which allows holders of documents to inform their clients of the existence of the request and of all the facts relating thereto. This provision has foreign bank account holders or investors in mind whose banks and wealth managers will be contractually obliged to inform their clients of state actions taken against their property or data. Their right to do so may be put on hold by the competent authority if necessary to ensure effective enforcement. With Art. 80m IMAC, public authorities are virtually outsourcing the right to be heard without retaining a residual responsibility for its proper application. The bottom line is that the notification system is at least partly perfunctory and worthy of reform. It might violate Art. 8 ECHR.61

9.6.1.2

Informing the Person Concerned in the Requesting State

Swiss law does neither require nor rely on the requesting state to inform the person concerned. To align mutual legal assistance with modern data protection law, a new Art. 11b IMAC has been introduced recently. Paragraph 1 states that where mutual assistance proceedings are pending, the person who is the object of a request for international cooperation in criminal matters shall be allowed access to the personal data related to them and further information about the purpose of and legal basis for the data processing; the period that the personal data will be retained or, if this is not possible, the criteria for determining this period; the recipients or the categories of recipients; the available information on the origin of the personal data; and the information that they require to be able to assert their rights. The competent Swiss authority may nonetheless refuse, limit or defer the disclosure of information when it is necessary to protect overriding interests of third parties or overriding public interests, in particular relating to the internal or external security of Switzerland, or in the interest

60 Because of the focus on the final rulings, persons whose privacy rights might be impinged during the execution phase will often not be informed about the measure at the time when it would be most pertinent to protect their rights. 61 E.g. ECtHR, judgment of 07 July 2015, Application no. 28005/12 (M.N. and Others v. San Marino).

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of the foreign proceedings, for the protection of an important legal interest if the requesting state so requests, because of the nature or urgency of the measures to be taken or to prevent detrimental effects for an enquiry, an investigation, court proceedings or international cooperation proceedings. According to Art. 11c IMAC, any person may request information at the Federal Office on whether Switzerland has received a request from a foreign state to make an arrest for the purpose of extradition. This right to information, however, was conceived of not as a due process right but as an unavoidable concession to data protection. Paragraph 2 makes this motive explicit. When a person requests information on whether the Federal Office has received a request to make an arrest for the purpose of extradition, the Federal Office shall not inform the person accordingly but shall notify him or her that no personal data have been unlawfully processed and that the person can request the Federal Data Protection and Information Commissioner to enquire as to whether any data have been lawfully processed. A request to the commissioner will then prompt an enquiry from a data protection point of view. Identification of an error would not lead to a disclosure of information but would result in an order against the Federal Office to rectify the error. In derogation from these procedures, para. 7 authorises the Federal Office to provide the person concerned with the requested information if the requesting state gives its advance consent.

9.6.1.3

Access to the File

The right to be heard and the right of access to the case files is a fundamental procedural right recognised in both Swiss administrative law and international cooperation. Article 52 IMAC guarantees access to the extradition file before the BJ issues its final ruling. It is supposed to be granted after the initial arrest. In MLA affairs, all persons who are entitled to judicial protection have a right to participate in the proceedings and to access the files provided that access is necessary to safeguard their interests (Art. 80b para. 1). Paragraph 1 IMAC, therefore, does not allow for unlimited disclosure. The case file may be screened and sorted based on the relevance of its contents for the effective protection of the rights of these persons. Moreover, like many other participation rights, both rights may be limited for the reasons stipulated in para. 2 lit. a–e, namely in the interest of the foreign proceedings, for the protection of an important legal interest, if the requesting state so requests, because of the nature or urgency of the measures to be taken, for the protection of important private interests and in the interest of Swiss proceedings. Even under these circumstances, para. 3 prohibits an outright denial of access or participation unless it is imperative for reasons of confidentiality. If access has been restricted (partially), these documents may not be relied upon to the disadvantage of the person concerned, unless he or she has been informed about their basic contents (Art. 28 VwVG).

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Suspensive Effect of Legal Remedies in the National System

The main provisions on the suspensive effect of legal remedies can be found in Art. 21 para. 4 IMAC and Art. 80l IMAC. Pursuant to Art. 21 para. 4 IMAC, remedies filed against a decision based on the IMAC Act shall not have a suspensive effect. Clause 2 lit. a explicitly exempts decisions granting extradition from this rule. Article 80l para. 1 IMAC sets forth (partly repeating Art. 21 para. 4 cl. 2 lit. b IMAC) that “[o]nly appeals against the final ruling or any other ruling authorising the transmission of classified information or the handing over of objects or assets to a foreign state shall have suspensive effect”. Other interim rulings preceding a final ruling may, therefore, be executed immediately. Exceptionally, the Appeals Chamber of the Federal Criminal Court may suspend interim ruling in the cases circumscribed in Art. 80e IMAC if reasonable grounds to fear an immediate and irreparable prejudice are presented to the court.

9.6.1.5

Suspensive Effect of Legal Remedies in the Foreign Legal System

Challenging the foreign request in the foreign legal system has no suspensory effect on cooperation. These remedies concern separate proceedings with potentially incongruent subject matters and therefore have no direct link with Swiss proceedings. However, outcome and evidence from foreign proceedings may have repercussions on the admissibility of cooperation.

9.6.1.6

Compensation for Inadmissible Requests

The IMAC contains a specific article on compensation. Article 15 IMAC renders Arts. 429 and 431 of the Federal Code of Criminal Procedure applicable in proceedings that have been conducted against the defendant under the IMAC in Switzerland or at the behest of Swiss authorities abroad. Compensation may be denied if a defendant has provoked the investigation or the detention through his or her fault or has, without reason, obstructed or delayed the proceedings. On the other hand, Art. 15 IMAC does not exclude compensation where the main responsibility rests with the foreign state. Paragraph 5 merely demands that the “likelihood of the injured party being able to obtain damages in the foreign state must be taken into account when the decision is made to reduce or refuse the compensation”.

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9.6.2

Additional Procedural Safeguards (Dual Representation by Defence Counsel, Translation and Interpretation)

9.6.2.1

Finding a Lawyer in the Foreign State

Swiss law does not provide help in finding a lawyer in the foreign state.

9.6.2.2

Translation of Legal Remedies

Swiss law does not provide support for translating a legal remedy.

9.6.2.3

Any Other Procedural Support?

With respect to other means of support, see above, Sect. 9.6.1.1. Exercising the right to be heard assisted by his or her legal adviser remains the most important safeguard (Art. 52 IMAC).

9.6.3

Ineffectiveness of Ex Post Facto Judicial Review?

9.6.3.1

Consequences in the Requesting State After the Transfer Was Found Illegal by a Foreign Court in the Requested State

See above with respect to the admissibility of illegally transferred evidence (Sect. 9.2.3.2.1). To our knowledge, there is no provision that would require a return of evidence or the surrender of prisoners. For extradition cases, the illegality of the granting process generally does not affect or contaminate criminal proceedings in Switzerland.62 The situation might be different if Swiss authorities are (partly, jointly) responsible for the illegality.63 In the case of ECHR infringements, they would (most likely) be obliged to guarantee a restitutio in integrum (and, hence, to transfer or destroy the evidence and release the prisoner).

62

BGE 106 lb 405, E. 8; BGE 90 IV 121, E. D.1.; Riedi (2018), p. 138. BGE 133 I 234_25, E. 26 points out obiter dictum that the maxime ex iniuria ius non oritur is of highest significance in every criminal proceeding. Ziegler and Bergmann (2008), p. 50 (53 f.) interpret this vague statement as an indication for a procedural bar of trial (Haft- und Prozesshindernis). Swiss courts may not investigate and convict lawfully when the trial originated in a serious violation of international law.

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Consequences in the Requesting State After Execution Was Found Illegal by Domestic Courts

As will be further explained below, the structure of the granting process and the system of remedies try to prevent such situations. They may only occur where information was handed over before a ruling became final or a decision is later on found illegal by the European Court of Human Rights. The IMAC does not specify how to respond to a finding of illegality. No provision imposes a duty to reverse the effects of cooperation. The ECHR (Art. 46) and general administrative law, on the other hand, demand a restitutio in integrum where possible (impossibilium nulla est obligatio). Swiss courts and authorities appear to share this understanding. In recent cases, which concerned a so-called entraide sauvage (transfer of information under circumvention of the regular granting process), the Federal Criminal Court held that federal law obliges the responsible Swiss authorities to contact their foreign counterparts in order to retrieve the information (provided the transfer would be found impermissible in the ex post granting process to be carried out by the Swiss authorities as a direct consequence of the circumvention). What the judgment left unaddressed was the lack of means to enforce a retrieval order. Switzerland would have no power to force a sovereign country to return prisoners or evidence apart from international comity and good faith (and, of course, the threat to decline future cooperation). However, determined interventions may yield surprising results. In a case, concerning a former Tamil tiger-seeking asylum in Switzerland, Swiss authorities were able to reverse his surrender to Sri Lanka after asylum was granted. The return process was, nevertheless, not one governed by law but a diplomatic effort.

9.6.3.3

Repatriating Individuals and Evidence After Illegal Transfers

The entire system of cooperation is built on the idea that individuals and information must not be surrendered until a final ruling is issued. The special part on MLA requests contains several provisions that intend to ensure that evidence stays in Switzerland in order to prevent irreparable prejudice until this moment. Information that foreign agents gleaned from the case file or picked up while present during interrogations and searches must not be used in court. Handwritten notes must be handed over to the official case file. Foreign agents are to sign affidavits that they will honour these rules before they are allowed to participate in any measure. As an exception, Art. 18b IMAC empowers the executing federal or cantonal authority to transmit electronic communication traffic data to the requesting state before the conclusion of the mutual assistance proceedings. A similar practice with

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respect to other types of information obtained through secret measures has been declared illegal by the Federal Court for lack of a sufficient legal basis.64 Swiss lawmakers are presently in the process of creating a solid statutory basis for this practice, which, as a corollary, would create an imminent need to address the issue of guarantees and repatriating evidence. The use of conditions as a way to remove obstacles in the cooperation process is an established practice in Switzerland and regulated in Art. 80p IMAC. Its first paragraph explains that the executing and the appellate authority, as well as the Federal Office, may make the granting of mutual assistance wholly or partly subject to certain conditions. These conditions are communicated to the requesting state through the Federal Office with an appropriate deadline for its response. If the condition is refused or the deadline not respected, mutual assistance may not be granted on the points subject to conditions. There is no obligation to use this mechanism, though. Article 80p IMAC also does not define particular fields of application. Interestingly, Art. 18b para. 2 IMAC contains the well-known proviso that the data may not be used in evidence before the ruling on the granting and the extent of mutual assistance is legally binding. The Achilles heel of this mechanism is enforcement. In the past, Switzerland has demanded explicit diplomatic assurance that the location of imprisonment will continuously be communicated to Swiss authorities and that the foreign state will guarantee unimpeded access to and communication with a defender.65 In other cases, assurances extended to a right of Swiss diplomats to visit detainees (without surveillance) and attend court hearings.66 Much will, therefore, depend once more on the level of trust that can be placed in the requesting state, which will to a significant extent depend on the human rights record, prior experience and established relationships.

References Bussmann A (2015) Art. 80h IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel Fabbri A (2013) Geheime Beweiserhebung in der Schweiz im Rahmen der internationalen Strafrechtskooperation: 39–66. In: Breitenmoser S, Gless S, Lagodny O (eds) Rechtsschutz bei Schengen und Dublin. Dike, Zurich Federal Office of Justice (2009) International Mutual Assistance in Criminal Matters, Guidelines, 9th edn. 2009 (Case law as of May 2010), Bern, available online at: https://www.rhf.admin.ch/ dam/data/rhf/strafrecht/wegleitungen/wegleitung-strafsachen-e.pdf (23 January 2020)

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However, the newly proposed Art. 80dbis IMAC commands in para. 4 lit. c that the requesting agency must oblige itself to remove evidence and information from its case file if the request is denied ultimately. 65 BGE 134 IV 156. 66 BGE 129 II 274 et seq.

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Fiolka G (2015a) Art. 39 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel Fiolka G (2015b) Art. 67 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel Frei L (2018) Grundlagen und Grenzen der Observation. Schulthess, Zurich Garré R (2015) Art. 37 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel Heimgartner S (2015) Art. 30 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel Husi-Stämpfli S (2015) Was lange währt, wird endlich gut? Das Schengener Informationssystem der zweiten Generation: 185–206. In: Breitenmoser S, Gless S, Lagodny O (eds) Schengen und Dublin in der Praxis. Dike and Nomos, Zurich/St. Gallen Kiener R, Kälin W, Wyttenbach J (2018) Grundrechte, 3rd edn. Stämpfli, Bern Meyer F (2020a) Besonderheiten Schweiz, 1. Hauptteil Grundlagen. In: Ambos K, König S, Rackow P (eds) Rechtshilferecht in Strafsachen, 2nd edn. Nomos, Baden-Baden Meyer F (2020b) Besonderheiten Schweiz, 4. Hauptteil Sonstige Rechtshilfe. In: Ambos K, König S, Rackow P (eds) Rechtshilferecht in Strafsachen, 2nd edn. Nomos, Baden-Baden Popp P (2001) Grundzüge der Internationalen Rechtshilfe in Strafsachen. Helbing & Lichtenhahn, Basel Riedi C (2018) Auslandsbeweise und ihre Verwertung im schweizerischen Strafverfahren. Schulthess, Zurich Schaffner D (2013) Das Individuum im internationalen Rechtshilferecht in Strafsachen. Helbing Lichtenhahn, Basel Schaffner D, Kühler A (2015) Art. 80p IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar. Helbing Lichtenhahn, Basel Ziegler A R, Bergmann C (2008) forumpoenale 1:50–54 Zimmermann R (2019) La coopération judiciaire internationale en matière pénale, 5th edn. Stämpfli, Bern

Frank Meyer Professor of Criminal and Criminal Procedure Law, incuding International Criminal Law, University of Zurich, Switzerland.

Chapter 10

Comparative Analysis Martin Böse, Maria Bröcker, and Anne Schneider

10.1

Overview1

10.1.1 Judicial Protection in the Criminal Justice System As a matter of principle, effective judicial protection forms part of each criminal justice system of the countries examined. In several countries, the right to an effective legal remedy before a tribunal is a constitutional right (Art. 19 para. 4 of the German Constitution, Art. 24 of the Italian Constitution, Art. 20 of the Portuguese Constitution, Art. 29a of the Swiss Constitution).2 In other countries, the right is derived from Art. 13 of the European Convention on Human Rights (ECHR), which can be directly invoked by the person whose rights have been affected by a state measure (Austria, France, the Netherlands).3 Furthermore, the right to judicial protection can be derived from general constitutional principles such as protection of fundamental rights and separation of

1 In the following, references to other country reports are made by section. For further orientation, references may include a footnote (abbreviated by fn) meaning that the referenced information can be found in the vicinity of the footnote (shortly before or after) or in the footnote itself. 2 Germany, Sect. 4.1.1; Italy, Sect. 5.1.1; Portugal, Sect. 8.1.1; Switzerland, Sect. 9.1.1. 3 Austria, Sect. 2.1.1; France, Sect. 3.1.1; the Netherlands, Sect. 6.1.1.

M. Böse · M. Bröcker (*) University of Bonn, Bonn, Germany A. Schneider University of Mannheim, Mannheim, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_10

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powers (France, the Netherlands, Norway) and rule of law and access to justice (Germany, Switzerland).4 The Portuguese Constitution even provides for a right to appeal.5 The right to judicial protection guarantees a right to an effective legal remedy against any act or omission of a public authority (potentially) interfering with individual rights.6 The scope of this right is not limited to purely domestic proceedings but also extends to transnational criminal proceedings, i.e. in the framework of international cooperation in criminal matters.7 In France and Germany, statutory provisions excluding extradition and surrender from the scope of the right to a legal remedy have been declared void by the constitutional courts.8 Moreover, according to the Portuguese Constitution, extradition must not be granted without prior authorisation by courts.9 In most countries, judicial protection in transnational criminal proceedings falls within the competence of criminal courts, and insofar as the law does not provide for specific provisions, the general rules on legal remedies in criminal proceedings apply accordingly.10 In the Netherlands, civil courts have a residual function in protecting fundamental rights.11 In Switzerland, international cooperation in criminal matters is regarded as an administrative procedure so that the corresponding legal guarantees apply.12

10.1.2 Institutional and Procedural Framework of Transnational Criminal Proceedings The legal framework of international cooperation in criminal matters differs from state to state: whereas some countries have adopted statutory laws on international cooperation in criminal matters (Austria, Germany, Norway, Portugal, Switzerland),13 others have incorporated the corresponding rules into their Codes of Crim-

4

Germany, Sect. 4.1.1; France, Sect. 3.1.1; the Netherlands, Sect. 6.1.1; Norway, Sect. 7.1.1; Switzerland, Sect. 9.1.1. 5 Portugal, Sect. 8.1.1. 6 Germany, Sect. 4.1.1 fn. 7; France, Sect. 3.1.1; the Netherlands, Sect. 6.1.1; see also Norway, Sect. 7.1.1. 7 Austria, Sect. 2.1.1; Switzerland, Sect. 9.1.1; Germany, Sect. 4.1.1 fn. 10; Italy, Sect. 5.1.1; the Netherlands, Sect. 6.1.1; Norway, Sect. 7.1.1; Portugal, Sect. 8.1.1. 8 Germany, Sect. 4.1.2.1 fn. 29; France, Sect. 3.1.1. 9 Portugal, Sect. 8.1.1. 10 Austria, Sect. 2.1.2. 11 The Netherlands, Sect. 6.1.1. 12 Switzerland, Sect. 9.1.1. 13 Austria, Sect. 2.1.2; Germany, Sect. Sect. 4.1.2; Norway, Sect. 7.1.2; Portugal, Sect. 8.1.1; Switzerland, Sect. 9.1.2.1.

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inal Procedure (France, Italy);14 the Dutch system combines both approaches.15 Likewise, the rules on cooperation within the EU are regulated either in subsections of the general statutory laws (Germany, France, Italy)16 or by a specific and selfstanding legal framework (Austria, the Netherlands, Portugal).17 In Norway, the Agreement to the European arrest warrant has been implemented in a self-standing statutory act, too.18 In the Netherlands, cooperation requires an international agreement (treaty requirement) as a basis for a minimum level of trust in the foreign state’s criminal justice system.19 As the rules on international cooperation focus on the perspective of the requested state, the overview of the institutional framework shall deal with incoming requests first.

10.1.2.1

Incoming Requests

In all countries, the proceedings triggered by a foreign request for legal assistance involve both the executive and the judiciary. On behalf of the executive, it is usually the ministry of justice that takes the final decision on whether or not to grant an extradition request of a foreign state.20 In some countries, the ministry of foreign affairs participates in the decision-making process as well, and in France, the final decision on extradition is to be taken by the prime minister.21 The competence of the government shall ensure that the requested state’s sovereign interests of the requested state are taken into due consideration,22 but the executive enjoys ample discretion in the exercise of its competence and may consider public policy reasons as well as individual rights and interests (ordre public, human rights, rule of law).23 The margin of discretion, however, is limited by the requested state’s obligations under international law.24 In the Netherlands, the involvement of the ministry is

14

France, Sect. 3.1.2.1; Italy, Sect. 5.1.2.1; see also the corresponding reform proposal in Norway, Sect. 7.1.2. 15 The Netherlands, Sects. 6.1.2.1.1 (extradition and enforcement of sentences) and 6.1.2.1.5 (MLA). 16 Germany, Sect. 4.1.2; France, Sect. 3.1.2.1; Italy, Sect. 5.1.2.2. 17 Austria, Sect. 2.1.2; the Netherlands, Sects. 6.1.2.3.1, 6.1.2.3.2; Portugal, Sect. 8.2.2.1. 18 Norway, Sect. 7.1.2. 19 The Netherlands, Sect. 6.1.2.1.1; see also Italy, Sect. 5.1.2.1.3 (with regard to enforcement of prison sentences); Norway, Sect. 7.1.2.2.1. 20 Austria, Sect. 2.1.2 fn. 16; Germany, Sect. 4.1.2.1; Italy, Sect. 5.1.2.1 (in detail: Sects. 5.1.2.1.1– 5.1.2.1.3); the Netherlands, Sects. 6.1.2.1, 6.1.2.1.1 fn. 26; Norway, Sect. 7.1.2.2.3; see also the ‘veto power’ of the ministry in Portugal (Portugal, Sect. 8.1.2). 21 France, Sect. 3.1.2.2.1 fn. 5; see also Germany, Sect. 4.1.2.1 (consent of the foreign office). 22 France, Sect. 3.1.2.2.1 fn. 5; Portugal, Sect. 8.1.2. 23 Italy, Sects. 5.1.2.1.1–5.1.2.1.3; the Netherlands, Sect. 6.1.2.1.1 fn. 26; Norway, Sect. 7.2.1 fn. 121; Portugal, Sect. 8.1.2; Switzerland, Sect. 9.1.2.2.1; see also Norway, Sect. 7.1.2.2.3 fn. 52 (with regard to political offences). 24 Italy, Sect. 5.1.2.1.2; Switzerland, Sect. 9.1.2.2.1.

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particularly relevant for the protection of fundamental rights because the assessment of extradition courts is limited to human rights violations that have already occurred but do not extend to the risk of (future) human rights violations (except for a flagrant denial of justice); as a consequence, it is up to the ministry to assess whether the person sought for extradition would be exposed to such risk and, therefore, extradition must not be granted.25 In addition, the ministry shall ensure that the request complies with formal requirements; this task is usually carried out by a specialised department within the ministry or by a central authority.26 In Switzerland, it is upon this department (the Federal Bureau of Justice) to decide upon a foreign request for extradition.27 In Germany, the exercise of the federal ministry’s competence may be delegated to the Federal Office of Justice and the ministries of the states (Länder).28 The public prosecution service usually executes the foreign requests (if the measure is not to be taken by a court). In most countries, the exercise of the competence to grant a request for mutual legal assistance (MLA) is delegated to the public prosecution service so that a decision of the ministry (or central authority) is not required.29 In Switzerland, the public prosecution service is also the competent authority as far as the enforcement of foreign sentences is concerned.30 Even though the ministry and the public prosecution service have to ensure that the decision to grant the request complies with domestic and international law, it is primarily the court’s responsibility to provide judicial protection to the rights of the individual concerned. In this regard, the court may afford judicial protection ex ante or ex post. In most countries, the decision of the executive to grant extradition requires prior authorisation by a court; i.e., the competent authority must not grant extradition unless a court has ruled extradition admissible (Austria, Germany, France, Italy, the Netherlands, Norway).31 A similar mechanism applies to the enforcement of foreign sentences where the execution is subject to the requirement that a court has ordered continued enforcement or adopted an exequatur decision (Germany, France, the Netherlands, Switzerland); in Norway, judicial protection ex ante is only required in the latter case (conversion of the foreign sentence).32 Judicial protection ex ante is

25

The Netherlands, Sect. 6.1.2.1.1 fn. 26. Germany, Sect. 4.1.2.1 fn. 15 ff.; France, Sect. 3.1.2.2; the Netherlands, Sect. 6.1.2.1.1; Norway, Sects. 7.1.2.2.3, 7.2.2; Switzerland, Sect. 9.1.2.1. 27 Switzerland, Sect. 9.1.2.1. 28 Germany, Sect. 4.1.2.1 fn. 15 ff. 29 Austria, Sect. 2.1.2 fn. 16; Germany, Sect. 4.1.2.1; Italy, Sect. 5.1.2.1; the Netherlands, Sect. 6.1. 2.1.5; Norway, Sects. 7.1.2.1, 7.1.2.2.2; Portugal, Sect. 8.1.2; Switzerland, Sect. 9.1.2.1 fn. 8. 30 Switzerland, Sect. 9.1.2.1 fn. 9. 31 Austria, Sect. 2.1.2 fn. 16; Germany, Sect. 4.1.2; France, Sect. 3.1.2.2.3; Italy, Sect. 5.1.2.1.1; the Netherlands, Sect. 6.1.2.1.1; Norway, Sect. 7.1.2.2.3. 32 Germany, Sect. 4.1.2; France, Sect. 3.1.2.2.4; the Netherlands, Sect. 6.1.2.1.4; Norway, Sect. 7.1. 2.2.4; Switzerland, Sect. 9.1.2.2. 26

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also provided where it is upon the competent court to grant extradition (Portugal) or to decide upon the enforcement of a foreign judgment (Austria, Italy).33 In contrast, judicial protection ex post is the general rule in the Swiss system: the final decision of the Federal Bureau of Justice to grant extradition (or mutual legal assistance) may be challenged by the person concerned, and the legality of the decision will be reviewed by the Federal Criminal Court.34 In some countries, judicial protection ex ante is supplemented by judicial protection ex post since a civil or administrative court reviews the ministry’s granting decision.35 This review, however, must not extend to facts and circumstances that have already been addressed by the court affording judicial protection ex ante.36 For similar reasons, the granting decision of the competent authority in Germany is subject to judicial review in exceptional cases only.37 In as far as the executive enjoys a margin of discretion, its exercise is only subject to limited judicial review (e.g. for arbitrariness).38 Instead of judicial review, the Swiss system provides for a political mechanism (supervision by the federal government).39 As far as mutual legal assistance is concerned, judicial protection cum grano salis follows the rules on judicial protection in domestic criminal proceedings. Where the investigative measure requires prior court authorisation, this requirement will apply accordingly if the measure shall be taken upon a request of a foreign state (judicial protection ex ante).40 On the other hand, the legal remedy against the investigative measure in domestic criminal proceedings will be available in mutual legal assistance proceedings, too (judicial protection ex post).41 The reference to legal remedies in domestic criminal proceedings, however, has left some lacunae in judicial protection. As far as the legality of investigative measures ordered by the public prosecutor’s office shall be reviewed by the trial court, the reference will be devoid of purpose because the trial court will be a court of the requesting state (France).42 The same applies where investigative measures (except for seizure) in domestic proceedings cannot be challenged before the courts at all (Italy).43

33

Austria, Sect. 2.1.2 fn. 16; Italy, Sect. 5.1.2.1.3; Portugal, Sect. 8.1.2; see also the Netherlands, Sect. 6.1.2.1.4 (positive exequatur-decision of the court obliges the minister to grant the request for enforcement). 34 Switzerland, Sect. 9.1.2.2. 35 France, Sect. 3.1.2.3.1.1; the Netherlands, Sect. 6.1.2.1.1 fn. 35; Norway, Sect. 7.1.2.4. 36 The Netherlands, Sect. 6.1.2.1.1 fn. 36. 37 Germany, Sect. 4.1.2.1 fn. 34. 38 Germany, Sect. 4.1.2.1 fn. 20, Italy, Sect. 5.1.2.1.3 fn. 38; the Netherlands, Sect. 6.1.2.1.1 fn. 36; Portugal, Sect. 8.1.2. fn. 35. 39 Switzerland, Sect. 9.1.2.2.1. 40 Germany, Sect. 4.1.2.1 fn. 43; France, Sect. Sect. 3.1.2.3.1.1; the Netherlands, Sect. 6.1.2.1.5; Norway, Sect. 7.1.2.2.2. 41 Austria, Sect. 2.1.2; Germany, Sect. 4.1.2.1 fn. 45; Portugal, Sect. 8.1.2. 42 France, Sect. 3.1.2.3.3.1 fn. 32. 43 Italy, Sect. 5.1.2.1.2 fn. 21.

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In contrast, the Netherlands has established a mechanism to ensure judicial protection against the transfer of seized objects or collected data to the requesting state. According to this mechanism, the person must be given the opportunity to file a complaint against the decision to transfer the objects or data or, if the secrecy of the investigation does not allow for a notification of the person concerned, a court must review the legality of the transfer ex officio.44 Thereby, the mechanism comes close to the system of judicial protection ex post as provided by Swiss law, which, however, falls short of the level of judicial protection in the framework of domestic criminal proceedings.45 Since the mutual recognition instruments under EU law have established a framework of direct cooperation between judicial authorities, the role of the executive is somewhat limited. European arrest warrants are executed by courts, without the Ministry of Justice being involved.46 The same mechanism has been established by Norway, which has been affiliated to the cooperation framework based upon the European arrest warrant.47 The final granting decision of the public prosecution service, however, cannot be challenged before a court.48 Likewise, European investigation orders are executed by courts and public prosecutors.49 As far as the transnational enforcement of sentences is concerned, EU law does not require a judicial authority stricto sensu so that the Netherlands could maintain the traditional framework providing for the ministry’s competence to decide upon the execution of a foreign sentence.50 As far as the final decision on the execution of a European arrest warrant is taken by a court (instead of the executive), there is no need to provide for a judicial review of the granting decision of the ministry. Furthermore, the ‘judicialisation’ of crossborder cooperation has reduced the margin of discretion of the competent authority since there is a general obligation to cooperate and an exhaustive list of grounds for refusal. Accordingly, the discretion is limited to the decision on whether or not to

44

The Netherlands, Sect. 6.1.2.1.5 fn. 78; see also Norway, Sect. 7.1.2.2.2, with regard to the supervision of surveillance measures by an independent committee. 45 Switzerland, Sects. 9.1.2.2, 9.1.2.2.3; see also the gap in judicial protection where officials of the requesting state attend the execution of the measure and, thereby, directly receive the required information (Switzerland, Sect. 9.1.2.2.3 fn. 24); see also Norway, Sect. 7.1.2.2.2 (judicial review limited to the international dimension). 46 Austria, Sect. 2.1.2 fn. 17; Germany, Sect. 4.1.2.1 fn. 18; France, Sect. 3.1.2.2.3; Italy, Sect. 5.1. 2.2; the Netherlands, Sect. 6.1.2.3.1; Portugal, Sect. 8.1.2; in Germany, the public prosecution service takes the final decision, but prior court authorisation is required (Germany, Sect. 4.1.2.1 fn. 31). 47 Norway, Sect. 7.1.2.2.3 fn. 50; see, in contrast, Sect. 7.1.2.2.3 fn. 63 (with regard to the European investigation order). 48 Norway, Sect. 7.1.2.4. 49 Austria, Sect. Sect. 2.1.2 fn. 17; Germany, Sect. 4.1.2.1 fn. 18; France, Sect. 3.1.2.2.2 fn. 9; Italy, Sect. 5.1.2.2.2; the Netherlands, Sect. 6.1.2.3.3; Portugal, Sect. 8.1.2. 50 The Netherlands, Sect. Sect. 6.1.2.3.2.

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invoke an optional ground for refusal.51 The discretion is even more limited where the Member States have implemented optional as mandatory grounds for refusal (Austria).52 By strengthening the role of the judiciary, the protection of fundamental rights is streamlined and facilitated. On the other hand, the deficiencies in judicial protection in MLA cases are not addressed but even aggravated due to legal uncertainty as to whether and to what extent the case law on the availability of legal remedies in the traditional MLA framework were applicable to the European investigation order (France).53 In the Netherlands, the execution of a European investigation order and the transfer of seized objects are exempted from judicial review ex officio, where the person concerned cannot be notified of the investigative measure because such a mechanism was considered to violate the principle of mutual trust.54 As a consequence, the person concerned is afforded less protection than in the traditional MLA framework.

10.1.2.2

Outgoing Requests

As far as outgoing requests are concerned, the institutional framework is less regulated but based upon the same organisational concept that involves both the executive (ministry, central authority) and the judiciary (courts, public prosecution service).55 Due to their functional link to domestic criminal proceedings, outgoing requests of the ministry are usually initiated by the public prosecutor’s office or a criminal court.56 Specific rules on judicial protection against outgoing requests are rare. In Germany and Italy, a request for the enforcement of custodial sentence imposed by a domestic court is subject to court authorisation (judicial protection ex ante).57 In the Netherlands and Switzerland, the convicted person may challenge such decision before the courts (judicial protection ex post).58 In contrast, an outgoing request for extradition is not subject to judicial review as it is considered to merely affect the relations between the requesting and the requested states rather than the rights of the person sought for extradition.59 In France, however, the surrendered person may 51 Germany, Sect. 4.1.2.1 fn. 31 f.; see in this direction also Portugal, Sect. 8.1.2 (exercise of discretion subject full judicial review in appeal proceedings). 52 Austria, Sect. 2.1.2 fn. 18. 53 France, Sect. 3.1.2.3.3.1 fn. 35 (legal remedies against measures ordered by the investigative judge). 54 The Netherlands, Sect. 6.1.2.3.3. 55 Austria, Sect. 2.1.2 fn. 18; Germany, Sect. 4.1.2.2; the Netherlands, Sect. 6.1.2.2; Norway, Sect. 7.1.2.3; Portugal, Sect. 8.1.2; see also Italy, Sect. 5.1.2.2. 56 Austria, Sect. 2.1.2. fn. 18; Italy, Sect. 5.1.2.2.1; Norway, Sect. 7.1.2.3.1; Portugal, Sect. 8.1.2. 57 Germany, Sect. 4.1.2.2 fn. 61; Italy, Sect. 5.1.2.1.3 fn. 36. 58 The Netherlands, Sect. 6.1.2.2 fn. 89; Switzerland, Sect. 9.1.2.2.2. 59 Germany, Sect. 4.1.2.2 fn. 58; France, Sect. 3.1.2.3.1.2 fn. 28; Italy, Sect. 5.1.2.2.1 fn. 45; see also Norway, Sect. 7.2.3, referring to the discretion of the public prosecution service in a criminal investigation.

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challenge the decision of the public prosecution service to initiate an extradition request of the ministry.60 In the absence of specific provisions, judicial protection may be based upon the corresponding rules on domestic criminal proceedings: if an investigative measure requires court authorisation (e.g. a search warrant), a request for such measure must meet the same requirement.61 For similar reasons, a request for extradition may require a domestic arrest warrant to be issued by a court.62 The decision authorising the coercive measure (arrest warrant, search warrant etc.) may be challenged according to the general rules on domestic criminal proceedings.63 Even if there is no legal remedy against the European investigation order, the defendant or a third party may challenge its legality after the object has been transferred to the issuing Member State in order to have the object returned to the executing Member State.64 These remedies, however, do not provide protection against the hardships arising from the transnational dimension of the measure.65 As far as the competence to issue European arrest warrants lies exclusively with courts,66 the procedural rules on outgoing request will at least provide judicial protection ex ante.

10.1.3 Right to Appeal In general, the decision of the court to adopt, authorise or confirm the granting decision can be appealed.67 To some extent, this does not apply to court decisions on the execution of mutual recognition instruments; the underlying rationale of this exception is to streamline and accelerate the procedure.68 A legal remedy (or an appeal) can be lodged by the person concerned, his/her counsel and the public prosecution service.69 The right to a legal remedy is subject to the condition that

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France, Sect. 3.1.2.3.1.2. Austria, Sect. 2.1.2; Norway, Sect. 7.1.2.3.1; see also Germany, Sect. 4.2.1. 62 Norway, Sect. 7.1.2.3.2; see also Portugal, Sect. 8.1.2; in the Netherlands, however, an extradition request may be based upon an arrest order issued by a public prosecutor (the Netherlands, Sect. 6.1. 2.2). 63 Germany, Sect. 4.1.2.2 fn. 58; France, Sect. 3.1.2.3.3.1 fn. 31. 64 Italy, Sect. 5.1.2.2.2 fn. 53. 65 See in this direction Germany, Sect. 4.1.2.2 fn. 58. 66 Germany, Sect. 4.1.2.2 fn. 54; Portugal, Sect. 8.1.2. 67 Austria, Sect. 2.1.2; France, Sect. 3.1.2.3; Italy, Sects. 5.1.2.1.1. fn. 18, 5.1.2.2.1 fn. 42; the Netherlands, Sects. 6.1.1 and 6.1.2.1.4 fn. 63; Norway, Sect. 7.1.2.4; Portugal, Sect. 8.1.2 fn. 50; Switzerland, Sect. 9.1.2.2; see also Germany, Sect. 4.1.2.3 fn. 76 (complaint to the constitutional court). 68 The Netherlands, Sect. 6.1.2.4 (surrender, enforcement). 69 Austria, Sect. 2.1.2; Germany, Sect. 4.1.2.3; France, Sects. 3.1.2.3.1–3.1.2.3.3; Italy, Sect. 5.1.2. 1.1. fn. 18; the Netherlands, Sect. 6.1.2.4; Norway, Sect. Sect. 7.1.2.4; Portugal, Sect. 8.1.2 fn. 50; Switzerland, Sect. 9.1.2.2.3. 61

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the measure interferes with his/her rights; this requirement may also be met by third parties (e.g. with regard to search and seizure). On the other hand, the defendant is not per se entitled to challenge any decision.70 As far as the gathering of evidence is concerned, a decision (not) to initiate a request may be challenged by the defendant or the victim (Portugal).71 In France, the requesting state may challenge the government’s decision to refuse extradition; this extraordinary remedy notwithstanding, the requesting state is not a party to the proceedings.72

10.2

Subject Matter of Judicial Control

10.2.1 International and Internal Dimensions of the Granting Decision In general, the procedural framework of international cooperation in criminal matters is composed of judicial and political phases, and the international and internal dimensions of the granting decision are addressed in both phases.73 The focus of the executive (ministry of justice) lies on the international dimension and is mainly related to state interests (sovereignty, foreign policy) but may also extend to human rights issues. In contrast, the judiciary examines both the internal dimension (measures necessary to execute the request, such as arrest and detention) and the international dimension (traditional grounds for refusal, such as the ordre public clause). In this two-phased procedure, judicial protection of individual rights is usually concentrated in the judicial phase of cooperation proceedings (court authorisation— ex ante—or court decision—ex post), whereas the decision of the executive, due to its focus on grounds of public policy and foreign relations, is subject to limited review only.74 As far as the decision of the executive is subject to court review, a potential violation of fundamental rights may be raised before extradition courts (judicial phase) and administrative courts (remedy against the decision of the executive). In the Netherlands, the protective function of the ministry and the subsidiary competence of civil courts have given rise to complex case law on the

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Switzerland, Sect. 9.1.2.2.3. Portugal, Sect. 8.1.2 fn. 50. 72 France, Sect. 3.1.2.3.1.1 fn. 24; see also Portugal, Sect. 8.1.2 fn. 24. 73 Austria, Sect. 2.2.1; Germany, Sect. 4.2.1; France, Sect. 3.2.1; Italy, Sect. 5.2.1; the Netherlands, Sect. 6.2.1.1; Norway, Sect. 7.2.1; Portugal, Sect. 8.2.1.1; see also Switzerland, Sect. 9.2.1.1. 74 Germany, Sect. 4.1.2.1 fn. 20, 26 ff.; France, Sect. 3.2.1; Portugal, Sect. 8.2.1.1 fn. 59; Switzerland, Sect. 9.2; see also the Netherlands, Sect. 6.2.1.1. 71

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division of tasks and competences between extradition courts and civil courts.75 This problem does not occur in Switzerland, where the final decision of the Federal Bureau of Justice is subject to review ex post in a single procedural framework.76 In contrast to the traditional procedural framework, the new cooperation instruments under EU law have abolished the political phase, and it is upon the judiciary to provide effective judicial protection by courts, either acting as executing authority (European arrest warrant) or reviewing the decision of the public prosecution service (European investigation order).77

10.2.2 Assessment of Foreign Criminal Proceedings and Decisions: Scope and Limits As a matter of principle, a foreign request for extradition, enforcement of judgments or any other form of mutual legal assistance is not subject to judicial review by the requested state. The requested state will only check if the request meets basic formal requirements and will not examine substantial issues unless provided otherwise.78 According to the rules on international cooperation in criminal matters, the requested state usually verifies—based on the transmitted information—that the conduct related to the request is punishable and not time-barred under the law of the requesting state; in Portugal, the competent authority also assesses whether the crime falls within the jurisdiction of the requesting state.79 As a rule, the requested state does not evaluate the evidence;80 however, in some countries, the person sought for extradition may challenge the request by a plea for innocence.81 Moreover, the request and the related criminal proceedings in the requesting state must not violate fundamental rights and the right to a fair trial in particular; thus, with regard to the national and international ordre public, the competent authorities of the requested state examine and evaluate decisions and judgments taken by the

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The Netherlands, Sect. 6.2.1.1. Switzerland, Sect. 9.2.1.1. 77 Austria, Sect. 2.2.1; Germany, Sect. 4.1.2.1 fn. 30 ff., 50; France, Sect. 3.2.1; Italy, Sect. 5.2.1; Portugal, Sect. 8.2.2.1; see also Norway, Sect. 7.2.1. 78 Austria, Sect. 2.2.2; Germany, Sect. 4.2.3.1; France, Sect. 3.2.2; Italy, Sect. 5.2.2.1; the Netherlands, Sect. 6.2.1.2; Norway, Sect. 7.2.2; Portugal, Sect. 8.2.1.2; Switzerland, Sect. 9.2.2.1. 79 Germany, Sect. 4.2.3.1; France, Sect. 3.2.2.1 fn. 40; Italy, Sect. 5.2.2.1; Portugal, Sect. 8.2.1.2; Switzerland, Sect. 9.2.2.1. 80 Germany, Sect. 4.2.3.1 fn. 102; France, Sect. 3.2.2.1; the Netherlands, Sect. 6.2.1.2; Portugal, Sect. 8.2.1.2; Switzerland, Sect. 9.2.1 fn. 26. 81 The Netherlands, Sect. 6.2.1.2; Norway, Sect. 7.2.2 fn. 143; Switzerland, Sect. 9.2.1 fn. 26; see also Germany, Sect. 4.2.3.1 fn. 103 (evaluation of facts and evidence in exceptional cases); Italy, Sect. 5.2.2.1 (serious elements of suspicion required for extradition that is not based upon an international treaty). 76

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requesting state.82 Cross-border cooperation within the European Union is subject to the aforementioned principles; insofar as mutual recognition instruments have abolished or restricted traditional obstacles to international cooperation (e.g. the double criminality requirement), the assessment of the executing Member State will be limited accordingly.83 There are several reasons for the limitation of the scope of the requested state’s assessment of the request of and the criminal proceedings in the requesting state. First and foremost, it derives from the reluctance to interfere with the sovereign power of another state exercising its ius puniendi, and this interference may give rise to international complications that might affect the functioning of international cooperation in criminal matters.84 Furthermore, the requested state usually lacks the expertise and resources to examine whether the request (and the related criminal proceedings) comply with the law of the requesting state.85 On the other hand, effective international cooperation requires a minimum of mutual trust that can be derived from an international treaty with the requesting state.86 This rationale is particularly relevant for the EU cooperation instruments that are based upon the principle of mutual recognition (European arrest warrant, European investigation order).87 Thus, the review of the request and the judicial decision on which the request is based is first and foremost a matter for the requesting state. This finding is derived not only from the sovereignty of that state but also from an appropriate and efficient distribution of tasks and responsibilities between the requesting and the requested states.88 On the other hand, splitting up the responsibility for judicial protection between the requesting and the requested states creates significant impediments to the effective exercise of the right to judicial review as the person concerned will have to lodge a legal remedy with a court in another state whose criminal justice system (and language) he or she might not be familiar with. These problems could be addressed by a mechanism that allows the person concerned to lodge a legal remedy against the foreign request with a court of the requested state and, thereby, triggers judicial review in the requesting state to which the remedy is transmitted. A similar

82

Germany, Sect. 4.2.3.1 fn. 115 f.; Italy, Sect. 5.2.2.1; the Netherlands, Sect. 6.2.1.2; Portugal, Sect. 8.2.1.2; Switzerland, Sect. 9.2.2.1. 83 Germany, Sect. 4.2.3.1 fn. 113; France, Sect. 3.2.2.1; Portugal, Sect. 8.2.2.2; see, however, the requirement of serious suspicion for the execution of a European arrest warrant in Italy (Italy, Sect. 5.2.2.3). 84 Austria, Sect. 2.2.2 fn. 28; Germany, Sect. 4.2.3.2; Italy, Sect. 5.2.2.1; France, Sect. 3.2.2; Portugal, Sect. 8.2.1.2; Switzerland, Sect. 9.2.2.2; see also Norway, Sect. 7.2.2 fn. 157. 85 Austria, Sect. 2.2.2; Germany, Sect. 4.2.3.2; Switzerland, Sect. 9.2.2.2. 86 The Netherlands, Sect. 6.2.1.2; Norway, Sect. 7.2.2 fn. 153. 87 Austria, Sect. 2.2.2; Germany, Sect. 4.2.3.2; Portugal, Sect. 8.2.1.2; see also Norway, Sect. 7.2.2 fn. 154. 88 Germany, Sect. 4.2.3.2; see also Norway, Sect. 7.2.2 fn. 145.

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mechanism has been established for crime victims applying for compensation in another Member State.89 In transnational criminal proceedings, however, such a mechanism does not exist.90 Nevertheless, the person concerned should be informed of the available remedies, and the requesting and the requested states should notify each other of the remedies lodged with their courts.91

10.2.3 Direct and Indirect Review of the Decision (Not) to Request for Legal Assistance Even though it has been established that it is upon the requesting state to ensure effective judicial review of outgoing requests, most criminal justice systems do not provide for legal remedies against outgoing requests.92 Apparently, there seems to be no need for judicial review because the request merely concerns the external relations to the requested state and does not directly affect individual rights until the requested state will take action.93 Instead, the person concerned may challenge the judicial decision on which the request is based (e.g. the domestic arrest warrant);94 however, judicial protection against investigative measures may be limited (supra Sect. 10.1.2.1).95 In France, the detained person may challenge an extradition request after his or her surrender,96 and in several countries outgoing requests for the enforcement of a custodial sentence (and the transfer of the prisoner) requires court authorisation (judicial protection ex ante).97 In the Netherlands, a need for a judicial review of outgoing requests for mutual legal assistance may arise from the risk of human rights violations in criminal proceedings in the requested state triggered by information transmitted with the request.98 As far as cooperation within the EU is concerned, the decision to issue a European arrest warrant or a European investigation order may be challenged before a court.99 The aforementioned remedies illustrate that the general rule (no remedies against outgoing requests) is riddled

89

Germany, Sect. 4.2.5 fn. 144 ff. Austria, Sect. 2.2.2 fn. 28; Germany, Sect. 4.2.3.3; Italy, Sect. 5.2.2.1; the Netherlands, Sect. 6.2. 1.2; Norway, Sect. 7.2.2 fn. 155; Switzerland, Sect. 9.2.2.3. 91 Portugal, Sect. 8.2.2.2; Switzerland, Sect. 9.2.2.3; see also Art. 14 para. 3, 5 Directive 2014/41/ EU of 3 April 2014 regarding the European Investigation Order in criminal matters, O.J. L 130/1. 92 Austria, Sect. 2.2.3; Germany, Sect. 4.2.3.4.1; Italy, Sect. 5.2.3; Portugal, Sect. 8.2.1.3; Switzerland, Sect. 9.2.3.1. 93 Austria, Sect. 2.2.3; Germany, Sect. 4.2.3.4.1. 94 Austria, Sect. 2.2.3; Germany, Sect. 4.2.3.4.1; France, Sect. 3.2.3.1. 95 France, Sect. 3.2.2.3 (review limited to measures in the framework of a judicial investigation). 96 France, Sect. 3.1.2.3.1.2. 97 Germany, Sect. 4.2.3.4.1; Italy, Sect. 5.2.3. 98 The Netherlands, Sect. 6.2.1.3.1. 99 Germany, Sect. 4.2.3.4.1; the Netherlands, Sect. 6.2.1.3.1; Portugal, Sect. 8.2.2.3. 90

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by several exceptions. Nevertheless, these exceptions have not yet overcome the deficiencies in judicial protection against outgoing requests. As far as the gathering of evidence is concerned, an incidental review of the request in the trial phase might close these gaps in judicial protection where the trial court may exclude evidence that has been derived from an illegal request or an illegal granting decision. Notwithstanding the different approaches to the exclusion of evidence from the trial, it is widely accepted that the exclusionary rules apply irrespective of whether the evidence was collected in the framework of a domestic investigation or whether it was obtained from a foreign state that had been requested for mutual legal assistance. According to these rules, evidence that has resulted from an illegal request (e.g. because the formal or substantive requirements for the investigative measure were not met) may be excluded from the trial.100 On the other hand, there is no common position on whether an illegal decision or measure taken by the requested state will render the evidence inadmissible in the requesting state. In some countries, a (potential) violation of foreign law does not affect the admissibility of evidence;101 in other criminal justice systems, the exclusion of such evidence is a controversial issue.102 The proponents of an exclusionary rule argue that a violation of individual rights guaranteed by the law of the requested state should also result in the exclusion of the evidence obtained abroad; this should apply in particular where a court of the requested state has declared the execution of the request illegal.103 This argument finds further support in the rules on the European investigation order that obliges the trial court of the issuing Member State to take a successful remedy against the execution of the order in due consideration.104 In general, the decision not to initiate a request cannot be challenged before the courts as the decision usually does not affect the rights of the person concerned.105 With regard to a request for extradition, this appears reasonable, but there may be cases where the defendant has an interest to be tried and/or to serve his or her sentence in his/her home country.106 With regard to the latter interest, some countries provide for a legal remedy against the decision of the public prosecution service not to initiate the transfer of a prisoner for enforcement purposes.107 In addition, the

100

Austria, Sect. 2.3.2; Germany, Sect. 4.2.3.4.2; France, Sect. 3.2.3.2; Italy, Sect. 5.2.3; Norway, Sect. 7.2.3 fn. 161, Sect. 7.3.2; Portugal, Sect. 8.2.1.3; Switzerland, Sect. 9.2.3.2.1; see also the Netherlands, Sect. 6.2.1.3.1 (with regard to the inadmissibility of proceedings). 101 Austria, Sect. 2.3.2; France, Sect. 3.2.3.2; the Netherlands, Sect. 6.2.1.3.2; Norway, Sect. 7.2.3 fn. 160. 102 Germany, Sects. 4.2.3.4.2.1, 4.2.3.4.2.2; Italy, Sect. 5.2.2.2; Switzerland, Sect. 9.2.3.2.2. 103 Germany, Sect. 4.2.3.4.2.2; Italy, Sect. 5.2.2.4. 104 Austria, Sect. 2.3.2; Germany, Sect. 4.2.3.4.2.2; the Netherlands, Sect. 6.2.1.3.2; see, however, the more restrictive approach in France (France, Sects. 3.2.1.1.2, 3.2.2.3). 105 Germany, Sect. 4.2.3.4.3; France, Sect. 3.2.3.3; the Netherlands, Sect. 6.2.1.3.3; Portugal, Sect. 8.2.1.3 fn. 89; Switzerland, Sect. 9.2.3.3. 106 Portugal, Sect. 8.2.1.3 fn. 89. 107 Germany, Sect. 4.2.3.4.3; Portugal, Sect. 8.2.1.3.

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victim may have a legitimate interest in criminal prosecution and, thus, in the initiation of extradition proceedings (Art. 2, 3 ECHR).108 In the area of mutual legal assistance and the gathering of evidence, the lack of legal remedy significantly affects the position of the defendant because the decision not to initiate a request bears the risk that the exonerating evidence is not taken. However, only the Netherlands and Norway provide for a direct remedy against the decision.109 In most countries, the decision not to initiate a request is subject to an indirect review only as the convicted person may appeal the final judgment arguing that the judgment was violating his or her right to a fair trial (Art. 6 ECHR).110 As a consequence, any decision during the pretrial stage cannot be challenged before a court.111

10.2.4 New Mechanisms of Judicial Protection (SIS II and Extraterritorial Operations) New instruments of cross-border cooperation have brought forth new mechanisms of transnational judicial protection that may serve as a model for a general framework. In the Schengen Information System (SIS II), the data subject may challenge the processing and storage of personal data in the SIS II before a court of any Member State, and the decision rendered by this court shall be enforced by the authorities of all Member States (Art. 68 Regulation [EU] 2018/1862). Thereby, the plaintiff is relieved of the burden to lodge a remedy in a foreign criminal justice system. The jurisdiction of the court, however, does not extend to assessing the legality of the decision of the issuing authority on which the entry in the SIS II is based (e.g. a European arrest warrant).112 For that reason, the right to judicial review in other Member States is only relevant where the issuing Member State does not fulfil its obligation to ensure that the stored data are accurate and stored lawfully.113 In most countries, the cumulation of legal remedies in the SIS II has not gained relevance in judicial practice, and similar mechanisms have not been established.114 Finally, effective judicial protection is at stake where foreign authorities are allowed to exercise coercive powers on domestic territory (cross-border surveillance, hot pursuit, joint investigation teams). According to international law, law

108

Switzerland, Sect. 9.2.3.3. The Netherlands, Sect. 6.2.1.3.3; Norway, Sect. 7.2.3 fn. 165; see also Germany, Sects. 4.1.2.3, 4.2.3.4.3; Portugal, Sects. 8.2.1.3, 8.2.2.3. 110 Austria, Sect. 2.3.2 fn. 31; France, Sect. 3.2.3.3; Norway, Sect. 7.2.3 fn. 166; Portugal, Sect. 8.2. 2.3; Switzerland, Sect. 9.2.3.3; also in this sense Italy, Sect. 5.2.3. 111 Italy, Sect. 5.2.3; Portugal, Sects. 8.2.1.3, 8.2.2.3. 112 Germany, Sect. 4.2.4; Portugal, Sect. 8.2.2.4; Switzerland, Sect. 9.2.4. 113 Germany, Sect. 4.2.4. 114 France, Sect. 3.2.4; Italy, Sect. 5.2.4; Portugal, Sect. 8.2.2.4. 109

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enforcement authorities must not exercise coercive powers within the territory of another state so that any measure will be subject to judicial review before domestic courts. As extraterritorial operations of foreign authorities would deprive the person concerned of judicial protection before domestic courts, most states do not allow for such operations unless they are carried out under the supervision and control of domestic authorities.115 As a consequence, the measures are attributed to the competent domestic authorities, and the general rules on legal remedies apply accordingly.116 These remedies, however, may be limited to certain types of investigative powers (Italy) or gathering evidence for domestic investigations (France).117 Alternatively, the decision to authorise operations of foreign officials may be challenged before domestic courts.118 In addition, the evidence collected by foreign authorities or proceedings as a whole may be declared inadmissible by the trial court (indirect review) if the evidence shall be used in domestic proceedings.119 As far as foreign officials merely attend investigative measures (e.g. the examination of witnesses) or only play an ancillary role, there is no need for a legal remedy.120 On the other hand, extraterritorial operations of law enforcement authorities are subject to judicial review by courts of the state conducting the criminal investigation.121

10.3

Scope of Judicial Protection and Applicable Legal Standards

10.3.1 Judicial Protection and Applicable Standards in the Requested State The decision on granting a foreign request and its execution is based upon domestic law, i.e. the law of the requested state.122 As far as the execution of the request requires coercive measures (e.g. arrest, detention, search, seizure), the rules on

115

Austria, Sect. 2.2.2.5; Germany, Sect. 4.2.5; France, Sect. 3.2.5; Italy, Sect. 5.2.5; the Netherlands, Sect. 6.2.1.4; Portugal, Sect. 8.2.1.4; Switzerland, Sect. 9.2.5. 116 France, Sect. 3.2.5; Italy, Sect. 5.2.5; the Netherlands, Sect. 6.2.1.4; Norway, Sect. 7.2.5; Switzerland, Sect. 9.2.5; see also Germany, Sect. 4.2.5. 117 France, Sect. 3.2.5; Italy, Sect. 5.2.5. 118 Germany, Sect. 4.2.5; see, however, the contrary view in Portugal (Portugal, Sects. 8.2.1.4, 8.2. 2.5). 119 The Netherlands, Sect. 6.2.1.4; Portugal, Sects. 8.2.1.4, 8.2.2.5. 120 Austria, Sect. 2.2.2.5; Portugal, Sect. 8.2.1.4. 121 Germany, Sect. 4.2.5; France, Sect. 3.2.5. 122 Austria, Sects. 2.3.1.1, 2.3.2.1; Germany, Sect. 4.3.1; France, Sect. 3.3.1; Italy, Sect. 5.3.1; the Netherlands, Sect. 6.3.1; Switzerland, Sects. 9.3.1.1.1–9.3.1.1.3.

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domestic criminal proceedings apply accordingly.123 The competent authority of the requested state, however, usually does not assess facts and evidence establishing suspicion but relies on the assessment of the requesting authority (supra Sect. 10.2.2). On the other hand, most of the grounds for refusal are defined by the law of the requested state and indirectly refer to domestic criminal law (e.g. the double criminality requirement, minimum age of criminal responsibility, maximum penalty for the relevant conduct, abolishment of the death penalty and life imprisonment).124 This also applies to cooperation within the European Union, even though EU legislation on new cooperation instruments (European arrest warrant, European investigation order) has limited or abolished several traditional grounds for refusal (e.g. double criminality, ban on extradition of own nationals, no extradition for fiscal and military offences).125 Further obstacles to international cooperation are derived from the constitutional law of the requested state where the proceedings in the requesting state violate fundamental rights or general principles of law (ordre public).126 In Germany, the constitutional ordre public even applies to cooperation with other EU Member States.127 In contrast, the competent authority of the requested state does not apply foreign law (i.e. the law of the requesting state) unless otherwise provided. In the framework of mutual legal assistance (e.g. the examination of witnesses), foreign law may be applied upon the request of the requesting state ( forum regit actum).128 On the other hand, some refusal grounds refer to the law of the requesting state. For instance, the conduct must be a criminal offence, must carry a minimum penalty and must not be time-barred according to the law of the requesting state.129 However, the assessment of the requesting authority will not be questioned unless there are inconsistencies130 or doubts about whether there is a legal basis for punishment at all (nullum crimen sine lege).131 The restraints of judicial review in the requested state are based upon the assumption that the person concerned may challenge the procedural act on which

123

Austria, Sects. 2.3.1.1, 2.3.2.1; France, Sect. 3.3.1.1.1; Italy, Sect. 5.3.1; Norway, Sects. 7.3.1.1, 7.3.1.1.1; Switzerland, Sect. 9.3.1.1.2. 124 Austria, Sect. 2.3.1.1; Germany, Sect. 4.3.1; Portugal, Sect. 8.3.1.1; see also Italy, Sect. 5.3.1. 125 Austria, Sects. 2.3.1.1, 2.3.2.1; Germany, Sect. 4.3.1 fn. 164; France, Sect. 3.3.1.1.1; Portugal, Sect. 8.3.2; In France, however, the double criminality requirement does not apply to mutual legal assistance, but—albeit to a limited extent—to the execution of a European investigation order (France, Sect. 3.3.1.1.3). 126 Austria, Sects. 2.3.1.1, 2.3.2.1; France, Sects. 3.3.1, 3.3.1.2; Italy, Sect. 5.3.1; Portugal, Sect. 8.3. 1.1. 127 Germany, Sect. 4.3.1 fn. 158. 128 France, Sect. 3.3.1.1.3; Norway, Sect. 7.2.2 fn. 137; Switzerland, Sect. 9.3.1.2.2. 129 Austria, Sect. 2.3.1.1; Germany, Sect. 4.3.1; France, Sect. 3.3.1.1.1; the Netherlands, Sect. 6.3.1; Norway, Sects. 7.3.1.1 fn. 199, 7.3.1.1.1; Portugal, Sect. 8.3.1.1; see also Switzerland, Sect. 9.3.1. 1.2 (principle of reciprocity). 130 Switzerland, Sect. 9.3.1.1.1; Germany, Sect. 4.2.3.1; the Netherlands, Sect. 6.3.1; Portugal, Sect. 8.3.1.1. 131 France, Sects. 3.3.1.1.1, 3.3.1.1.3.

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the request is based before the courts of the requesting state.132 Nevertheless, a summary review is considered necessary to ensure that the requesting state has a legitimate interest in prosecution (or enforcement).133 As regards requests for mutual legal assistance (gathering of evidence), the courts of the requested state are also responsible for protecting the individual against fishing expeditions, i.e. investigative measures not related to a concrete suspicion.134 In the requesting state, international law may provide or supplement the legal basis for the granting decision (e.g. bi- or multilateral treaties on extradition or the corresponding provisions in crime control treaties).135 On the other hand, international law may constitute an obstacle to extradition or mutual legal assistance because criminal proceedings in the requesting state violate either general principles of international law (e.g. immunity or the rules on extraterritorial jurisdiction)136 or international human rights standards as enshrined in the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) (international ordre public).137 In contrast to the national (constitutional) ordre public, international human rights standards are binding upon the requesting state and, therefore, cannot be considered to interfere with the internal affairs of the requesting state.138 Similarly, EU law determines the framework of cooperation between the Member States (legislation on mutual recognition instruments) but also sets out the limits to cross-border cooperation by establishing a minimum standard of human rights (Charter of Fundamental Rights of the European Union (EU-CFR)).139 According to the conditions set out in Art. 51 EU-CFR, the fundamental rights enshrined in the Charter may even apply to cooperation with third states.140 Article 6 Treaty on European Union (TEU), in connection with the EU-CFR and the ECHR, thereby establishes a European ordre public. This European ordre public may have taken further shape through the EU legislation on procedural rights.141

132

The Netherlands, Sect. 6.3.1. Portugal, Sect. 8.3.1.1. 134 Switzerland, Sect. 9.3.1.1.1. 135 Germany, Sect. 4.3.1; France, Sects. 3.3.1.3, 3.3.1.4; the Netherlands, Sect. 6.3.1; Switzerland, Sect. 9.3.1.1.4. 136 Switzerland, Sect. 9.3.1.1.4; Portugal, Sect. 8.3.1.1. 137 Austria, Sect. 2.3.1.1; Germany, Sect. 4.3.1 fn. 156 f.; France, Sects. 3.3.1.3, 3.3.1.4; Italy, Sect. 5.3.1; the Netherlands, Sect. 6.3.1; Norway, Sect. 7.3.1.1; Portugal, Sect. 8.3.1.1; Switzerland, Sect. 9.3.1.1.4. 138 Portugal, Sect. 8.3.1.1. 139 Austria, Sect. 2.3.2.1; Germany, Sect. 4.3.1 fn. 164; France, Sects. 3.3.1.3, 3.3.1.4; Italy, Sect. 5. 3.1; Portugal, Sect. 8.3.2; see also Norway, Sect. 7.3.1.1.2. 140 Germany, Sect. 4.3.1 fn. 169; the Netherlands, Sect. 6.3.1; Portugal, Sect. 8.3.1.1. 141 Germany, Sect. 4.3.1 fn. 169; Italy, Sect. 5.3.1; see also Austria, Sect. 2.3.2.1; France, Sects. 3.3. 1.3, 3.3.1.4; Portugal, Sect. 8.3.2. 133

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10.3.2 Judicial Protection and Applicable Standards in the Requesting State In the requesting state, the applicable rules and standards on outgoing requests will mainly be derived from domestic law.142 This applies in particular to the formal and substantive requirements of the requested measure as provided in the framework of domestic criminal proceedings (arrest, detention, seizure).143 The requesting authority is not required to apply the law of the requested state and, thereby, to anticipate the decision to be taken by the requested state.144 Only French extradition law provides for a review of the extradition request after surrender, which extends to whether the extradition violated the law of the requested state.145 Nevertheless, the competent authorities of the requesting state must comply with international human rights standards (ECHR).146 The requesting state must ensure effective judicial protection against arrest and detention and provide for a legal remedy against the domestic arrest warrant on which a request for extradition is based.147 Moreover, the requesting authority must also consider the risk of human rights violations in the requested state that may result from the request.148 In the Union, Member States will have to abide by EU legislation on cooperation instruments and the formal and substantive requirements for issuing the cooperation instrument (e.g. judicial authority, proportionality)149 and also comply with the directives on procedural rights of the defendant and, where applicable, with the Charter of Fundamental Rights.150

10.4

Pleading Requirements

10.4.1 Obligation to Investigate and Burden of Proof In most of the criminal justice systems examined, the competent authority or court is obliged to verify ex officio whether all formal and substantive requirements for

142

Austria, Sects. 2.3.1.2, 2.3.2.2; Germany, Sect. 4.3.2; France, Sects. 3.3.2, 3.3.2.1; Italy, Sect. 5. 3.2; the Netherlands, Sect. 6.3.2; Switzerland, Sect. 9.3.1.2.1; in Portugal, this question is considered irrelevant because outgoing request cannot be challenged (Portugal, Sect. 8.3.1.2). 143 Austria, Sects. 2.3.1.2, 2.3.2.2; Germany, Sect. 4.3.2; France, Sect. 3.3.2.1; Italy, Sect. 5.3.2; the Netherlands, Sect. 6.3.2; Switzerland, Sect. 9.3.1.2.1. 144 Austria, Sects. 2.3.1.2, 2.3.2.2; Germany, Sect. 4.3.2; Switzerland, Sect. 9.3.1.2.2. 145 France, Sect. 3.3.2.2. 146 Austria, Sects. 2.3.1.2, 2.3.2.2; Germany, Sect. 4.3.2; France, Sect. 3.3.2.2; Italy, Sect. 5.3.2; the Netherlands, Sect. 6.3.2; Norway, Sect. 7.3.2; Switzerland, Sect. 9.3.1.2.3. 147 France, Sect. 3.3.2.3; see, in contrast, Norway, Sect. 7.3.2. 148 Germany, Sect. 4.3.2; Italy, Sect. 5.3.2; the Netherlands, Sect. 6.3.2. 149 Germany, Sect. 4.3.2. 150 Austria, Sect. 2.3.2.2; Germany, Sect. 4.3.2; see also Norway, Sect. 7.3.2.

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granting legal assistance (extradition, enforcement of sentences), including the application of potential grounds for refusal, have been met.151 The rationale of this rule lies in the principle of judicial protection itself. In essence, the right to judicial protection presupposes that both the factual and legal conditions for granting the request have been established.152 Nevertheless, the scope of the obligation to establish the relevant facts ex officio is limited.153 In general, the competent court is not obliged to examine a potential ground for refusal on its initiative unless there are facts indicating that a ground for refusal might apply.154 The more serious the allegations of human rights violations are and the more substantiated these allegations are, the more obliged the court is to investigate the circumstances of the case. Throughout the different legal systems, such indications may result from various sources. In general, the court may rely on the documents and information submitted (Germany, France, Portugal)155 but may also consider specialised knowledge such as reports of ministries or non-governmental organisations (Germany),156 as well as knowledge of specialised courts (the Netherlands).157 Besides, the respective parties to the proceedings can invoke reasons for refusal to international cooperation and provide the court with further information.158 As a matter of principle, this applies in particular to the person concerned.159 However, the majority of the countries do not lay the burden of proof on the person concerned at any point in the procedure (an exception is Italy, where the burden of proof always lies on the party objecting to the request).160,161 As the content and scope of the obligation to investigate considerably depend on the nature and weight of the

151 Germany, Sect. 4.4; France, Sect. 3.4.1 fn. 102; the Netherlands, Sect. 6.4; Switzerland, Sect. 9. 4.1; Austria, Sect. 2.4; Portugal, Sect. 8.4.1.1; Norway, Sect. 7.4; except for Italy, where the burden of proof lays on the party objecting to the request, Sect. 5.4. 152 Germany, Sect. 4.4. 153 Germany, Sect. 4.4; Switzerland, Sect. 9.4.1; the Netherlands, Sect. 6.4 fn. 219; see also in this regard Portugal, Sect. 8.4.1.1 and France, Sect. 3.4.1. 154 Germany, Sect. 4.4; Switzerland, Sect. 9.4.1; the Netherlands, Sect. 6.4; see also in this direction Norway, Sect. 7.4. 155 Germany, Sect. 4.4 fn. 180; France, Sect. 3.4.1 fn. 103; Portugal, Sect. 8.4.1.1; the Netherlands, Sect. 6.4. 156 Germany, Sect. 4.4 fn. 181. 157 The Netherlands, e.g. the Court of Amsterdam is the only court dealing with EAW-cases in the Netherlands. Because of this, the Court is aware of the different sets of detention conditions all over the EU. The Court has used its specific knowledge also in the absence of an objection raised by the person concerned, see Sect. 6.4 fn. 223. 158 Germany, Sect. 4.4; France, Sect. 3.4.1 fn. 103; Norway, Sect. 7.4; Austria, Sect. 2.4; Italy, Sect. 5.4; Portugal, Sect. 8.4.1.1; Switzerland, Sect. 9.4.1. 159 See for example Austria, Sect. 2.4. 160 Italy, Sect. 5.4; also Norway, where the burden of proof lies with the party challenging the decision; with the rule, that a person is never required to prove his/her innocence, Sect. 7.4. 161 Germany, Sect. 4.4 fn. 182.

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evidence submitted, he or she might have an interest in clarifying the facts of the case.162 As regards the level of detail of information that has to be provided to the court or authority deciding upon the request, the requirements vary among the criminal justice systems. In some jurisdictions, the person concerned only has to demonstrate that his or her position is arguable (the Netherlands);163 in others, the person must present as many details as possible to convince the competent authority to refuse the request (Italy).164 Germany requires the person concerned to assist the court in the investigation (Darlegungslast).165 Generally speaking, the level of detail cannot be determined in an abstract, general matter but has to be elaborated on a case-by-case basis. Due to the lack of specific provision in this regard, the domestic criminal procedural law might apply accordingly (France).166 The mere assertion of human rights violations is not sufficient to establish a ground for refusal on the basis of the ordre public clause. Instead, high courts demand substantiated evidence for the risk of a human rights violation to respond to the objection (Germany, France, Switzerland).167 Likewise, the intensity of examination of facts and evidence, as well as the standard of proof, varies throughout the countries. Dutch courts, for example, will most likely not initiate a thorough assessment unless severe human rights violations are at stake.168 Some countries have different (lower) requirements for the standard of proof compared to (national) criminal proceedings (Portugal).169,170

10.4.2 Differentiation Between Type of Arguments and Type of Cooperation There are no differences of general nature between arguments based on the law of the requesting state, the law of the requested state, international law and EU law in the various countries.171 However, differences in the line of argument may result from the respective ground for refusal.172 Portugal, for example, distinguishes between optional and mandatory grounds and adapts the required argumentation 162

Germany, Sect. 4.4 fn. 177; the Netherlands, Sect. 6.4; Switzerland, Sect. 9.4.1. The Netherlands, Sect. 6.4 fn. 222. 164 Italy, Sect. 5.4. 165 Germany, Sect. 4.4 fn. 183. 166 France, Sect. 3.4. 167 Germany, Sect. 4.4 fn. 187; France, Sect. 3.4.1 fn. 106; Switzerland, Sect. 9.4.1. 168 In this sense, the Netherlands, Sect. 6.4 fn. 220. 169 In this direction Portugal, Sect. 8.4.1.1. 170 The Netherlands, Sect. 6.4 fn. 222; also in this direction Norway, Sect. 7.4. 171 Italy, Sect. 5.4; Switzerland, Sect. 9.4.2; Germany, Sect. 4.4 fn. 191; Austria, Sect. 2.4. 172 Switzerland, Sect. 9.4.2. 163

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accordingly.173 The same applies to the different types of cooperation: There is no differentiation of general nature.174

10.5

Guarantees Given by the Requesting State (Zusicherung)

10.5.1 Legal Nature, Requirements and Effects Guarantees are of particular importance in international cooperation in criminal matters since a guarantee given by the requesting state often removes an obstacle to cooperation and thereby enables the requested state to grant the request.175 This effect, however, presupposes that the guarantee is deemed to be reliable.176 The guarantee primarily aims at protecting the rights and interests of the person concerned.177 Many of the legal systems examined require guarantees in their national legal systems in various places.178 In Portugal, some guarantees are even required by the constitution, e.g. if the person to be extradited faces life imprisonment.179 Even though diplomatic assurances are well known and are a common practice in international cooperation in criminal matters, their legal status bears ground for discussion.180 Nevertheless, and despite differences in the legal foundation, the criminal justice systems examined consider the guarantee to be legally binding.181 The various justifications include a unilateral commitment (Portugal),182 diplomatic engagement (France)183 or a declaration whereby the requesting state offers to conclude an international agreement with the requested state (Germany, Switzerland).184

173

Portugal, Sect. 8.4.1.1. Germany, Sect. 4.4 fn. 191; Switzerland, Sect. 9.4.3; the Netherlands, Sect. 6.4. 175 Germany, Sect. 4.5.1; the Netherlands, Sect. 6.5 fn. 228; Portugal, Sect. 8.5.1. 176 Germany, Sect. 4.5.1; Switzerland, Sect. 9.5.1.1; France, Sect. 3.5; Portugal, Sect. 8.5.1.1; the Netherlands, Sect. 6.5 fn. 229; Austria, Sect. 2.5.1. 177 Germany, Sect. 4.5.1 fn. 191; France, Sect. 3.5.1. 178 Austria, Sect. 2.5.1; Switzerland, Sects. 9.5.1/9.5.1.1; Germany, Sect. 4.5.2 fn. 225; Portugal, Sects. 8.5.1.1–8.5.1.7; the Netherlands, Sect. 6.5 fn. 227. 179 Portugal, Sect. 8.5.1.1. 180 Switzerland, Sect. 9.5.1; Portugal, Sect. 8.5.1.8; the Netherlands, Sect. 6.5 fn. 225. 181 Portugal, Sect. 8.5.1.8; France, Sect. 3.5.1.1; Germany, Sect. 4.5.1 fn. 193; Switzerland, Sect. 9. 5.1. 182 Portugal, Sect. 8.5.1.8. 183 France, Sect. 3.5.1. 184 Germany, Sect. 4.5.1 fn. 194; Switzerland, Sect. 9.5.1; in this sense also, the Netherlands, Sect. 6.5. 174

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Formal and Substantive Requirements

The examined criminal legal systems do not specify the formal and substantive requirements that a guarantee has to meet in order to remove an obstacle to cooperation.185 General constitutional and European law requirements, therefore, set the framework, and the case law of the European Court of Human Rights has to be taken into account.186 Due to the lack of specific provisions, a considerable amount of case law has come into existence in the respective countries regarding the requirements that a guarantee must meet.187 Common requirements are questions such as whether the terms of the assurance must be disclosed to the court; whether the assurances must be specific (instead of more general and vague); whether the authority that has given the assurance is competent to oblige the receiving state and, respectively, whether the guarantee has been issued by the central government of the receiving state;188 whether local authorities can be expected to abide by them; whether the assurances concern treatment that is legal or illegal in the receiving state; or even whether there is designation of a detention centre in which the suspected person will be imprisoned after extradition. Generally speaking, the more detailed and precise the guarantee is, the easier it is for the competent court to accept it and to rule extradition or any other form of cooperation admissible. A vague guarantee may not be sufficient to eliminate cooperation obstacles. In the end, the court (or the competent authority) will assess case by case whether the guarantee meets the aforementioned requirements.189 As a matter of principle, the court must always be convinced that the guarantee is reliable.190 When assessing the guarantee, the (pre-)conduct of the requesting state is therefore also taken into account.191 Switzerland, for example, distinguishes between state parties to the ECHR and ICCPR and third countries (non-state parties).192 Concerning third countries, the level of trust is considerably lower.193

10.5.1.2

Obligation to Accept the Guarantee

In most of the criminal justice systems examined, a guarantee does not by itself trigger a corresponding legal obligation of the requested state to accept the

185

France, Sect. 3.5; Switzerland, Sect. 9.5.1.1 fn. 48; Austria, Sect. 2.5.1; Norway, Sect. 7.5.1. Germany, Sect. 4.5.1 fn. 199 ff.; Switzerland, Sect. 9.5.1.1 fn. 48; France, Sect. 3.5. 187 Germany, Sect. 4.5.1 fn. 201; France, Sect. 3.5 fn. 103; also in this context Switzerland, Sect. 9. 5.1.1. 188 France, Sect. 3.5.1.1. 189 See e.g. Norway, Sect. 7.5.1. 190 Germany, Sect. 4.5.1 fn. 205. 191 The Netherlands, Sect. 6.5 fn. 229. 192 Switzerland, Sect. 9.5.1.1 fn. 50. 193 Switzerland, Sect. 9.5.1.1 fn. 50, concerning third countries, the level of trust is lower. 186

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guarantee.194 Unless international treaties foresee specific deviating rules, the question of accepting the guarantee remains at the discretion of the court or authority competent to assess whether the guarantee is sufficient to dispel the obstacle to the requested assistance (Portugal, Germany, Switzerland, Italy).195 One exception is Austria, where legal provisions in this regard do not leave any room for discretion.196 Nevertheless, even without a legal obligation to accept the guarantee, favourable treatment of incoming requests will generally promote the requested state to accept the guarantee if it was declared sufficient for dispelling the obstacle (Switzerland, Portugal).197

10.5.1.3

Monitoring Compliance After Granting a Request

As far as monitoring the compliance after granting a request is concerned, none of the criminal justice systems examined provide for any further involvement of the requested state after the request has been executed.198 However, recent developments show a tendency that courts increasingly demand compliance with the guarantee to be verified, e.g., through a visit of diplomatic or consular staff at the detention centre.199

10.5.2 Legal Remedies Against the Violation of a Guarantee in the Requesting State The criminal justice systems examined do not provide for judicial protection against a breach of a guarantee.200 This follows from the understanding that a guarantee as such is generally not intended to establish individual rights.201 According to modern theory of international law, however, the rights and obligations of individuals can be

194

Portugal, Sect. 8.5.1.8; Switzerland, Sect. 9.5.1.2; France, Sect. 3.5.1.1 fn. 125; Germany, Sect. 4.5.1 fn. 213; the Netherlands, Sect. 6.5; except for Austria where authorities are obliged to accept a sufficient guarantee, Sect. 2.5.1. 195 Portugal, Sect. 8.5.1.8; Germany, Sect. 4.5.1 fn. 213; Switzerland, Sect. 9.5.1.2; Italy, Sect. 5.5. 1.1. 196 Austria, Sect. 2.5.1. However, the underlying question whether the guarantee is sufficient to dispel the relevant obstacle to the requested assistance remains subject to the assessment and evaluation of the competent authorities. 197 Switzerland, Sect. 9.5.1.2; see also Portugal, Sect. 8.5.1.8. 198 Germany, Sect. 4.5.1 fn. 214; Italy, Sects. 5.5.1.1, 5.5.1.2; Austria, Sect. 2.5.1; Switzerland, Sect. 9.5.1.3; France, Sect. 3.5.1.1 fn. 125; the Netherlands, Sect. 6.5 fn. 230. 199 Germany, Sect. 4.5.1 fn. 214, Sect. 4.5.3 fn. 234; Switzerland, Sect. 9.5.1.3; France, Sect. 3.5.1.1 fn. 126. 200 Portugal, Sect. 8.5.2; France, Sect. 3.5.2. 201 Portugal, Sect. 8.5.2; Germany, Sect. 4.5.2 fn. 222.

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derived from international agreements. Therefore, it depends on the content of the guarantee whether and to what extent it establishes individual rights,202 and this issue must be examined on a case by case basis. If the violation of the guarantee results in a violation of an individual right, the general rules on judicial review in domestic proceedings apply accordingly.203 Depending on the individual right affected by the violation of the guarantee, judicial review will be provided by the competent court.204 In several countries, the guarantee given by the requesting state has a binding effect in domestic criminal proceedings (the Netherlands, Germany, Austria).205 As a consequence, a breach of the guarantee could, for example, deprive the public prosecution service of its right to prosecute (the Netherlands),206 result in the nullity of the judgment (Austria)207 or render evidence inadmissible at trial (Germany).208

10.5.3 Legal Remedies Against the Violation of a Guarantee in the Requested State The requested state has no power to force the requesting state to comply with the guarantee after the request has been executed.209 The requested state consequently loses its capacity to take a decision upon the request. In particular, the requested state may not readily demand that the request be reversed.210 The only way to express the disapproval about the disregard of the guarantee lies in the use of diplomatic channels.211 An official protest could be lodged.212 However, the violation of a guarantee will possibly not remain without consequences for future cooperation with the requesting state: as the guarantee of that state has proven not to be reliable, it will

202

Portugal, Sect. 8.5.2; Germany, Sect. 4.5.2 fn. 223; Austria, Sect. 2.5.2. Switzerland, Sect. 9.5.2; in this direction also the Netherlands, Sect. 6.5 as well as Norway, Sect. 7.5.2. 204 Switzerland, Sect. 9.5.2. 205 The Netherlands, Sect. 6.5 fn. 231; Germany, Sect. 4.5.2 (assuming a corresponding application of the provisions on conditions); Austria, Sect. 2.5.2. 206 The Netherlands, Sect. 6.5 fn. 232. 207 Austria, Sect. 2.5.2. 208 Germany, Sect. 4.5.2 (assuming a corresponding application of the provisions on conditions). 209 Germany, Sect. 4.5.3; Switzerland, Sect. 9.5.3; Portugal, Sect. 8.5.3; also in this regard Italy, Sect. 5.5.3. 210 Germany, Sect. 4.5.3; Switzerland, Sect. 9.5.3. 211 Germany, Sect. 4.5.3; Switzerland, Sect. 9.5.3 referring ultimately to the use of a complaint before the European Court of Human Rights; also Portugal, Sect. 8.5.3; see in this regard also Italy, Sect. 5.5.1.1. 212 Germany, Sect. 4.5.3. 203

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be unlikely that further guarantees will be accepted and that, on that basis, future requests will be granted.213

10.5.3.1

Complaints Against the Granting Authority

The possibilities of filing a complaint against the granting authority are not uniform among the countries examined. Some countries neither provide for the possibility to file a complaint against the authority that has granted the request (Austria, Italy, France),214 nor is it possible to demand taking action against the requesting state.215 Other countries refer to the general rules on judicial protection, e.g. before administrative courts, which turned out to be problematic as the requested state does not have any means of ensuring compliance with the guarantee.216 In this context, reference should be made to the case of Abu Salem Ansari.217 In this case, an Indian citizen was extradited from Portugal to India. Portugal executed the Indian request only after guarantees were made that Abu Salem Ansari would be treated in conformity with international law and that further guarantees that had been given by the Indian government would be respected.218 Still, Abu Salem Ansari was sentenced to three penalties of life imprisonment after his extradition; without the Indian authorities commutating or modifying the sentences to a maximum of 25-year imprisonment, the sentencing would violate the guarantee. The Portuguese Supreme Court found that—under these circumstances—the extradition was illegal.219 Notwithstanding the court’s decision, the Portuguese government did not ask India to return Abu Salem Ansari to Portugal. Therefore, he filed a lawsuit against the Portuguese state. The proceedings are still pending.220 In this light, the Swiss model stands out in particular. The Swiss legal system provides for a two-sided complaint mechanism221 and thereby constitutes an exception in the group of criminal legal systems examined. First, any person who is personally and directly affected by a mutual assistance measure or extradition is entitled to appeal the decision of whether a given guarantee meets the requirements set before the Appeal Chamber of the Federal Criminal Court. Second, the person concerned has a general right to appeal the final ruling of the Federal Office, including a review of whether the whole guarantee process was satisfactory.222

213

Germany, Sect. 4.5.3; Switzerland, Sect. 9.5.3. Austria, Sect. 2.5.3; Italy, Sect. 5.5.3; France, Sect. 3.5.2. 215 Austria, Sect. 2.5.3; Italy, Sect. 5.5.3; France, Sect. 3.5.2. 216 Germany, Sect. 4.5.3.1 fn. 237. 217 Portugal, Sect. 8.5.3. 218 Portugal, Sect. 8.5.3. 219 Portugal, Sect. 8.5.3. 220 Portugal, Sect. 8.5.3. 221 Switzerland, Sect. 9.5.3.1. 222 Switzerland, Sect. 9.5.3.1. 214

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Due to the limited possibilities for ensuring that guarantees are upheld, the necessity of diplomatic support in this field is of particular importance.223

10.5.3.2

Claiming Damages

The possibility of the person concerned to claim damages in case of a violation of an individual right resulting from a violation of a given guarantee is a difficult issue in all examined criminal justice systems. Only Austria and Switzerland provide for specific provisions in this regard.224 Due to the lack of particular provisions dealing with a claim for damages in the case of a violation of a given guarantee, most of the countries apply general rules on public liability or unlawful state acts.225 The prerequisites can hardly be met as the mere violation of the guarantee by the requesting state does not give rise to a claim for compensation by the requested state (Portugal, Germany),226 and liability for the wrongdoing of the requesting state proves difficult to justify.227

10.6

Effectiveness of Judicial Review

10.6.1 General Requirements (Access to Information and Suspensory Effect of the Remedy) This section deals with the question of how effective judicial review is in transnational criminal proceedings. Effectiveness refers to the right to defend oneself and thus is primarily understood to refer to procedural safeguards.

10.6.1.1

Informing the Person Concerned in the Requested State

The information of the person concerned is the fundament of effective judicial review because the person cannot exercise his or her legal rights if he or she is ignorant of the need to do so. However, most of the states do not provide a general obligation to inform the person concerned about requests.228 The exception is Portugal. Under Portuguese law, the right to information is recognised for all types

223

Switzerland, Sect. 9.5.3.1; also in this direction Portugal, Sect. 8.5.3. Austria, Sect. 2.5.3; Switzerland, Sect. 9.5.3.2. 225 Germany, Sect. 4.5.3.2; Portugal, Sect. 8.5.3; Switzerland, Sect. 9.5.3.2.; Norway, Sect. 7.5.2. 226 Portugal, Sect. 8.5.3; Germany, Sect. 4.5.3.2. 227 Germany, Sect. 4.5.3.2; the Netherlands, Sect. 6.5 fn. 229. 228 Germany, Sect. 4.6.1.1; Italy, Sects. 5.6.1.1.1–5.6.1.1.3; France, Sect. 3.6.1.1; Austria, Sect. 2. 6.1; the Netherlands, Sect. 6.6.1; Norway, Sect. 7.6.1.1; Switzerland, Sect. 9.6.1.1. 224

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of cooperation.229 Yet the Portuguese report points out that there are mechanisms making this rule less effective in case of mutual legal assistance.230 This does not mean that all other states offer no protection at all. Rather, they distinguish more clearly between different types of cooperation, i.e. extradition, enforcement of judgments and mutual legal assistance. In case of extradition and surrender proceedings, the states offer the best protection of the individual’s right to information: in all states, information about the request is given to the person concerned before the decision on granting or denying extradition is taken.231 Some reports link this right closely to the right to be heard.232 The states also make sure that the information is provided in a language that the person concerned can understand, at least in cases of surrender on the basis of a European arrest warrant.233 However, the German report points out that this does not necessarily apply to the final decision granting extradition.234 In some states, the same rules apply to the execution of foreign judgments.235 French law distinguishes between cases that have to be decided by a tribunal or by the chief prosecutor and EU Member States and third states.236 Information about requests from EU Member States is given only after the decision has been taken in order to make an appeal possible.237 In Norway, the person concerned is informed but does not necessarily have the right to attend the court proceedings on the request.238 The opposite is true for cases of mutual legal assistance and European investigation orders. Here, most states do not inform the person concerned of the request before it is executed.239 The exception is Italy, where there is an obligation to inform the person concerned about the recognition of the European investigation order in order to allow for the lawyer’s participation.240 Judicial review follows the rules of

229

Portugal, Sect. 8.6.1.1 fn. 188, 193/194. Portugal, Sect. 8.6.1.1. 231 Austria, Sect. 2.6.1; France, Sect. 3.6.1.1; Germany, Sect. 4.6.1.1; Italy, Sects. 5.6.1.1.1, 5.6.1. 2.1; the Netherlands, Sect. 6.6.1; Norway, Sect. 7.6.1.1; Portugal, Sect. 8.6.1.1; Switzerland, Sect. 9.6.1.1. 232 Germany, Sect. 4.6.1.1; Italy, Sect. 5.6.1.1.1; Switzerland, Sect. 9.6.1.1. 233 Austria, Sect. 2.6.1; France, Sect. 3.6.1.1; Germany, Sect. 4.6.1.1; Italy, Sects. 5.6.1.1.1, 5.6.1. 2.1; the Netherland, Sect. 6.6.1; Portugal, Sect. 8.6.1.1. 234 Germany, Sect. 4.6.1.1. 235 Germany, Sect. 4.6.1.1; Italy, Sects. 5.6.1.1.3, 5.6.1.2.3; Portugal, Sect. 8.6.1.1. 236 France, Sect. 3.6.1.1 fn. 137. 237 France, Sect. 3.6.1.1 fn. 138. 238 Norway, Sect. 7.6.1.1. 239 Austria, Sect. 2.6.1; France, Sect. 3.6.1.1 fn. 139; Germany, Sect. 4.6.1.1; Italy, Sect. 5.6.1.1.2 (non-EU context); the Netherlands, Sect. 6.6.1; Norway, Sect. 7.6.1.1; Portugal, Sect. 8.6.1.1; Switzerland, Sect. 9.6.1.1. 240 Italy, Sect. 5.6.1.2.2. 230

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the criminal procedure law for national investigative measures.241 However, the transnational dimension of MLA sometimes leads to lesser standards of judicial review in law (the Netherlands) or in practice (France, Switzerland).242 The effectiveness of the information, if provided, varies. Most states offer a translation of the information if necessary.243 In some states, the information contains the legal basis (Portugal, Switzerland),244 in others not (France, Germany, Italy).245

10.6.1.2

Informing the Person Concerned in the Requesting State

As a general rule, none of the countries examined in this project inform the person concerned about a request for legal assistance.246 Exceptions are made for the request to execute a prison sentence (France, Italy),247 for requests that affect the person concerned personally and require ex ante judicial review (Portugal)248 and as a concession to data protection law (Switzerland),249 albeit in the latter case as limited as possible. The latter aspect also plays a role with regard to access to information contained in an international database. Again, the person concerned is usually not informed of the request contained in the database.250 However, several reports point out that data protection law enables the person concerned to get information on personal data contained in such databases.251

241

Austria, Sect. 2.6.1 (but additional rules for long-distance interrogation); Germany, Sect. 4.6.1.1; France, Sect. 3.6.1.1; Italy, Sect. 5.6.1.1.1; the Netherlands, Sect. 6.6.1. 242 France, Sect. 3.6.1.1: notification dependent on indictment; Switzerland, Sect. 9.6.1.1: notification dependent on domicile, address, or private contract; the Netherlands, Sect. 6.6.1 fn. 249: no judicial leave procedure for European investigation orders. 243 See, e.g., Austria, Sect. 2.6.1; France, Sect. 3.6.1.1 fn. 141; Germany, Sect. 4.6.1.1; Italy, Sects. 5.6.1.1.1–5.6.1.1.3; the Netherlands, Sect. 6.6.1; Portugal, Sect. 8.6.1.1. 244 Portugal, Sect. 8.6.1.1; Switzerland, Sect. 9.6.1.1. 245 France, Sect. 3.6.1.1 fn. 136; Germany, Sect. 4.6.1.1; Italy, Sect. 5.6.1.2.1 (but access to the file and the legal basis possible). 246 Austria, Sect. 2.6.1; France, Sect. 3.6.1.1 fn. 139; Germany, Sect. 4.6.1.2; Italy, Sects. 5.6.1.1.1– 5.6.1.1.2, 5.6.1.2.1–5.6.1.2.2; the Netherlands, Sect. 6.6.1; Portugal, Sect. 8.6.1.1 fn. 196; Switzerland, Sect. 9.6.1.2. 247 France, Sect. 3.6.1.1 fn. 140; Italy, Sects. 5.6.1.1.3, 5.6.1.2.1. 248 Portugal, Sect. 8.6.1.1 fn. 196. 249 Switzerland, Sect. 9.6.1.2. 250 France, Sect. 3.6.1.1 fn. 139; Italy, Sect. 5.6.1.2.1. 251 Austria, Sect. 2.2.4; Germany, Sect. 4.6.1.2; the Netherlands, Sect. 6.6.1; Switzerland, Sect. 9.6. 1.2.

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10.6.1.3

387

Access to the File

All states grant access to the file to some extent. Mostly, the rules on transnational proceedings refer to national criminal procedure law.252 The German report points out that the granting procedure is considered to be administrative law and thus follows a different set of rules.253 Sometimes there are special provisions for extradition and European arrest warrants.254 Some of the reports emphasise that access to the file can be restricted for reasons of secrecy. This might be secrecy required by the foreign investigation (Switzerland) or a general rule on secrecy at the investigative level (Portugal, the Netherlands, Norway, Italy, Switzerland).255 If the state is requesting legal assistance, the rules differ: e.g., the Netherlands treat the person concerned by the request as a defendant and grant access to the file, while France does not give access to the file at all.256 On the contrary, the execution of a foreign request is not considered to be part of criminal proceedings in Norway, meaning that the rules on access to the file in criminal proceedings do not apply.257

10.6.1.4

Suspensive Effect of Legal Remedies in the National Legal System

The answer to the question of whether legal remedies have a suspensive effect is, again, dependent on the measure of legal assistance. In case of extradition and European arrest warrants, the request is generally not executed if the decision to extradite or surrender is contested.258 Some reports point out that this is due to the fact that judicial review ex ante is required in these cases.259 In France, the practice is not to extradite someone in case of an appeal, even if there is no legal suspensive effect.260 In Italy, an appeal does not have suspensive effect if the person concerned has consented to the European arrest warrant.261 The states differ in the matter of the execution of foreign judgments. In some states, legal remedies have a suspensive effect (Austria, Italy, Portugal),262 in others

252

Austria, Sect. 2.6.1; France, Sect. 3.6.1.1; Germany, Sect. 4.6.1.3; Norway, Sect. 7.6.1.2. Germany, Sect. 4.6.1.3. 254 E.g. in France, Sect. 3.6.1.1; Italy, Sects. 5.6.1.1.1, 5.6.1.2.1; Switzerland, Sect. 9.6.1.3. 255 Portugal, Sect. 8.6.1.1 fn. 198; the Netherlands, Sect. 6.6.1 fn. 248; Norway, Sect. 7.6.1.2; Switzerland, Sect. 9.6.1.3; Italy, Sect. 5.6.1.2.2. 256 France, Sect. 3.6.1.1 fn. 142; the Netherlands, Sect. 6.6.1. 257 Norway, Sect. 7.6.1.2. 258 France, Sect. 3.6.1.2; Switzerland, Sect. 9.6.1.4; Germany, Sect. 4.6.1.4; Italy, Sects. 5.6.1.1.1, 5.6.1.2.1; Portugal, Sect. 8.6.1.1 fn. 201; Norway, Sect. 7.6.1.3. 259 Germany, Sect. 4.6.1.4; France, Sect. 3.6.1.2. 260 France, Sect. 3.6.1.2 fn. 144. 261 Italy, Sect. 5.6.1.2.1. 262 Austria, Sect. 2.6.1 fn. 52; Italy, Sects. 5.6.1.1.3, 5.6.1.2.3; Portugal, Sect. 8.6.1.1 fn. 201. 253

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not (Germany, Switzerland).263 In other cases of legal assistance, particularly requests for investigative measures and European investigation orders, there is mostly no general suspensive effect, the exception being the Netherlands.264 Often the defendant can apply or at least ask for a suspensive effect, or the court can decide to establish the suspensive effect ex officio.265 The suspensive effect is usually granted or established if the transmission of evidence would cause serious harm to the person concerned.266 In Portugal, the law follows a similar approach.267 Some states distinguish between EU Member States and other states, albeit in very different ways. French law recognises a suspensive effect in dealings with EU Member States (execution of foreign judgments, gathering of evidence) but not in similar dealings with non-Member States.268 The same is true for Italy in European investigation order cases, although the suspensive effect is at the discretion of the public prosecutor.269 In contrast, Germany stops the transfer of evidence to non-Member States in certain cases until the admissibility of the transfer has been judged upon.270 Portugal has an explicit rule on the suspensive effect of legal remedies for extradition to non-Member States only.271 The Netherlands does not apply the judicial procedure for granting leave in European investigation order cases.272 This procedure requires the executing authority to get judicial leave for transferring evidence if the person concerned could not be informed for reasons of secrecy.273 Dutch law also allows the transfer of evidence on a provisional basis, but only if it is based on a European investigation order.274 Cooperation with non-Member States was excluded from this rule because it was feared that this rule could not be enforced.275

263

Germany, Sect. 4.6.1.4; Switzerland, Sect. 9.6.1.4. See, e.g., Germany, Sect. 4.6.1.4; Italy, Sect. 5.6.1.1.2; Norway, Sect. 7.6.1.3; Switzerland, Sect. 9.6.1.4; but also the Netherlands, Sect. 6.6.1 fn. 248. 265 Austria, Sect. 2.6.1 fn. 52; France, Sect. 3.6.1.2 fn. 146 (only European investigation order); Germany, Sect. 4.6.1.4; Italy, Sect. 5.6.1.2.2 (only European investigation order). 266 Austria, Sect. 2.6.1; France, Sect. 3.6.1.2; Italy, Sect. 5.6.1.2.2; Switzerland, Sect. 9.6.1.4. 267 Portugal, Sects. 8.6.1.1, 8.6.2.1. 268 France, Sect. 3.6.1.2 fn. 148. 269 Italy, Sect. 5.6.1.2.2. 270 Germany, Sect. 4.6.1.4. 271 Portugal, Sect. 8.6.2.1. 272 The Netherlands, Sects. 6.1.2.3.3, 6.6.1. 273 The Netherlands, Sect. 6.1.2.3.3. 274 The Netherlands, Sect. 6.6.1. 275 The Netherlands, Sect. 6.6.1. 264

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10.6.1.5

389

Suspensive Effect of Legal Remedies in the Foreign Legal System

Legal remedies that have been lodged in the foreign legal system do not have a suspensive effect in the national system of any of the states.276 However, the outcome of foreign legal remedies naturally influences cooperation.277 The Portuguese report points out that decisions on the suspension of the transfer of evidence might take foreign legal remedies into account, but there is no explicit rule on this.278 In Norway, the authority deciding on the request might take legal remedies in the requesting state into account but is not obliged to do so.279

10.6.1.6

Consequences if International Cooperation Has Been Declared Inadmissible Before Execution

All states agree that cooperation will not be granted if it has been declared inadmissible; i.e., the request will not be executed.280 At the same time, the rules on compensation for detention prior to extradition or the execution of a European arrest warrant differ considerably. Most states apply the rules that are in place for compensation in national cases of wrongful detention, which are rather narrow in some countries (Portugal).281 The Austrian report points out that detention can be unlawful in the transnational context if surrender would have to be refused.282 German courts refuse compensation in transnational proceedings if the foreign requesting state is responsible for the wrongful detention.283 In contrast, Swiss law allows for compensation in these cases, although the possibility to obtain damages from the foreign state must be taken into account.284 The Netherlands even go beyond this rule: the possibility of redress in the foreign state has no effect on compensation.285 Because French law limits compensation to cases of pretrial detention, there is no compensation possible in the case of detention prior to extradition or surrender.286

276

See Austria, Sect. 2.6.1 fn. 55; Germany, Sect. 4.6.1.5; Italy, Sects. 5.6.1.1.1–5.6.1.1.3; Norway, Sect. 7.6.1.4; Portugal, Sects. 8.6.1.1, 8.6.2.1; Switzerland, Sect. 9.6.1.5. 277 See, e.g., Portugal, Sect. 8.6.1.1. 278 Portugal, Sect. 8.6.2.1. 279 Norway, Sect. 7.6.1.4. 280 Austria, Sect. 2.6.1 fn. 56; France, Sects. 3.6.1.2, 3.6.2.1, 3.6.2.2; Germany, Sect. 4.6.1.6; Italy, Sect. 5.6.1.1.1. The other reports imply the same when explaining the compensation scheme. 281 Austria, Sect. 2.6.1 fn. 56; Italy, Sect. 5.6.1.1.1; the Netherlands, Sects. 6.6.1 fn. 244, 6.6.2 fn. 253; Norway, Sect. 7.6.1.4; Portugal, Sect. 8.6.1.1 fn. 204; Switzerland, Sect. 9.6.1.6. 282 Austria, Sect. 2.6.1 fn. 57. 283 Germany, Sect. 4.6.1.6. 284 Switzerland, Sect. 9.6.1.6. 285 The Netherlands, Sect. 6.6.2 fn. 255. 286 France, Sect. 3.6.1.2.

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10.6.2 Additional Procedural Safeguards 10.6.2.1

Finding a Lawyer in the Foreign State

Considering that transnational proceedings involve per definition at least two different legal systems, that of the requesting and the requested state, the person concerned will often need legal representation in both jurisdictions. Nonetheless, none of the states provides help in finding a lawyer in a foreign state.287 Exceptions exist exclusively for European arrest warrant proceedings due to the relevant provision in Art. 10 (4, 5) Directive 2013/48/EU, but not in all Member States (only Austria, France, the Netherlands).288 The consequences of breaching this right are strict in France (annulment of the procedure) and less strict in the Netherlands (no postponement of surrender in case of violation in the issuing state).289 The Portuguese report points out that the Directive should apply directly by now in case of non-transposition.290

10.6.2.2

Translation of Legal Remedies

Another important aspect in assuring the effectiveness of judicial review in a transnational context is the need to provide help with translating important documents. Most reports note that the person concerned has the right to be supported by an interpreter.291 The scope of the right to have documents translated is less uniform. The states often refer to ‘essential documents’, which leaves a lot of room for interpretation in the context of judicial review.292 There is no general rule on translating requests for cooperation.293 Some states provide for a written translation of a legal remedy (Austria, Portugal),294 others do not (France, Switzerland).295 Several reports point out that the right to interpretation and translation is less protected in MLA cases than in cases of extradition and surrender and the execution of foreign judgments.296 This might be due to the fact that extradition and the

287 Austria, Sect. 2.6.2; France, Sect. 3.6.1.3.1; Germany, Sect. 4.6.2.1; Italy, Sect. 5.6.2; the Netherlands, Sect. 6.6.1; Norway, Sect. 7.6.2; Portugal, Sects. 8.6.1.2, 8.6.2.2; Switzerland, Sect. 9.6.2.1. 288 Austria, Sect. 2.6.2; France, Sect. 3.6.1.3.1; the Netherlands, Sect. 6.6.1. 289 France, Sect. 3.6.1.3.1; the Netherlands, Sect. 6.6.1. 290 Portugal, Sect. 8.6.2.2 fn. 236. 291 Austria, Sect. 2.6.2; France, Sect. 3.6.1.3.2; Germany, Sect. 4.6.2.2; Italy, Sect. 5.6.2; the Netherlands, Sect. 6.6.1; Norway, Sect. 7.6.2; Portugal, Sect. 8.6.1.2. 292 France, Sect. 3.6.1.3.2; Germany, Sect. 4.6.2.2; Norway, Sect. 7.6.2. 293 France, Sect. 3.6.1.3.2. 294 Austria, Sect. 2.6.2; Portugal, Sect. 8.6.1.2. 295 France, Sect. 3.6.1.3.2 fn. 152; Switzerland, Sect. 9.6.2.2. 296 France, Sect. 3.6.1.3.2; Portugal, Sects. 8.6.1.2, 8.6.2.2.

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execution of foreign judgments bear more similarities to an ordinary criminal trial.297 However, under Italian law, the decision to recognise a European investigation order may be translated, and a refusal of translation can be challenged in court.298

10.6.2.3

Other Procedural Support

None of the reports indicates any other form of procedural support in transnational cases.299 The Swiss report points out that the major procedural guarantee is the right to be heard assisted by a lawyer.300 This assessment also seems to be true for the other countries. However, Norway has a special Control Committee for Communications Monitoring, whose task is to supervise the police’s control of surveillance measures. Anyone who claims to have been controlled unlawfully by the Norwegian police can file a complaint to the committee, even if this person is living abroad. In this respect, legal remedies against surveillance measures might be facilitated in cases of transnational cooperation. Nonetheless, this seems to be a side effect of Norwegian national law, not a guarantee that was designed for cases of transnational cooperation.

10.6.3 Ineffectiveness of Ex Post Facto Judicial Review? As was shown above, legal remedies do not in all cases have a suspensive effect. Accordingly, it must be questioned, what happens if it turns out that a request or its execution was illegal after it has been executed? All reports illustrate that the problem of the ineffectiveness of ex post facto judicial review is largely overlooked by the legislator, even if it has become important in practice.

10.6.3.1

Consequences in the Requesting State After Transfer or Execution of the Request Was Found Illegal by Foreign Court in the Requested State

The first situation to look into is the consequences in the requesting state if the state is later informed that either the execution of the request or the transfer of evidence

297

Portugal, Sect. 8.6.1.2. Italy, Sect. 5.6.1.2.2. 299 Explicit denial in Austria, Sect. 2.6.2 fn. 61; Germany, Sect. 4.6.2.3; Italy, Sect. 5.6.2; Switzerland, Sect. 9.6.2.3. 300 Switzerland, Sect. 9.6.2.3. 298

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(in case of legal assistance) or persons (in case of extradition/European arrest warrant) was illegal under the law of the foreign state. In case of extradition and surrender on the basis of a European arrest warrant, there are no consequences in the requesting state if extradition is found illegal in the foreign state after it has been executed.301 The reason for this is apparently the principle of non-inquiry, i.e. the idea that a state does not decide upon the legality of foreign acts under foreign law. Nonetheless, this rule applies even when the other state has explicitly declared that the extradition or surrender was illegal. Interestingly, Dutch case law limits this reasoning so far to cooperation with states that are contracting parties to the ECHR, i.e. states that have a high human rights standard.302 It might be that Dutch courts would look at the legality of extradition if the requested state did not offer sufficient human rights protection. This would in fact be a subsidiary application of Dutch law. Some reports point out that the requesting state still remains responsible for having transmitted the request and that there would be consequences if the request itself was illegal.303 In contrast to the majority view explained above, the Portuguese report suggests that the illegally extradited person should no longer be detained or prosecuted.304 This follows from an interpretation of the speciality rule.305 If, however, the person has already been finally convicted, res judicata takes precedence over the specialty rule.306 It should be noted that this view is purely academic and supported by neither legislation nor case law. If a state has requested the enforcement of its sentence in a foreign country and the granting or execution of the request is illegal, the foreign state will simply stop enforcement.307 All that remains for the requesting state is to ask for the extradition of the person concerned in order to ensure the enforcement of the sentence.308 The matter of the transfer of evidence is slightly different because evidence is typically used and assessed in trial. The question is, therefore, if and to what extent the illegality of international cooperation influences the use of the evidence thus obtained in national criminal procedure. As has been shown above (Sect. 10.2.3), this is a controversial issue: some states accept such an argument in principle;309

301

France, Sect. 3.6.2.1; Germany, Sect. 4.6.3.1; Italy, Sects. 5.6.1.2.1, 5.6.3; the Netherlands, Sect. 6.2.1.3.2 fn.187; Switzerland, Sect. 9.6.3.1. 302 The Netherlands, Sect. 6.2.1.3.2. 303 See, especially, France, Sect. 3.6.2.1; also the Netherlands, Sect. 6.2.1.3.2; Switzerland, Sect. 9. 6.3.1. 304 Portugal, Sects. 8.6.1.3, 8.6.2.3. 305 Portugal, Sect. 8.6.1.3 fn. 211. 306 Portugal, Sect. 8.6.1.3. 307 Portugal, Sect. 8.6.1.3 fn. 210. 308 Italy, Sect. 5.6.3. 309 Italy, Sect. 5.6.3; Norway, Sect. 7.6.3; Portugal, Sect. 8.6.2.3; Switzerland, Sect. 9.2.3.2.2.

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others do not.310 When the evidence has been transferred by means of a European investigation order that has been successfully challenged before the courts in the executing state, Art. 14 para. 7 Directive 2014/41/EU obliges the Member States to take this fact into account when deciding on the admissibility of the evidence. Accordingly, even those states that would not allow for an assessment of the legality of international cooperation in principle do so in the European investigation order context.311 French law contains a rule stating that the evidence based on the European investigation order must not be the only incriminating evidence.312

10.6.3.2

Consequences in the Requested State After Transfer or Execution Was Found Illegal by a Domestic Court

In the opposite scenario, the requested state has executed the request and transferred the prisoner or the evidence before its own courts have decided that granting the request or executing it was illegal. In cases of extradition and surrender on the basis of a European arrest warrant, judicial review is generally provided ex ante or has suspensive effect (see Sect. 10.6.1.4). This means that the problem ought not to arise in these cases.313 Exceptionally, this might be the case when the European Court of Human Rights later finds the execution of the request illegal314 or if the legal remedy does not have a suspensive effect;315 in these cases, there does not seem to be a binding way for having extradition or surrender reversed. In cases in which the enforcement of a foreign sentence is declared illegal in the requested state, this state will presumably stop enforcing the sentence. The French report points out that this might mean that the person must be transferred back because the legal basis for imprisonment has been annulled.316 If evidence has already been transferred to the requesting state, there is mostly no duty to inform the requesting state of the outcome of judicial review and no obligation to get the evidence back.317 The latter is probably due to difficulties in enforcing such a rule.318 In France, judicial review is further restricted because 310

Austria, Sect. 2.6.3; Germany, Sect. 4.6.3.1; France, Sect. 3.6.2.; the Netherlands, Sect. 6.2.1. 3.2. 311 Austria, Sect. 2.6.3; Germany, Sect. 4.6.3.1; the practice is unclear in the Netherlands so far, the Netherlands, Sect. 6.2.1.3.2 fn. 187. 312 France, Sect. 3.6.2.1. 313 Austria, Sect. 2.6.3; Italy, Sect. 5.6.3; Portugal, Sect. 8.6.1.3; Switzerland, Sect. 9.6.3.2. 314 Switzerland, Sect. 9.6.3.2. 315 For an example, see Italy, Sect. 5.6.3. 316 France, Sect. 3.6.2.2. 317 France, Sect. 3.6.2.2; Germany, Sect. 4.6.3.2; Norway, Sect. 7.6.3; Portugal, Sect. 8.6.1.3. Italy has a duty to inform in European investigation order cases, but no duty to get the information back, Italy, Sect. 5.6.3. 318 Germany, Sect. 4.6.3.2; Switzerland, Sect. 9.6.3.2.

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courts even refuse to decide on the legality of investigative measures after the evidence gathered has been transferred.319 Some states explicitly allow a provisional transfer in European investigation order cases.320 Switzerland seems to be the only country where a legal obligation to reverse the effects of illegal transfer is acknowledged.321 In a case on a potentially illegal transfer of evidence, the court claimed that Swiss authorities were obliged to retrieve the evidence on the basis of Art. 46 ECHR.322 None of the other countries has followed this approach so far. The flaw in this reasoning is that Swiss authorities have no means to force other states to hand back evidence.323 In fact, Swiss authorities could only try to get the information back by diplomatic means.324

10.6.3.3

Repatriating Individuals and Evidence After Illegal Transfer

In view of the difficulties in reversing the effects of an illegal transfer, it might be a good idea to oblige the acting authorities to make transfer provisional in cases in which judicial review is still in progress. Only Dutch law has a similar provision for the exceptional cases when transfer on the basis of a European investigation order is permitted before a decision about legal remedies has become final.325 Other states allow a conditional transfer but do not oblige states to make use of these conditions.326 Even if such an obligation could be found, the problem remains that guarantees given by the requesting state are mainly dependent on that state’s goodwill, given that the fulfilment of guarantees cannot be enforced. Martin Böse Professor of Criminal Law, Criminal Procedure, International and European Criminal Law, University of Bonn, Germany. Maria Bröcker Research assistant, University of Bonn, Germany. Anne Schneider Professor of German, European and International Criminal Law, Criminal Procedure, White Collar Crime, University of Mannheim, Germany.

319

France, Sect. 3.6.2.2. The Netherlands, Sect. 6.1.2.3.3 fn. 147; Portugal, Sect. 8.6.2.3. 321 Switzerland, Sect. 9.6.3.2. 322 Switzerland, Sect. 9.6.3.2. 323 Switzerland, Sect. 9.6.3.2. 324 Switzerland, Sect. 9.6.3.2; see also Portugal, Sect. 8.6.1.3. 325 The Netherlands, Sect. 6.1.2.3.3 fn. 147. 326 E.g. Portugal, Sect. 8.6.2.3; Germany, Sect. 4.6.3.3; Italy, Sect. 5.6.3; Norway, Sect. 7.6.3. 320

Chapter 11

Judicial Protection in International and EU Law Martin Böse

Comparative analysis has shown that the right to an effective legal remedy is a common feature of the examined criminal justice systems. To a wide extent, the mechanisms of judicial protection are construed by analogy with the corresponding rules in domestic criminal proceedings, thereby extending existing loopholes to transnational proceedings. Instead of addressing the vulnerability of individuals in this particular transnational setting, the states tend to limit judicial protection in international cooperation in criminal matters by the principle of trust in and respect for the sovereignty of other states and the understanding that cross-border cooperation forms part of interstate relations that do not affect the rights of individuals as such.1 The comparative analysis has already revealed that this traditional understanding does not reflect recent developments in international and European human rights standards. This chapter shall, therefore, analyse and explore the international and EU rules on judicial protection in transnational criminal proceedings. To this end, the first subsection will give a brief overview on the relevant provisions of the European Convention on Human Rights (ECHR), the corresponding guarantees in the EU Charter of Fundamental Rights (EU-CFR) and EU legislation on the law of criminal procedure. On this basis, the second part will elaborate on judicial protection in transnational proceedings in the light of human rights standards and EU legislation and the principle of mutual recognition in particular.

1

Meyer (2020), § 44 para. 3.

M. Böse (*) University of Bonn, Bonn, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_11

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Judicial Protection and Fundamental Rights

In criminal proceedings, there are two mechanisms to provide judicial protection of individual rights: judicial review and judicial authorisation. Judicial review is granted in the framework of proceedings initiated by an individual challenging the legality of a measure interfering with the rights of the appellant. In most cases, it is the defendant who will apply for judicial review, but the measure may also affect individual rights of third parties (e.g. the seizure of documents) or the rights of the victim (e.g. the decision to drop a case or to close the investigation). Judicial authorisation may be required for arrest and detention or investigative measures seriously interfering with individual rights (e.g. search or surveillance measures). Prior authorisation by a court or another judicial authority shall ensure that the person concerned will not be subject to illegitimate or disproportionate measures where legal remedies are not yet available. As a procedural safeguard, the latter supplements but does not substitute the right to challenge the measure and to be heard before a court (judicial review). On the other hand, judicial authorisation may also cover a mechanism where the final decision (e.g. a granting decision on a foreign request) must be taken by a court after a contradictory procedure; in this case, court authorisation is equivalent to a judicial remedy. In short, judicial review provides for judicial protection ex post, whereas judicial authorisation ensures judicial protection ex ante. Both mechanisms form part of the guarantees of the ECHR (Sect. 11.1.1) and the corresponding standards under EU law (Sect. 11.1.2).

11.1.1 ECHR In the ECHR, judicial protection is first and foremost guaranteed by the right to a legal remedy. According to Art. 13 ECHR, everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. In order to invoke this right, the appellant must have an arguable claim to be the victim of a violation of one of the rights enshrined in the Convention.2 Thus, the scope of Art. 13 ECHR does not cover any individual right but is an ancillary right to the substantive guarantees of the Convention.3 Even though Art. 13 ECHR applies ‘notwithstanding that the violation has been committed by persons acting in an official capacity’, the alleged violation must be attributable to a state party.4 A violation of a right under the Convention, however, may be established

2 ECtHR, judgment of 16 December 1997, Application no. 21353/93 (Camenzind v. Switzerland), para. 53. 3 Grabenwarter (2014), Art. 13 paras. 2, 12. 4 Grabenwarter (2014), Art. 13 paras. 10, 21.

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where a state fails to fulfil its positive obligations, namely its duty to protect against intrusive acts by private persons.5 The individual whose right has been interfered with has a right to an effective remedy before a national authority. The reviewing authority may be a court as well as any other judicial or non-judicial authority; in the latter case, the effectiveness of the remedy requires a minimum standard of independence and impartiality.6 A complaint to the superior office of the prosecution service does not meet these requirements because it lies within the discretion of the superior whether to take up the matter and to repeal the decision.7 If a violation of Art. 3 ECHR is at stake, the individual must be granted a remedy before a judicial body.8 In order to fulfil their obligation under Art. 13 ECHR, states parties may provide for preventive and/or compensatory remedies. In this regard, states parties enjoy a margin of appreciation and, if appropriate, may provide for compensatory remedies only (e.g. for violations of the right to a trial within reasonable time, Art. 6 ECHR).9 In serious cases, however, mere compensation is not sufficient, and the individual must be provided with a remedy to repel the imminent or ongoing violation of his or her rights. This applies in particular to the decision to surrender a person to a country where he or she would be exposed to the risk of torture (Art. 3 ECHR); in this case, a remedy must be available before the person is surrendered because the execution of the granting decision would have irreversible consequences.10 For similar reasons, in cases involving Art. 3 ECHR, the remedy must have automatic suspense effect, whereas an alleged violation of Art. 8 ECHR does not require such a mechanism.11 As far as the right to liberty is concerned, the Convention provides for special guarantees on the right to a preventive remedy against (Art. 5 para. 4 ECHR) and compensation for unlawful arrest and detention (Art. 5 para. 5 ECHR). Thus, both preventive and compensatory remedies are mandatory. In contrast to Art. 13 ECHR, Art. 5 para. 4 ECHR requires a court to assess the lawfulness of the deprivation of liberty and, if necessary, to order the release of the detainee. Accordingly, the court and the proceedings must meet the requirements set out in Art. 6 ECHR (independent and impartial tribunal established by law, fair trial, equality of arms).12 In addition, Art. 5 para. 4 ECHR establishes a right to a speedy court decision. The 5

Breuer (2015), Art. 13 para. 21. ECtHR, judgment of 25 March 1983, Application no. 5947/72 (Silver and other v. United Kingdom), para. 116; Grabenwarter (2014), Art. 13 para. 14. 7 ECtHR, judgment of 27 January 2005, Application no. 55057/00 (Sidjimov v. Bulgaria), para. 41. 8 ECtHR (Grand Chamber), judgment of 4 July 2006, Application no. 59450/00, (Ramirez Sanchez v. France), para. 165. 9 ECtHR, judgment of 29 March 2006, Application no. 36183/97 (Scordino v. Italy No. 1), para. 187. 10 ECtHR, judgment of 5 February 2002, Application no. 51564/99 (Conka v. Belgium), para. 79. 11 ECtHR (Grand Chamber), judgment of 13 December 2012, Application no. 22689/07 (De Souza Ribeiro v. France), paras. 82, 83; for extradition see ECtHR, judgment of 5 July 2016, Application no. 29094/09 (A.M. v. the Netherlands), para. 66. 12 Grabenwarter (2014), Art. 5 paras. 40, 41, with further references. 6

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standard is stricter than the corresponding requirement in Art. 6 para. 1 ECHR— ‘within a reasonable time’—because the matter is particularly urgent where the detained person’s liberty is at stake.13 Apart from a legal remedy against unlawful detention, Art. 5 ECHR provides for judicial protection ex officio: if a suspect is arrested for the purpose of criminal proceedings, he or she shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and to review the decision to deprive him/her of his/her liberty (Art. 5 para. 3 ECHR). In contrast to Art. 5 para. 4 ECHR, the review is automatic and does not depend upon the application of the detained person; thereby, the mechanism shall protect in particular persons incapable of lodging an application for review.14 The detainee must be heard in person by a judge or judicial officer that is independent from the executive and that has the power to make a binding order to release the detained person if detention is found to be not justified.15 According to the case law of the European Court of Human Rights, a public prosecutor being in charge of investigating a crime and prosecuting the suspect is not independent from the parties and does not qualify for an impartial review of detention.16 The hearing before the judge or judicial officer shall take place ‘promptly’, i.e. no later than four days after the arrest;17 recent case law may suggest a stricter time limit (48 h).18 Longer periods of detention without a hearing before a judge may be justified in exceptional cases, e.g. where the person has been arrested on the high seas; in this case, however, the detained person must be brought before a judge immediately after reaching the shore.19 The rationale of the guarantee supports the view that the state has to take appropriate measures to ensure effective judicial protection by other means (e.g. by a hearing via a videoconference).20 The guarantee on respect for private life, home and correspondence (Art. 8 ECHR) does not expressly provide for procedural safeguards and judicial control. According to the case law of the European Court of Human Rights, a search of private homes does not strictly require prior judicial authorisation but must be

13

ECtHR, judgment of 7 June 2011, Application no. 277/05 (S.T.S. v. the Netherlands), para. 48. ECtHR, judgment of 18 March 2008, Application no. 11036/03 (Ladent v. Poland), para. 74. 15 ECtHR (Grand Chamber), judgment of 25 March 1999, Application no. 31195/96 (Nikolova v. Bulgaria), para. 49. 16 European Commission of Human Rights, report of 15 July 1983, Application no. 8582/79 (Skoogström v. Sweden), paras. 77–79; ECtHR, judgment of 28 October 1998, Application no. 24760/94 (Assenov v. Bulgaria), paras. 146, 149; judgment of 23 November 2010, Application no. 37104/06 (Moulin v. France), para. 57; see also ECtHR, judgment of 4 December 1979, Application no. 7710/76 (Schiesser v. Switzerland), para. 34. 17 ECtHR, judgment of 3 October 2006, Application no. 543/04 (McKay v. United Kingdom), para. 33. 18 Grabenwarter (2014), Art. 5 para. 32; Meyer (2015), Art. 5 para. 216, with further references. 19 ECtHR, judgment of 27 June 2013, Application no. 62736/09 (Vassis v. France), para. 60. 20 Meyer (2015), Art. 5 para. 221. 14

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accompanied by adequate and effective safeguards against abuse.21 Intrusive investigative measures require effective control that may be exercised by a non-judicial authority. However, it is at least desirable to entrust oversight over particularly intrusive measures to a court that offers the best guarantees for independence, impartiality and a proper procedure.22 In particular, prior court authorisation may turn out necessary where the measure may have irreversible consequences and judicial review ex post is not sufficiently effective; for instance, judicial review ex post cannot restore the confidentiality of journalistic sources or the legal professional privilege once the protected information is disclosed.23 In any case, the absence of a prior judicial warrant (judicial authorisation ex ante) must be counterbalanced by the availability of ex post judicial review of the investigative measure.24 Mere supervision by executive organs (e.g. the Ministry of Justice or the Ministry of Home Affairs) does not provide adequate and effective protection.25

11.1.2 EU Law EU Member States such as Germany are also bound by human rights standards established by EU law. First and foremost, these standards are set out in the Charter of Fundamental Rights. The Charter, however, only applies to the Member States insofar as they are implementing EU law (Art. 51 para. 1 EU-CFR). As far as cooperation in criminal matters between Member States is based on new EU instruments implementing the principle of mutual recognition, this requirement is met.26 To some extent, the Union has also entered into international agreements with third states (USA,27 Japan28) so

21

ECtHR, judgment of 16 December 1997, Application no. 21353/93 (Camenzind v. Switzerland), para. 45; judgment of 15 October 2013, Application no. 34529/10 (Gutsanovi v. Bulgaria), para. 220. 22 ECtHR, judgment of 12 January 2016, Application no. 37138/14 (Szabó and Vissy v. Hungary), para. 77. 23 ECtHR, ibid., referring to judgment of 22 November 2012, Application no. 39315/06 (Telegraaf Media Nederland v. the Netherlands), paras. 100, 101 (media), and judgment of 25 March 1998, Application no. 23224/94 (Kopp v. Switzerland), para. 74 (legal professional privilege). 24 ECtHR, judgment of 7 June 2007, Application no. 71362/01 (Smirnov v. Russia), para. 45; judgment of 15 October 2013, Application no. 34529/10 (Gutsanovi v. Bulgaria), para. 225. 25 ECtHR, judgment of 12 January 2016, Application no. 37138/14 (Szabó and Vissy v. Hungary), paras. 77, 83. 26 CJEU, judgment of 29 January 2013, Case C-396/11 (Radu), paras. 32 ff.; judgment of 26 February 2013, Case C-399/11 (Melloni), paras. 48 ff.; Allegrezza (2018), pp. 103 f. 27 Agreement on extradition between the European Union and the United States of America of 25 June 2003, O.J. 2003 L 181/27. 28 Agreement between the European Union and Japan on mutual legal assistance in criminal matters of 15 December 2009, O.J. 2010 L 39/20.

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that cooperation based on such agreements will also ‘implement’ EU law.29 In contrast, Member States are not implementing EU law when cooperating with a third state, merely relying on any other multi- or bilateral treaty (or national legislation). However, as the term ‘implementing’ must be construed in a wide manner that extends to any measure of a Member State acting ‘within the scope of EU law’,30 the application of the Charter is also triggered by fundamental freedoms such as the right to free movement (Art. 21 TFEU) and the principle of non-discrimination (Art. 18 TFEU). The Court of Justice has recently confirmed this interpretation in Petruhhin, stating that an Estonian citizen who had been arrested in Latvia on the basis of a Russian request for extradition could invoke the rights guaranteed by the EU-CFR because the extradition to a third state (Russia) interfered with his rights under Arts. 18, 21 TFEU.31 As a consequence, the requested Member State must not extradite a person to a third state if that person would be exposed to the risk of being subjected to the death penalty, torture or other inhuman treatment (Art. 19 para. 2 EU-CFR).32 Furthermore, the Charter will apply, too, as far as criminal proceedings in the issuing Member State are conducted according to procedural law implementing EU legislation on procedural rights.33 Admittedly, there may still be cases where cooperation between a Member State and a third country will not at all involve any EU law (e.g. extradition of own nationals to a third state). However, since the Charter at least applies to a significant part of cooperation with third states, Member States should shape the general cooperation framework in a manner that is compatible with the Charter. Like Art. 13 ECHR, the Charter provides for a right to an effective remedy (Art. 47 para. 1 EU-CFR). According to Art. 51 CFR, the guarantee of the Charter is based upon the corresponding right under Art. 13 ECHR.34 The right can be invoked by anyone whose rights and freedoms guaranteed by EU law are (potentially35) violated, be it a breach of the Charter or a violation of any other right under EU legislation.36 Incorporating pre-existing case law of the Court of Justice,37 Art. 47 EU-CFR goes beyond Art. 13 ECHR and provides for a right to an effective

29

CJEU, judgment of 10 April 2018, Case C-191/16 (Pisciotti), paras. 31–32, 35; see also CJEU, judgment of 2 April 2020, Case C-897/19 (IN), paras. 63–64, on the Agreement on the European Economic Area. 30 Explanations relating to Art. 51 EU-CFR, O.J. 2007 C 303/17 (32). 31 CJEU, judgment of 6 September 2016, Case C-182/15 (Petruhhin), para. 52; see also CJEU, judgment of 10 April 2018, Case C-191/16 (Pisciotti), paras. 33, 35. 32 CJEU, judgment of 6 September 2016, Case C-182/15 (Petruhhin), paras. 55 ff.; judgment of 2 April 2020, Case C-897/19 (IN), paras. 64 ff. 33 Allegrezza (2018), pp. 104 ff. (also with regard to the investigation and prosecution of harmonised offences). 34 Explanations relating to Art. 51 EU-CFR, O.J. 2007 C 303/17 (29). 35 The case-law of the ECtHR on the requirement of an “arguable claim” (above Sect. 11.1) applies accordingly, see Hofmann (2014), paras. 47.55. 36 Allegrezza (2018), p. 100. 37 CJEU, judgment of 15 May 1986, Case 222/86 (Johnston), para. 18.

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remedy before a tribunal; i.e., review by any other judicial or non-judicial authority is not sufficient.38 The term ‘tribunal’ has an autonomous meaning and corresponds to the notion of ‘court or tribunal’ in Art. 267 TFEU.39 Whether or not an authority qualifies as court or tribunal depends upon a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.40 According to these criteria, an examining magistrate ( juge d’instruction) is to be considered as a court41 whereas a public prosecutor does not meet these requirements.42 In addition, the tribunal and the hearing must comply with the requirements under Art. 47 para. 2 EU-CFR (fair and public hearing within reasonable time by an independent and impartial tribunal established by law). The right to a legal remedy is closely linked to the effet utile as the effective judicial protection of individual rights comes along with the effective application of EU law throughout the Union.43 The ancillary nature of legal remedies and their function for the enforcement of EU law are reflected in recent legislative acts on minimum standards of procedural rights in criminal proceedings that explicitly provide for a right to an effective remedy.44 The general right to judicial review (Art. 47 para. 1 EU-CFR) is supplemented by procedural safeguards that can be derived from other guarantees such as the right to liberty (Art. 6 EU-CFR) and the right to private life (Art.7 EU-CFR). Unlike Art. 5 ECHR, Art. 6 EU-CFR does not expressly provide for guarantees on judicial protection, but it follows from Art. 52 para. 3 EU-CFR that the guarantees under the Charter should be interpreted in consistency with the minimum standards set forth in Art. 5 ECHR.45 Therefore, the rules on judicial review enshrined in Art. 5 para. 3 and 4 ECHR apply accordingly.46 Similarly, the guarantees under Art. 7 EU-CFR shall

38

Explanations relating to Art. 51 EU-CFR, O.J. 2007 C 303/17 (29). Hofmann (2014), para. 47.52. 40 CJEU, judgment of 17 September 1997, Case C-54/96 (Dorsch Consult), para. 23. 41 CJEU, judgment of 15 January 2004, Case C-235/02 (Saetti and Frediani), para. 23. 42 CJEU, judgment of 12 December 1996, Case C-74/95 (X), paras. 19, 20; see also Allegrezza (2018), pp. 110 f. 43 Hofmann 2014, para. 47.56, referring to CJEU, judgment of 19 June 1990, Case C-213/89 (Factortame), paras. 19, 20. 44 Art. 12 Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, O.J. 2013 L 294/1; Art. 10 Directive 2016/343/EU of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, O.J. 2016 L 65/1; see the analysis by Covolo (2018), pp. 86 f. 45 CJEU, judgment of 15 March 2017, C-528/15 (Al Chodor), para. 37; judgment of 14 September 2017, C-18/16 (K.), para. 50; judgment of 12 February 2019, Case C-492/18 PPU (TC), para. 57. 46 Covolo (2018), p. 91. 39

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have the same meaning and scope as those developed in Art. 8 ECHR.47 Art. 7 EU-CFR does not require ex ante judicial authorisation of investigative measures but calls for effective judicial review ex post as a minimum standard.48 As far as the search of private homes is concerned, EU legislation on the enforcement of competition law expressly requires court authorisation.49 In any case, the person concerned must have the opportunity to challenge the investigative measure before a court; the right to an effective remedy is satisfied if the trial court has to assess whether the evidence has been obtained and used in accordance with EU law.50 In sum, the right to an effective legal remedy (Art. 13 ECHR, Art. 47 EU-CFR) is supplemented by specific safeguards (Art. 5 and 8 ECHR, Art. 6, 7 EU-CFR) that establish a minimum level of judicial protection in criminal proceedings and, therefore, may serve as a baseline for the emerging standards in transnational criminal proceedings.

11.2

Transnational Criminal Proceedings

The scope and content of judicial protection crucially depend upon individual rights to be protected. In particular, the right to an effective remedy is ancillary to the substantive individual rights and freedoms and the state’s obligation to respect these rights. As a consequence, a state must only provide for legal remedies against acts or omissions that (potentially) trigger its liability for human rights violations. In the framework of international cooperation in criminal matters, the scope of judicial protection, therefore, depends upon the division of tasks and responsibilities between the cooperating states. Judicial protection in each state is accessory to its responsibility: it shall ensure that a state lives up to its obligations and, if not, is held accountable for human rights violations. The right to judicial review can neither create nor extend the state’s responsibility to respect and to protect fundamental rights. The following part shall therefore first analyse the responsibilities of the cooperating states (Sect. 11.2.1) before further elaborating on judicial protection in the requesting (Sect. 11.2.2) and the requested (Sect. 11.2.3) states.

47

CJEU, judgment of 26 March 2019, Case C-129/18 (SM), para. 65, with further references. CJEU, judgment of 17 December 2015, Case C-419/14 (WebMindLicenses), paras. 77, 78. 49 Art. 21 para. 3 Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, O.J. 2003 L 1/1. 50 CJEU, judgment of 17 December 2015, Case C-419/14 (WebMindLicenses), paras. 87 ff. 48

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11.2.1 State Responsibility in Transnational Criminal Proceedings Transnational criminal proceedings are based upon the applicable framework of international cooperation in criminal matters. In this framework, each state party to the ECHR has to fulfil the obligation to respect the rights and freedoms guaranteed by the Convention ‘within its jurisdiction’ (Art. 1 ECHR). Thus, the exercise of jurisdiction is a necessary condition for a state party’s responsibility for acts or omissions violating one of the Convention’s guarantees.51 In contrast, human rights violations committed by officials of another state cannot, as such, engage a state party’s liability for human rights violations. Therefore, the acts and responsibilities of the requesting state must be strictly distinguished from the acts and responsibilities of the requested state (Trennungsprinzip52). The states parties’ responsibility for human rights violations is further determined by the division of labour in the framework of international cooperation in criminal matters (international-arbeitsteilige Strafverfolgung53). In its recent case law on extradition proceedings, the European Court of Human Rights has relied on this rationale and held that by ordering detention on remand and lodging a request for extradition, the requesting state was responsible for ensuring that the detention order complied with the requirements of Art. 5 ECHR: even though the wanted person was arrested and detained by the authorities of the requested state, the responsibility for the lawfulness of the detention order and the issuing of an international arrest warrant lay solely with the requesting state because arrest and detention had been carried out by the authorities of the requested state in response to international obligations and, thus, had to be attributed to the requesting state.54 On the other hand, the requesting state was not held to be liable for detention conditions in the requested state.55 The obligation of the requesting state to respect human rights, however, does not relieve the requested state from its responsibility to ensure that its decision to grant the request will not result in human rights violations in the requesting state. Since the landmark decision in Soering, it has been a well-established case law of the European Court of Human Rights that the requested state must not extradite a person facing a real risk of exposure to inhuman or degrading treatment or punishment in the requesting state.56 Thereby, the Court established the requested state’s indirect 51 ECtHR (Grand Chamber), judgment of 8 July 2004, Application no. 48787/99 (Ilaşcu and Others v. Moldova and Russia), para. 311. 52 Meyer (2015), Art. 1 para. 20. 53 Schomburg et al. (2020), Introduction paras. 145 ff. 54 ECtHR, judgment of 21 April 2009 Application no. 11956/07 (Stephens v. Malta), para. 52; judgment of 2 May 2017, Application no. 15944/11 (Vasiliciuc v. Moldova), paras. 23 f. 55 ECtHR, decision of 3 April 2007, Application no. 29453/02 (Collmann v. Germany), para. 1. 56 ECtHR, judgment of 7 July 1989, Application no. 14038/88 (Soering v. United Kingdom), para. 111; see also Grabenwarter (2014), Art. 3 paras. 13 ff., with further references.

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responsibility for a violation of Art. 3 ECHR that, notwithstanding the responsibility of the requesting state, would be a direct consequence of the act to be taken by the requested state (extradition).57 In Soering, the Court relied on Art. 3 ECHR and held that the conditions under which a death penalty were to be executed (death row phenomenon) would be in breach of the prohibition of inhuman treatment.58 More recent case law qualifies the death penalty per se as a violation of the right to life (Art. 2 ECHR).59 Accordingly, Art. 2 ECHR prohibits the extradition of a suspect to another state where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty in the requesting state.60 Similarly, extradition must not be granted to a state where the person to be surrendered would face the risk of an irreducible life sentence without parole because such punishment would be in breach of Art. 3 ECHR.61 The concept of indirect responsibility is not limited to Arts. 2 and 3 ECHR but may apply to other guarantees as well, in particular where the person to be extradited has suffered or risks suffering a flagrant denial of a fair trial (Art. 6 ECHR).62 In contrast to Art. 2 and Art. 3 ECHR, Art. 6 ECHR prohibits extradition only where the breach of the right to a fair trial is tantamount to a nullification or destruction of the very essence of the right guaranteed by Art. 6 ECHR, such as a conviction in absentia with no subsequent possibility of a fresh determination of the merits of the charge; a trial that is summary in nature and conducted with a total disregard for the rights of the defence; detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed; deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country; or the use in criminal proceedings of statements obtained as a result of torture of the accused or a third person.63 In its case law on the right to liberty (Art. 5 ECHR), the Court of Human Rights followed a similar approach and held that a state could be liable for a violation of Art. 5 ECHR if its authorities removed a person to another state where he was at real risk of a flagrant breach of that guarantee. With regard to Art. 6 ECHR, a flagrant breach

57

ECtHR, ibid., para. 91. ECtHR, ibid., paras. 100 ff. 59 ECtHR, judgment of 29 October 2015, Application no. 44095/14 (A.L. [X.W.] v. Russia), para. 64. 60 ECtHR, judgment of 24 July 2014, Application no. 28761/11 (Al Nashiri v. Poland), para. 576. 61 ECtHR, judgment of 4 September 2014, Application no. 140/10 (Trabelsi v. Belgium), para. 138. 62 ECtHR (Grand Chamber), judgment of 4 February 2005, Application no. 46827/99 and 46951/99 (Mamatkulov and Askarov v. Turkey), paras. 88 ff.; judgment of 15 June 2017, Application no. 71537/14 (Harkins v. United Kingdom), paras. 62 ff.; ECtHR, judgment of 7 July 1989, Application no. 14038/88 (Soering v. United Kingdom), para. 113; judgment of 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom), paras. 258 ff., 285; judgment of 9 July 2019, Application no. 3598/10 (Kislov v. Russia), paras. 77, 105 ff. 63 ECtHR (Grand Chamber), judgment of 15 June 2017, Application no. 71537/14 (Harkins v. United Kingdom), paras. 63 f.; ECtHR, judgment of 17 January 2012, Application no. 8139/ 09 (Othman [Abu Qatada v. United Kingdom), paras. 259 f. 58

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requires a high threshold (e.g. arbitrary detention for many years without any intention of bringing the detained person to trial, imprisonment after having previously been convicted after a flagrantly unfair trial or so-called extraordinary renditions).64 The Court, however, emphasised that an extradition decision will raise issues under Art. 5 and Art. 6 ECHR in exceptional cases only where a ‘real risk’ of a serious human rights violation can be established.65 In contrast, an unlawful arrest warrant issued in the requesting state constituting a breach of Art. 5 ECHR cannot trigger the liability of the requested state as the latter’s authorities could not be expected to note the illegality of the act under the law of the requesting state and, therefore, should be able to presume the validity of the warrant.66 As far as Art. 8 ECHR is concerned, indirect responsibility for a ‘flagrant breach’ of this guarantee should be construed accordingly.67 However, indirect responsibility for breaches of Art. 8 ECHR must be distinguished from direct interference with a person’s private life and/or family life resulting from extradition or expulsion.68 Even though Art. 8 ECHR does not grant a right to entry and residence, the decision to expel a person from a state’s territory and, thereby, to remove him or her from his/her family and social environment must be necessary and proportionate to the legitimate aim pursued. In the proportionality assessment, the following criteria should be taken into account: the nature and seriousness of the offence committed by the expelled person; social, cultural and family ties with the host country and with the country of destination; and the expelled person’s family situation, such as the length of marriage or the age of children.69 In extradition cases, these criteria apply accordingly (see also the corresponding discussion on the proportionality of the execution of European arrest warrants infra in this subsection).70 The (albeit limited) responsibility of the requested state is reflected in human rights clauses in international treaties (referring to the prohibition of torture, the right to a fair trial) that resolve potential conflicts between cooperation duties (e.g. extradition obligations) and human rights standards by giving priority to the

64

ECtHR (Grand Chamber), judgment of 13 December 2012, Application no. 39630/09 (El-Masri v. Former Yugoslav Republic of Macedonia), para. 239; ECtHR, judgment of 17 January 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom), para. 233. 65 See also with regard to Art. 3 ECHR: Meyer (2015), Art. 2 para. 32, Art. 3 para. 93. 66 ECtHR, judgment of 21 April 2009 Application no. 11956/07 (Stephens v. Malta), para. 52; judgment of 2 May 2017, Application no. 15944/11 (Vasiliciuc v. Moldova), para. 24. 67 See ECtHR (Grand Chamber), judgment of 13 December 2012, Application no. 39630/09 (El-Masri v. Former Yugoslav Republic of Macedonia), paras. 248 f. 68 ECtHR, judgment of 9 October 2003, Application no. 48321/99 (Slivenko v. Latvia), paras. 93 f. 69 ECtHR (Grand Chamber), judgment of 18 October 2006, Application no. 46410/99 (Üner v. Switzerland), paras. 57 f.; ECtHR, judgment of 2 August 2001, Application no. 54273/00 (Boultif v. Switzerland), para. 48. 70 Esser (2012), Art. 8 para. 129; Meyer (2015), Art. 8 para. 252.

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latter.71 The legitimate interest in the functioning of international cooperation in criminal matters notwithstanding, the concept of indirect responsibility rightly asserts that a state party’s liability for a human rights violation is not exclusive but – at least with regard to serious breaches of the Convention—may trigger the indirect liability of another state for a human rights violation that has resulted from its own action. As the international cooperation framework confirms and further determines the joint responsibility of the requesting and the requested states, the same might hold true for EU cooperation instruments. This is particularly relevant because the legislative acts implementing the principle of mutual recognition are based upon a strict division of tasks and responsibilities between the issuing Member State (formerly the requesting state) and the executing Member State (formerly the requested state). The cooperation relies on mutual trust that the other Member States’ criminal justice systems meet European human rights standards. Accordingly, the executing Member State shall not assess whether the proceedings in the issuing Member State comply with these standards but shall recognise and execute the issued decision (e.g. a European arrest warrant) unless EU law provides for a ground for refusal.72 However, as the Court of Justice has clarified in Aranyosi and Caldararu, this obligation and the principle of mutual recognition do not have the effect of relieving the executing Member State from its obligation to respect fundamental rights such as the prohibition of inhuman or degrading treatment (Art. 4 EU-CFR). The obligation to execute a European arrest warrant is suspended if the executing authority has established systemic deficiencies of the detention conditions prevailing in the issuing Member State (general assessment) and that, due to these deficiencies, the person to be surrendered will be exposed to a real risk of inhuman or degrading treatment (individual assessment).73 In LM, the Court has extended this approach to the right of access to an independent and impartial tribunal (Art. 47 para. 2 EU-CFR).74 Despite its similarity to the case law of the Court of Human Rights on extradition obstacles and the requested state’s indirect responsibility for human rights violations occurring in the requesting state, the approach of the Court of Justice limits the responsibility of the executing (requested) Member State to human rights violations originating from systemic (or general) deficiencies in the issuing (requesting) Member State. The different approaches might give rise to a conflict of obligations under EU law on the one hand and under the ECHR on the other.75 According to the

71 Art. 3 f) UN Model Treaty on Extradition, General Assembly resolution 45/116 of 14 December 1990; see also Art. 3 g) (judgments rendered in absentia), Art. 4 d) (death penalty) and h) (humanitarian considerations in view of age, health or other personal circumstances). 72 CJEU (Grand Chamber), judgment of 26 February 2013, Case C-399/11 (Melloni), para. 38. 73 CJEU (Grand Chamber), judgment of 5 April 2016, Case C-404/15 (Aranyosi and Caldararu), paras. 83 ff. 74 CJEU (Grand Chamber), judgment of 25 July 2018, Case C-216/18 PPU (LM), paras. 60 ff. 75 Burchard (2020), § 14 para. 36.

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Bosphorus doctrine, the Member States are presumed to comply with their obligations under the ECHR if they merely implement their obligations under EU law and EU law provides for equivalent protection of fundamental rights.76 However, as the Strasbourg Court has stressed in Pirozzi, this presumption can be rebutted if, in the circumstances of the case, the protection of the rights guaranteed by the Convention is manifestly deficient, in particular where the person to be surrendered on the basis of a European arrest warrant would be exposed to the risk of a flagrant denial of justice (Art. 6 ECHR).77 On the other hand, it must be noted that the restrictive approach of the Court of Justice is based upon the exhaustive character of the list of refusal grounds in the Framework Decision on the European arrest warrant (FD EAW).78 This argument is no longer valid for cooperation instruments, such as the European investigation order (EIO), that expressly provide for a general human rights clause that allows the executing authority not to execute a European arrest warrant if there are substantial grounds to believe that the execution of the investigative measure indicated in the European investigation order79 would be incompatible with the executing state’s obligations in accordance with Art. 6 TEU and the Charter (Art. 10 para. 1 lit. f of the Directive on the European investigation order). Moreover, the list of exceptions to the obligation to recognise and execute the order (whether or not including a European ordre public clause) clearly reveals the responsibility of the executing Member State for human rights violations resulting from a misapplication of one of the grounds for refusal. In EU law, the scope of the right to an effective remedy (Art. 47 para. 1 EU-CFR) is not limited to fundamental rights but applies to any individual right under EU law (supra Sect. 11.1.2), including guarantees incorporated in refusal grounds in legislation on new cooperation instruments aiming at the protection of individual rights.80 When applying these refusal grounds, Member States have to respect the fundamental rights of the individual. In the light of the right to private and family life (Art. 8 ECHR, Art. 7 EU-CFR), the execution of a European arrest warrant for the purpose of enforcing a custodial sentence might be disproportionate where the person to be surrendered is socially integrated and has a legitimate interest to serve his or her sentence in the executing Member State (Art. 4 no. 6 FD EAW).81 But even where no express ground for refusal applies, judicial authorities of the executing Member State have asserted a competence to evaluate the proportionality of a European arrest 76

ECtHR (Grand Chamber), judgment of 30 June 2005, Application no. 45036/98 (Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland), paras. 155 f. 77 ECtHR, judgment of 17 April 2018, Application no. 21055/11 (Pirozzi v. Belgium), paras. 57, 62 f. 78 CJEU (Grand Chamber), judgment of 5 April 2016, Case C-404/15 (Aranyosi and Caldaru), para. 80. 79 Directive 2014/41/EU of 3 April 2014 on the European investigation order in criminal matters, O.J. 2014 L 130/1. 80 See e.g. Art. 3 no. 1 (amnesty), no. 2 (ne bis in idem), no. 3 (protection of minors). 81 Cour de Cassation, judgment of 12 April 2016, N 16-82175.

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warrant and to refuse surrender, for instance, if, in the light of Art. 49 para. 3 EU-CFR, the sentence sought by the issuing Member State is ‘intolerably severe’.82 According to the Handbook on the European Arrest Warrant, however, the proportionality assessment is a matter for the issuing state, and an evaluation by the executing Member State is limited to exceptional circumstances where the European arrest warrant raises serious concerns on its proportionality.83 To this extent, the proportionality principle forms part of the European ordre public reservation aiming at maintaining minimum human rights standards. The concept of indirect responsibility for human rights violations is not limited to the requested state. By its request, the requesting state triggers the measure to be taken by the requested state (e.g. arrest and detention). If arrest and detention in the requested state are based upon an illegal decision issued by a court of the requesting state, the responsibility for the violation of the right to liberty (Art. 5 ECHR) lies with the requesting state.84 As far as mutual legal assistance is concerned, the requesting state must also ensure that the investigative measures carried out by the requested state will not render domestic criminal proceedings unfair (Art. 6 ECHR). The European Court of Human Rights has elaborated this obligation in Stojkovic , where French authorities requested Mr Stojkovic to be interrogated by Belgian authorities as ‘témoin assisté’, i.e. a witness to be assisted by a lawyer.85 Although Mr Stojkovic had requested assistance by a lawyer, no lawyer was appointed for him when he was examined by Belgian police officers, although a French investigating judge and a French public prosecutor were present. In his statement, Mr Stojkovic admitted that he had taken part in an armed robbery. Subsequent to his surrender to the French authorities, he was convicted by a French court and was sentenced to six years’ imprisonment. The European Court of Human Rights acknowledged that the French authorities bore no responsibility for the conditions of the interrogation because they had to abide by the Belgian law of criminal procedure. However, being present during the interrogation, they had to ensure that procedural rights enshrined in Art. 6 ECHR, the right to a lawyer, in particular, were respected and thus to verify the fairness of the proceedings under their supervision.86 The obligation of the requesting state to ensure that the right to a fair trial is respected in transnational criminal proceedings is crucial for the defendant since, according to the case law of the Court, the requested state is not bound by Art. 6 ECHR as proceedings on extradition and enforcement of foreign sentences do not fall within the scope of this guarantee because such proceedings do not concern the

82 Higher Regional Court Stuttgart, decision of 25 February 2010 – no. 1 Ausl (24) 1246/09; see the comparative analysis of the implementation practice in France, Germany and the Netherlands: Böse (2013), p. 349. 83 Commission Notice of 28 September 2017, O.J. 2017 C 335/1 (14 f., 34). 84 Supra note 53. 85 ECtHR, judgment of 27 October 2011, Application no. 25303/08 (Stojkovic v. France and Belgium). 86 ECtHR, ibid., para. 55.

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determination of a criminal charge.87 The Court, however, acknowledged that this approach would be too formalistic where the transnational enforcement of a sentence was exceptionally closely connected to the criminal trial in which the sentence had been imposed.88 As the Stojkovic case illustrates, such a close connection may also arise in transnational evidence gathering or, generally speaking, in proceedings related to mutual legal assistance. Due to their functional link to criminal proceedings in the requesting state, the scope of Art. 6 ECHR should extend to mutual legal assistance proceedings in the requested state and, thereby, cover transnational criminal proceedings as a whole.89 As regards extradition, this approach has yet been followed in EU legislation on the procedural rights of the defendant as the scope of these measures extends to proceedings on the recognition and execution of European arrest warrants.90 Finally, the cooperation of states in transnational criminal proceedings is also governed by positive obligations under Art. 2 and Art. 3 ECHR. In case of particularly serious human rights violations (violent death, torture, inhuman or degrading treatment), an effective and official investigation must be conducted by the state under whose jurisdiction the violation occurred.91 This procedural obligation has a transnational dimension if relevant evidence or suspects are located within the jurisdiction of another state; in this case, the investigating state must seek the assistance of the other state, and triggered by a corresponding request, the other state must afford assistance to the investigating state. However, the procedural obligation to cooperate is an obligation of means, not one of results: a breach of the procedural obligation can only be established where the investigating state has failed to trigger the proper mechanisms for cooperation (e.g. by an extradition request) or where the requested state has failed to respond properly or has not

87

ECtHR (Grand Chamber), judgment of 4 February 2005, Application no. 46827/99 and 46951/99 (Mamatkulov and Askarov v. Turkey); ECtHR, decision of 27 June 2006, Application no. 28578/03 (Szabó v. Sweden). 88 ECtHR, judgment of 1 April 2010, Application no. 27804/05 (Buijens v. Germany), para. 42. During trial, the public prosecutor had given an assurance that the defendant, after a final conviction, would be transferred to the Netherlands for the purpose of enforcement of his sentence. 89 Gleß (2013), p. 108; Meyer (2015), Art. 6 para. 65. 90 Art. 2 para. 7, Art. 3 para. 6 Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings, O.J. 2010 L 280/1; Art. 5 Directive 2012/ 13/EU of 22 May 2012 on the right to information in criminal proceedings, O.J. 2012 L 142/1; Art. 10 Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, O.J. 2013 L 294/1; Art. 17 Directive 2016/800/EU of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, O.J. 2016 L 132/1; Art. 5 Directive 2016/1919/EU of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, O.J. 2016 L 297/1. 91 Grabenwarter (2014), Art. 2 para. 22, Art. 3 para. 8, with further references.

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been able to invoke a legitimate ground for refusing cooperation.92 If the requested state had legitimate reasons not to grant the request (e.g. the ban on extradition of own nationals), the investigating state must examine the feasibility of alternative options for prosecution (e.g. a transfer of criminal proceedings to the requested state).93 On the other hand, even though the criminal investigation conducted by the requesting state falls within the exclusive jurisdiction of that state, the procedural limb of Art. 2 (and Art. 3) ECHR imposes obligations upon the requested state, too. In Romeo Castaño, the Court specified the requested state’s obligations in a case where the right to an effective investigation conflicted with the fundamental rights of the person sought for extradition, namely the prohibition of inhuman and degrading treatment: the Court held that the risk of a violation of Art. 3 ECHR due to the detention conditions in the issuing (requesting) state constituted a legitimate ground to refuse the execution of a European arrest warrant but required the executing authority to conduct a thorough examination of the detention conditions in the issuing state in order to identify a real and individual risk of violation of the arrested person’s rights under Art. 3 ECHR. In the case at hand, the Court stated that the requested state failed to fulfil its obligation to cooperate as the refusal was not based upon sufficient facts and the executing authority did not further investigate the situation in the issuing state by asking for additional information.94 The above overview has revealed that states are subject to various negative and positive human rights obligations when they cooperate in the framework of transnational criminal proceedings. Within the scope of these obligations, the requesting and the requested state are directly or indirectly responsible for any violation of human rights. As a consequence, they are obliged to ensure adequate judicial protection of the individual and to provide effective legal remedies against such violations.

11.2.2 Judicial Protection in the Requesting (Issuing) State As far as the requesting state is responsible for decisions and measures interfering with the rights of the individual, it is responsible for granting judicial protection as well. Thereby, the division of tasks and responsibilities between the requesting and the requested states in cross-border cooperation extends to judicial control of the competent authorities and judicial review of their decisions. The requesting state may provide protection ex ante by judicial authorisation (Sect. 11.2.2.1) or ex post

92 ECtHR (Grand Chamber), judgment of 29 January 2019, Application no. 36925/07 (Güzelyurtlu v. Cyprus and Turkey), paras. 230 ff. 93 ECtHR, judgment of 13 April 2017, Application no. 10653/10 (Huseynova v. Azerbaijan), para. 111. 94 ECtHR, judgment of 9 July 2019, Application no. 8351/17 (Romeo Castaño v. Belgium), paras. 80 ff., 91.

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by legal remedies against the decision to initiate a request (Sect. 11.2.2.2) or the decision not to do so (Sect. 11.2.2.3). In its essence, this structure applies accordingly to cooperation between EU Member States and mutual recognition instruments, too. The role of the issuing state in ensuring effective judicial protection, however, has been further developed by EU law and the case law of the Court of Justice of the Union.

11.2.2.1

Judicial Authorisation

International human rights standards do not require judicial authorisation for the decision to request a foreign state for extradition, the enforcement of sentences or any other form of mutual legal assistance. Like the ECHR, the EU-CFR does not provide for such requirement either. Nevertheless, judicial authorisation is an important procedural safeguard in domestic criminal proceedings, and the European Court of Human Rights held that judicial supervision of particularly intrusive measures (e.g. secret surveillance) might be desirable in order to ensure effective protection of the fundamental rights of the person concerned because control by a judge offers the best guarantees of independence, impartiality and a proper procedure (supra Sect. 11.1.1).95 Accordingly, a request indirectly requires judicial authorisation where the decision on which the request is based and that shall be executed by the requested state (e.g. a domestic arrest or a search warrant) must be issued by a judge or court.96 However, neither the ECHR nor the case law of the Strasbourg Court strictly requires court authorisation for particularly intrusive measures in the framework of a criminal investigation.97 Thus, even indirect authorisation will mainly depend upon the requesting state’s law on domestic criminal proceedings. Moreover, the rules on domestic proceedings are per se incapable of addressing the additional burden and hardships arising from the transnational dimension of the measures to be executed (e.g. arrest and detention in a foreign country). Some criminal justice systems address this issue by requiring court authorisation for the transfer of prisoners to a foreign state for the purpose of enforcement of prison sentences; nevertheless, such mechanism is rather the exception than the rule.98 Unlike the general human rights standards, EU legislation entails a more specific mechanism of judicial authorisation where the decision to issue a mutual recognition instrument (European arrest warrant, European investigation order) must be adopted

95 ECtHR (Grand Chamber), judgment of 4 December 2015, Application no. 47143/06 (Roman Zakharov v. Russia), para. 233. 96 See the comparative analysis 10.1.2.2. 97 Meyer (2015), Art. 8 para. 144. 98 See the comparative analysis 10.1.2.2.

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(or at least validated) by a ‘judicial authority’.99 According to recent case law on the European arrest warrant issued for the purpose of prosecution, the judicial authority shall ensure effective protection of the person sought for arrest and surrender, not only in the framework of domestic proceedings (first level, national arrest warrant) but also with regard to the transnational dimension (second level, European arrest warrant).100 The second level of protection is essential for the individual because the decision to issue a European arrest warrant might result in his or her arrest in a foreign state and detention, which could significantly exceed the period of detention in domestic proceedings where the arrested person would be immediately brought before a judge (Art. 5 para. 3 ECHR, supra Sect. 11.1.1).101 According to the Court of Justice, this standard of protection required a judicial authority that is capable of exercising its supervisory tasks objectively and without being exposed to the risk that its decision might be subject to external directions or instructions from the executive.102 The public prosecutor’s offices in Germany did not fulfil this standard because they were subordinated to the states’ ministries of justice, and the decision to issue a European arrest warrant might be subject to the instructions of the minister. In contrast, the prosecutor general in Lithuania qualified as ‘judicial authority’ acting objectively and independently of the executive when issuing European arrest warrants.103 The same applied to French public prosecutors (magistrats du parquet) even though they were subject to general instructions by the Ministry of Justice and obliged to comply with the orders of their superiors within the hierarchical structure of the public prosecution service.104 Thus, according to the Court, the key feature of a judicial authority is its independence from the executive when taking its decision to issue a European arrest warrant. However, there are doubts whether mere independence from the executive warrants an adequate level of protection of the right to liberty (Art. 6 EU-CFR). As has been mentioned above, the term ‘judge or other officer authorised by law to exercise judicial power’ (Art. 5 para. 3 ECHR) requires more than organisational independence from the executive, but functional independence from the investigative and prosecutorial tasks in criminal proceedings; accordingly, the public prosecutor’s office does not warrant an impartial review (supra Sect. 11.1.1). For similar reasons, the Advocate General proposed a strict interpretation of the term ‘judicial 99

Art. 6 para. 1 Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant, O.J. 2002 L 190/1; Art. 2 c) Directive 2014/41/EU of 3 April 2014 on the European investigation order in criminal matters, O.J. 2014 L 130/1. 100 CJEU, judgment of 27 May 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 67–68; CJEU, judgment of 27 May 2019, Case C-509/18 (PF), paras. 45–46. 101 AG Campos Sánchez-Bordona, opinion of 30 April 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 57 ff. 102 CJEU, judgment of 27 May 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 67–68; CJEU, judgment of 27 May 2019, Case C-509/18 (PF), paras. 45–46. 103 CJEU, judgment of 27 May 2019, Case C-509/18 (PF), paras. 55–56. 104 CJEU, judgment of 12 December 2019, Joined Cases C-566/19 PPU and C-626/19 PPU (JR and YC), paras. 45-56; CJEU, order of 21 January 2020, Case C-819/19 PPU (MN), paras. 40–41.

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authority’, which covered judges and courts only and, thus, did not include the public prosecution service.105 Even though this approach could not be reconciled with the ordinary meaning of the term ‘judicial authority’ and its use in EU legislation106 and, thus, was rejected by the Court, the Advocate General’s line of reasoning appears quite convincing from a human rights perspective: in transnational surrender proceedings, the arrested person is deprived of the protection under the habeas corpus guarantee (Art. 5 para.3 ECHR) because due to the division of tasks and responsibilities between the issuing and the executing states, the latter will not evaluate the evidence and assess the proportionality of the detention but mainly rely on the assessment of the authority that has issued the European arrest warrant.107 As a consequence, it should be a matter for the issuing state to protect the person sought for extradition against unlawful detention by judicial control ex ante, which is exercised by judges or courts either by issuing or by validating European arrest warrants.108 Such a mechanism has been implemented in several Member States109 and should serve as a benchmark for judicial protection in transnational criminal proceedings.110 As a matter of principle, this standard of protection should not be limited to cooperation within the European Union. As far as the requested state, as in continental Europe, relies on the assessment of the requesting state and does not evaluate the evidence on its own,111 the person sought for extradition faces the same lack of judicial protection as a person to be surrendered based on a European arrest warrant. The situation might be even worse where the period of detention in the requested state is not strictly limited and, thus, may significantly exceed the detention period in proceedings on the execution of a European arrest warrant.112 Therefore, a request for extradition for the purpose of prosecution should be subject to prior court authorisation as well.

105

AG Campos Sánchez-Bordona, opinion of 30 April 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 90 ff., 100. 106 Böse (2020), 1269-1270; see also the detailed reasoning per Lord Phillips, UK Supreme Court, judgment of 30 May 2012 (Assange v. The Swedish Prosecution Service) [2012] UKSC 22, paras. 39 ff., 60 ff. 107 AG Campos Sánchez-Bordona, opinion of 30 April 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 59, 62–63. 108 See with regard to validation by courts: CJEU, judgment of 9 October 2019, Case C-489/19 PPU (NJ), paras. 46–48. 109 See the comparative analysis 10.1.2.2. 110 Albers et al. (2013), p. 365; Burchard (2020), para. 52. 111 Federal Constitutional Court of Germany (BVerfG), decision of 5 November 2003, 2 BvR 1506/ 03, (109) official court reports (BVerfGE) 38, p. 59. For the different legal tradition in common law states see Supreme Court of Canada, decision of 21 July 2006, United States of America v. Ferras, SCC 33 paras. 19 ff. 112 See in this regard, Art. 17 and 23 Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant, O.J. 2002 L 190/1; see also CJEU, judgment of 16 July 2015, Case C-237/ 15 (Lanigan); CJEU, judgment of 12 February 2019, Case C-492/18 PPU (TC).

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The situation might be different where extradition is requested for the purpose of the execution of a sentence. According to the Court of Justice, the interpretation of the term ‘judicial authority’ and the requirement of independence from the executive apply accordingly to European arrest warrants issued for the purpose of executing a judgment.113 Nevertheless, the Court held that there was no need for a review of the decision to issue a European arrest warrant that was based upon a final judgment because judicial protection had been provided by the trial that had resulted in the final conviction of the person to be surrendered.114 According to this reasoning, judicial protection ex ante by a court issuing or validating the European arrest warrant would not be required either. This approach, however, is hardly consistent with the Court’s premise that judicial protection must be provided on the domestic and the transnational level as the trial proceedings in the issuing state per se cannot protect the convicted person against effects arising from transnational enforcement.115 As the issue is raised in the framework of judicial review in the issuing state, this point shall be further discussed in that particular context (infra Sect. 11.2.2.2). So far, the discussion on the protective function of the judiciary in transnational criminal proceedings has focused on the European arrest warrant. In OG and PI, the Advocate General emphasised that the concept of ‘judicial authority’ might differ from one mutual recognition instrument (European arrest warrant) to another (European investigation order).116 This view finds support in the fact that the Directive on the European investigation order expressly refers to public prosecutors as ‘judicial authority’.117 Thus, the requirement of prior judicial authorisation cannot simply be transferred to cross-border gathering of evidence. Since the need for judicial protection ex ante in extradition and surrender proceedings arises from the intrusive nature of arrest and detention, this requirement is not to be applied accordingly to any measure aimed at the gathering of evidence but to be implemented only to investigative measures that seriously interfere with fundamental rights. This holds true for secret surveillance measures, which usually require prior authorisation by courts (first level of protection). In the framework of mutual legal assistance (or a corresponding cooperation mechanism under EU law, e.g. the European investigation order), this requirement could be extended to the transnational dimension (second level of protection). Such supplementary protection, however, will only be required as far as the execution of the measure in the requested (executing) state places an additional burden upon the person concerned in

113

CJEU, judgment of 12 December 2019, Case C-627/19 PPU (ZB), paras. 26–27. CJEU, judgment of 12 December 2019, Case C-627/19 PPU (ZB), paras. 35, 39. 115 Advocate General Campos Sánchez-Bordona, opinion of 26 November 2019, Case C-627/19 (ZB), paras. 26 ff. 116 AG Campos Sánchez-Bordona, opinion of 30 April 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), paras. 38–39. 117 Art. 2 c) Directive 2014/41/EU of 3 April 2014 on the European investigation order in criminal matters, O.J. 2014 L 130/1. 114

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comparison to the execution of the same measure in a purely domestic context. Whereas this condition is clearly met in extradition and surrender proceedings (arrest and detention in a foreign country), this can hardly be said with regard to investigative measures (e.g. search or wiretapping) whose intrusiveness does not depend upon the place of execution. However, the cross-border dimension might deprive the individual of the protection by procedural safeguards that are not foreseen by the law of the requested state (e.g. the requirement that a search of a lawyer’s office must be attended by representatives of the bar association).118 In any case, the transnational setting impairs the individual’s access to justice because judicial review in the requested state will be limited and not include the evaluation of facts and evidence on which the measure is based; like in extradition and surrender proceedings, the lack of a comprehensive remedy against the actual execution of the measure might create a need for judicial protection ex ante. Despite these similarities, judicial protection against arrest and detention on the one hand and that against surveillance measures on the other hand fundamentally differ from each other in terms of time and conditions for access to justice: in contrast to the person arrested for extradition, the person subject to surveillance will usually not be informed of the measure while it is executed as this would jeopardise the investigation. Instead, the requested state will inform the person concerned when the surveillance has been terminated, and the results shall be transmitted to the requesting state, or it will be left to the requesting state to inform the person concerned. In any case, the person will be informed of the measure ex post facto. As a consequence, judicial authorisation in the requesting state will not provide an added value with regard to the transnational dimension; in its substance, the mechanism of judicial protection corresponds to judicial protection in a purely domestic setting, i.e. judicial review ex post, combined with prior authorisation ex ante. On the other hand, a need for additional protection might arise where the requested authority executes coercive measures (e.g. search and seizure, freezing orders). The person concerned may challenge the execution of the measure before a court of the requested (executing) state, but the competent court must not assess the substantial grounds on which the decision of the requesting (issuing) authority was based.119 In this regard, the underlying rationale of entrusting the issuing of European arrest warrants to judicial authorities may be transferred to other coercive measures, and prior court authorisation in the requesting (issuing) state could compensate the limited scope of judicial review in the requested (executing) state.

118 Cf. Knytel (2019), pp. 350 f. (with regard to European investigation orders issued by French and to be executed by German authorities). On the other hand, foreign authorities cannot be expected to abide by the German provisions on the protection of the core area of private life when executing surveillance measures according to a European investigation order issued by Germany (§ 100e German Code of Criminal Procedure), e.g. to interrupt the measure when statements concerning this core area are recorded. 119 Art. 14 para. 2 Directive 2014/41/EU of 3 April 2014 on the European investigation order in criminal matters, O.J. 2014 L 130/1; Art. 33 para. 2 Regulation (EU) 2018/1805 of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders, O.J. 2018 L 303/1.

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Notwithstanding the fact that arrest and detention are more intrusive than any other coercive measure, prior court authorisation may contribute to more effective protection of individual rights in mutual legal assistance proceedings, too. Turning to the transnational enforcement of sentences, the requirement of judicial authorisation seems superfluous as the request of the sentencing state is based upon a final judgment.120 However, as extradition requests for the purpose of enforcing judgments have illustrated, the judgment focuses on the domestic rather than the transnational dimension. For instance, the convicted person may challenge the decision to transfer enforcement, claiming that the prison conditions in the executing state do not comply with Art. 3 ECHR. Unlike extradition, the transfer of prisoners is usually not requested without giving the convicted person the opportunity to submit a statement on the decision to be taken.121 Accordingly, the right to a legal remedy against the decision and to judicial review ex post will be sufficient to effectively protect the rights of the convicted person, and judicial protection ex ante by court authorisation will not be necessary because the person will not be transferred until the court has taken its final decision. Where outgoing requests require such authorisation,122 the mechanism is based upon a contradictory procedure, and the convicted person is heard before a final decision will be taken. In this respect, court authorisation is fully equivalent to a judicial remedy against the decision of the competent authority to lodge a request. The main question thus is whether and to what extent outgoing requests must be subject to judicial review—a question that will be discussed in the following subsection.

11.2.2.2

Judicial Review of the Request

According to the traditional concept of extradition and mutual legal assistance, a request is addressed to a foreign state and, thus, forms part of international relations between states. The individual has no right to challenge the request because any interference with individual rights will be due not to the request but to the decision of the requested state to grant the request and to execute the corresponding measures (arrest, detention, surrender).123 This concept, however, is not in line with the recent case law of the European Court of Human Rights according to which it is the requesting rather than the requested state that is responsible for the lawfulness of

In the framework of transnational enforcement of sentences, the term ‘requesting’ state refers to the sentencing state irrespective of whether the sentencing or the administering state files the request. 121 Art. 6 para. 3 Framework Decision 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 for the purpose of their enforcement in the European Union, O.J. 2008 L 327/27. 122 See for the corresponding requirement in Germany and Italy the comparative analysis 10.1.2.2. 123 Federal Constitutional Court of Germany (BVerfG), decision of 25 March 1981, 2 BvR 1258/79, (34) Neue Juristische Wochenschrift 1981, pp. 1154 (1156). 120

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the domestic arrest warrant (on which the extradition request is based) and the international arrest warrant (supra Sect. 11.2.1). The division of tasks and responsibilities between the requesting and the requested states also determines the scope of judicial review in both states: if the person sought for extradition cannot challenge the substantive grounds for the arrest warrant, the facts and the evidence in particular, before a court of the requested state, these grounds must be subject to judicial review by a court of the requesting state. Accordingly, the arrested person has a right to a legal remedy against the domestic arrest warrant on which the extradition request is based. Since the responsibility of the requesting state is not limited to the domestic arrest warrant but extends to the international arrest warrant (i.e. the transmission of the extradition request), the scope of judicial review must be determined accordingly. The responsibility of the requesting state for this transnational dimension and its repercussions on the scope of judicial review have been confirmed by recent case law on the European arrest warrant: referring to the two levels of judicial protection (domestic arrest warrant, European arrest warrant, supra Sect. 11.2.2.1), the Court held that where the European arrest warrant is issued by an authority other than a court, the decision to issue a European arrest warrant must be subject to judicial review by a court of the issuing state.124 Thus, it is a matter for the issuing state to ensure full judicial protection against disproportionate European arrest warrants (supra Sect. 11.2.1). To that end, Member States enjoy a margin of discretion; they can either provide for a legal remedy against the decision to issue a European arrest warrant or establish a mechanism where judicial review of the domestic arrest warrant triggers the incidental assessment of the lawfulness and proportionality of the European arrest warrant.125 Although the latter option may offer advantages in terms of procedural economy, merging reviews of the domestic and the European arrest warrant in one and the same court proceedings bears the risk of impairing judicial protection on the second (transnational) level. In a recent judgment, the Court of Justice ruled that the right to judicial review did not require a remedy against the decision to issue a European arrest warrant for the purpose of enforcing a judgment because the judicial protection had been provided by the trial court that had rendered the final verdict.126 This line of reasoning lays the sole focus on the domestic aspects (trial and conviction), without taking into account the transnational dimension (enforcement via arrest and detention in another Member State). In the eyes of the Court, a European arrest warrant for the purpose of enforcing a sentence was per se proportionate if the minimum threshold (four months’ imprisonment)

124

CJEU, judgment of 27 May 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), para. 75; judgment of 27 May 2019, Case C-509/18 (PF), para. 53. 125 CJEU, judgment of 12 December 2019, Case C-625/19 PPU (XD), paras. 43 f., 50 ff.; judgment of 12 December 2019, Joined Cases C-566/9 PPU and C-626/19 PPU (JR and YC), paras. 64 f., 68 ff. 126 CJEU, judgment of 12 December 2019, Case C-627/19 PPU (ZB), paras. 35–36.

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were met so that there was no need for judicial review.127 This premise, however, is questionable because the proportionality of the European arrest warrant depends not only upon the length of the sentence but also on other factors: arrest and detention in the executing state may have a negative impact on the convicted person’s social and family life, or the time elapsed between conviction and the decision to issue a European arrest warrant may have reduced the public interest in the enforcement of the sentence; in particular, the convicted person may have established links to the executing state that may suggest a transfer of enforcement (supra Sect. 11.2.1).128 Thus, a conviction does not inevitably result in the issuing of a European arrest warrant. Instead, the issuing authority must assess the proportionality of the European arrest warrant in each single case,129 and the convicted person, therefore, must have a right to challenge that decision before a court.130 Another controversial issue that has been raised before the Court of Justice is related to the time at which the legal remedy must be available to the person against whom the European arrest warrant has been issued. According to the Court, the right to judicial protection does not guarantee a legal remedy against the European arrest warrant before its execution; instead, it may be sufficient that the arrested person may challenge the European arrest warrant after surrender to the issuing state.131 At the same time, the Court acknowledged that it was crucial for the arrested person to be able to exercise his procedural rights even before surrender to the issuing state.132 The right to an effective legal remedy (Art. 47 EU-CFR) is an essential part of these rights, and the effectiveness of a remedy against the European arrest warrant would be considerably impaired if it could not be lodged before that warrant has been executed and the arrested person has been surrendered.133 These concerns have particular weight where the right to liberty (Art. 6 EU-CFR) is at stake (see also Art. 5 para. 3 ECHR). They are closely linked to the question whether or not the decision to issue a European arrest warrant should be subject to judicial authorisation by court (supra Sect. 11.2.2.1), and the arguments supporting a human-rightsoriented approach apply accordingly to judicial review ex post. The arrested person, thus, should be allowed to challenge the European arrest warrant in the issuing state

127

CJEU, judgment of 12 December 2019, Case C-627/19 PPU (ZB), para. 38. Opinion of AG Campos Sánchez-Bordona of 26 November 2019, Case C-627/19 PPU, paras. 26, 30, 32. 129 Commission Notice – Handbook on how to issue and execute a European arrest warrant, O.J. 2017 L 335/1 (14). 130 Opinion of AG Campos Sánchez-Bordona of 26 November 2019, Case C-627/19 PPU, paras. 29, 33. 131 CJEU, judgment of 12 December 2019, Joined Cases C-566/9 PPU and C-626/19 PPU (JR and YC), paras. 70–71. 132 CJEU, ibid., para. 72. 133 See also Opinion of AG Campos Sánchez-Bordona of 2 November 2019, Joined Cases C-566/19 PPU and C-626/19 PPU (JR and YC), para. 91. 128

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before his or her surrender to that state; wherever possible, the national law should be interpreted in conformity with this requirement.134 As a matter of principle, an outgoing request for mutual legal assistance requires the assessment that the formal and substantive requirements for the corresponding measure in domestic criminal proceedings are met. This assessment may result in a formal decision (e.g. a search warrant) that is attached to the request. As far as the law of the requesting state provides for a remedy against investigative measures in domestic criminal proceedings, these rules apply accordingly to the decision on which the request is based. But even where such remedy is available, its scope is limited to the first level of protection (domestic dimension) but does not include the second level of protection, i.e. the transnational dimension of an outgoing request for investigative measures. In EU law, the Directive on the European investigation order addresses the need for a comprehensive protection as the competent authority may issue European investigation order only if the investigative measure would be available in a comparable domestic case (Art. 6 para. 1 lit. b) and if the European investigation order conforms with the principle of proportionality (Art. 6 para. 1 lit. a). Whereas the first condition is clearly related to the domestic dimension, the reference to the proportionality principle includes the transnational dimension of the European investigation order. This transnational dimension is reflected in the Directive’s provision on judicial review that obliges Member States to ensure that legal remedies equivalent to those available in a similar domestic case are applicable to the investigative measures indicated in the EIO (Art. 14 para. 1). In Gavanozov, the Advocate General argued that this provision was based on the assumption that remedies against investigative measures were available in domestic cases and therefore precluded national legislation that did not provide for any legal remedy against domestic measures and, as a consequence, not for a legal remedy against the decision to issue a European investigation order either.135 In the eyes of the Advocate General, investigative measures requested by the issuing state might seriously interfere with fundamental rights of the defendant or third parties and, therefore, had to be subject to effective judicial review.136 If the substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing state (Art. 14 para. 2 of the Directive), it cannot be left to the issuing state whether or not to provide for such remedy. In contrast, if the issuing authority is bound by the conditions for issuing a European investigation order and its proportionality in particular (Art. 6 para. 1 lit. a of the Directive), any person affected by the order has a right to an effective legal remedy, claiming that the decision to issue the European investigation order was not in accordance with EU law (Art. 47 para. EU-CFR, supra Sect. 11.1.2). In its judgment, the Court did not discuss the Advocate General’s interpretation of the Directive’s provision on legal remedies

134

Opinion of AG Campos Sánchez-Bordona of 2 November 2019, Joined Cases C-566/19 PPU and C-626/19 PPU (JR and YC), paras. 91, 97. 135 Opinion of AG Bot of 11 April 2019, Case C-324/17 (Gavanozov), paras. 54–56, 68. 136 Ibid. paras. 56–57.

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but focused on the information to be provided by the issuing authority.137 Nevertheless, the opinion of the Advocate General is clearly based upon the same line of reasoning as the Court’s recent case law on judicial review of the decision to issue a European arrest warrant (OG and PI). The decision to issue a European investigation order, thus, should be subject to judicial review that covers both the domestic and the transnational dimensions of the requested measure. The right to an effective legal remedy does not necessarily imply that the remedy must be available once the decision has been adopted that might violate the applicant’s rights. As far as investigative measures are concerned, prior notification of the person concerned would usually jeopardise the investigation, and therefore a remedy will not be available before the measure has been carried out and the evidence has been collected. Accordingly, the right to an effective remedy is satisfied if the defendant may challenge the use of evidence during trial, claiming that it has been illegally obtained and, thereby, triggers an incidental review of whether the European investigation order violated the rights of the applicant (supra Sect. 11.1.2). The trial court, however, can only examine (potential) violations of the defendant’s rights but cannot provide for judicial protection of third parties’ rights. As far as the investigative measure requested by the European investigation order (e.g. a search order) interferes with the rights of witnesses or other third parties, the issuing state has to provide for a legal remedy that allows the affected person to challenge the decision taken by the issuing authority.138 An outgoing request for the enforcement of custodial sanctions must be subject to judicial review because the transfer of enforcement may change the conditions under which the sentence is served and thereby significantly affect the rights of the convicted person (supra Sect. 11.2.2.1). This applies in particular where the convicted person claims that the prison conditions in the executing state do not comply with international human rights standards (Art. 3 ECHR). Similar risks are unlikely to arise where the enforcement of other sanctions (confiscation, financial penalties) shall be transferred to a foreign state. Nevertheless, it cannot be excluded right from the outset that a corresponding request of the sentencing state may violate the rights of the convicted person. This can be the case where the enforcement of the judgment is time-barred under the law of the sentencing state.139 Therefore, the convicted person must be able to lodge a legal remedy against the decision to initiate a transfer of enforcement of non-custodial sanctions, too. Whether judicial review is provided by an authorisation procedure (ex ante) or by a legal remedy against the request for a transfer of enforcement (ex post) is for the national legislator to decide.

137

CJEU, judgment of 24 October 2019, Case C-324/17 (Gavanozov), paras. 25 ff., 37. Opinion of AG Bot of 11 April 2019, Case C-324/17 (Gavanozov), paras. 65–66. 139 See e.g. §§ 79 ff. German Penal Code. In this regard, the executing state will not provide judicial protection as the scope of judicial review will be limited to the assessment of whether enforcement is time-barred under domestic law (see e.g. Art. 7 para. 2 lit. c Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties of 24 February 2005, O.J. L76/16). 138

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Judicial Review of the Decision Not to Initiate a Request

At first glance, the decision not to initiate a request does not encroach upon the rights of the defendant or third parties so that a remedy against such a decision might not be required. A closer look, however, reveals that, under certain conditions, inaction may result in a violation of individual rights. First and foremost, the convicted person may have a legitimate interest in serving the sentence in his or her home country and in his/her re-integration into society. Therefore, the decision of the sentencing state not to initiate transfer proceedings must be subject to judicial review on whether the enforcement authority has exercised its discretion correctly. In Buijen v. Germany, the European Court of Human Rights held that Art. 6 para. 1 ECHR granted access to court and a right to judicial review of the decision not to initiate transfer proceedings where the public prosecutor had given assurance during trial not to oppose the defendant’s transfer to his home country.140 Admittedly, the application of Art. 6. ECHR was due to the exceptional circumstances of the case, namely the close connection between the trial (and the assurance given by the public prosecutor) and the proposed transfer of enforcement, whereas, in general, transfer proceedings fell outside the scope of Art. 6 ECHR.141 The limited scope of Art. 6 ECHR notwithstanding, the judgment nevertheless illustrates the legitimate interests of the convicted person and the need for a legal remedy in order to provide effective judicial protection. The refusal to initiate a request for mutual legal assistance may interfere with the rights of the defendant in criminal proceedings, too. In particular, the trial court’s decision not to examine a witness presented by the accused person may result in a violation of the right to a fair trial (Art. 6 ECHR).142 Due to the transnational dimension of the rights of the defendant (supra Sect. 11.2.1), the same applies to the refusal to request a foreign state to take the witness’ statement. Accordingly, the Directive on the European investigation order expressly provides for the defendant’s right to file an application for the issuing of a European investigation order (Art. 1 para. 3).143 If the court rejects the application, the defendant must be able to challenge this decision, either directly or indirectly. In the latter case, judicial review will be granted in appeal proceedings, where the appellate court will assess whether or not the judgment is in breach of Art. 6 ECHR (cf. supra Sect. 11.2.2.2). Finally, a decision not to request a foreign state for extradition or mutual legal assistance may violate the rights of the victims (Arts. 2 and 3 ECHR, supra Sects. 11.1.1 and 11.2.1). As a consequence, the victim must be able to challenge this decision, referring to the procedural limb of the aforementioned guarantees and the

140

ECtHR, judgment of 1 April 2010, Application no. 27804/05 (Buijen v. Germany), paras. 62–63. ECtHR, ibid., paras. 43–44. 142 ECtHR, judgment of 15 June 2004, Application no. 40847/98 (Tamminen v. Finland), paras. 39–41. 143 Cf. Bachmeier Winter (2010), p. 587, referring to the principle of equality of arms in criminal proceedings as an element of the right to a fair trial (Art. 6 ECHR). 141

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states’ obligation to cooperate with each other. Obviously, this approach stands in sharp contrast to the traditional understanding that the decision on whether or not to request a foreign state for extradition forms part of the state’s external relations to another state and is therefore exempt from judicial review. This issue has been raised in the El-Masri case, where the victim of an ‘extraordinary rendition‘ of the US government claimed that the German government was obliged to request the United States of America for the extradition of CIA agents allegedly responsible for his extraordinary rendition, detention and inhuman treatment for several months. The German administrative court dismissed the case on the merits, stating that the government enjoyed a broad margin of discretion when deciding on whether or not to file an extradition request. On the other hand, the court ruled that the government’s decision must be subject to judicial review as it could, by its nature, violate the rights of the victim. Accordingly, the victim must be able to challenge that decision before a court.144

11.2.3 Judicial Protection in the Requested (Executing) State Like the requesting state, the requested state has to provide for judicial protection against human rights violations within its jurisdiction. The decision to grant a request and to execute the corresponding measures may directly interfere with fundamental rights (e.g. arrest and detention for extradition) or trigger indirect liability for acts taken by the requesting state after the request has been granted (e.g. inhuman treatment after surrender). On the other hand, the decision not to grant a request may violate the rights of the person concerned (e.g. victims, prisoners seeking for a transfer to their home country), too. Accordingly, the decision to grant (or not to grant) the request must be subject to judicial review ex officio (judicial authorisation, Sect. 11.2.3.1) or upon application of the person concerned (legal remedy, Sects. 11.2.3.2 and 11.2.3.3).

11.2.3.1

Judicial Authorisation

International law does not oblige the requested state to establish a mechanism of judicial authorisation in proceedings triggered by foreign requests for extradition or any other form of mutual legal assistance. In extradition proceedings, effective judicial protection does not require judicial review ex officio (prior authorisation) if the person wanted for extradition has a right to challenge the granting decision before a court, provided that the person is not surrendered before the court has ruled the extradition admissible (supra Sect. 11.1.1). Thus, judicial review ex post will be

144

Administrative Court Cologne, judgment of 7 December 2010, 5 K 7161, commented by Wilkitzki (2011), pp. 1117 ff.

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sufficient to protect the rights of the person to be surrendered adequately. The same applies to arrest and detention in extradition proceedings: the arrested person has a right to a legal remedy against arrest and detention, and the competent court shall order the arrested person’s release if the detention is not lawful (Art. 5 para. 4 ECHR, supra Sect. 11.1.1). Judicial review ex officio, however, is limited to arrest and detention in domestic criminal proceedings (Art. 5 para. 1 lit. c, para. 3 ECHR) but does not apply to deprivation of liberty in extradition proceedings (Art. 5 para. 1 lit. f ECHR).145 Even though judicial protection ex officio is usually unavailable for the arrested person in transnational criminal proceedings, this gap should be closed by the requesting state (judicial authorisation) because that state’s courts are in a better position to examine the substantive grounds (reasonable evidence, proportionality) of the arrest warrant on which the extradition request is based (supra Sect. 11.2.3.1). Judicial authorisation, however, might be required by EU law. According to the Framework Decision on the European arrest warrant, the decision to execute a European arrest warrant must be taken by a ‘judicial authority’ (Art. 6 para. 2, Art. 15 FD EAW). As far as the issuing of a European arrest warrant is concerned (Art. 6 para. 1 FD EAW), the Court of Justice held that the judicial authority, due to its protective function, had to be independent of the executive; according to the Advocate General, the scope of the concept was even limited to judges and courts (supra Sect. 11.2.2.1). The Court did not yet rule on the term ‘executing judicial authority’ (Art. 6 para. 2 FD EAW),146 but the systematic context suggests that both provisions follow a common concept of ‘judicial authority’. The case law of the Court may even support the strict interpretation proposed by the Advocate General. In Jeremy F, the Court had to rule on the question of whether EU law precluded Member States from providing for an appeal against the decision of the executing authority. Referring to the right to an effective remedy in surrender proceedings (Art. 47 para. 1 EU-CFR), the Court held that the decision to execute the European arrest warrant and to surrender the arrested person to the issuing state were to be taken by a judicial authority and, thus, subject to judicial oversight.147 Thereby, surrender proceedings complied with the requirements set out by Art. 47 EU-CFR regardless of whether or not the law of the executing state provided for a legal remedy against the decision of the executing authority.148 In other words, if the decision to execute a European arrest warrant is taken by a court, the right to legal remedy is satisfied and does not entail a right to an additional remedy (appeal).149 As Art. 47 EU-CFR guarantees judicial review by a court or tribunal, the Court’s conclusion, however, is 145

Meyer (2015), Art. 5 ECHR para. 205. See the request for a preliminary ruling from the Hof van beroep te Brussel (Belgium), 4 July 2019 (YU, ZV v AZ), Case C-510/19 (pending). 147 See also recital (8) FD EAW: “Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.” 148 CJEU, judgment of 30 May 2013, Case C-168/13 (Jeremy F), paras. 42, 45–47. 149 Ibid., para. 48. In Jeremy F (note 148), the applicant had appealed the decision of the Appellate Court of Bordeaux (acting as executing authority). 146

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apparently based upon the premise that the executing judicial authority is a court or tribunal, too. Although EU law does not require the Member State to provide for a legal remedy against the judicial decision to execute a European arrest warrant, the Court held that EU law did not preclude Member States from providing for an appeal suspending the execution of that decision.150 On the other hand, since an appeal against the decision of the executing authority might affect the objective to accelerate surrender proceedings, the executing state had to ensure that the final decision was adopted within the time limits set out by EU law (Art. 17 FD EAW).151 These strict time limits (60 days, respectively 10 days if the arrested person consents to surrender) favour a strict concept of judicial authority that is limited to courts and thereby provides for judicial protection ex ante instead of judicial review ex post, which is triggered by a legal remedy and carries the risk of exceeding the time limits for the final decision on the execution of the European arrest warrant. Accordingly, most Member States have designated courts as executing authorities or, like Germany, have made the decision of the competent authority (e.g. the public prosecution service) subject to prior court authorisation (judicial protection ex ante).152 Unlike surrender proceedings, the transfer of enforcement is usually not subject to judicial oversight; instead, the Member States may designate (any) authority as issuing or executing authority.153 The most recent legislation on the mutual recognition on freezing and confiscation orders leaves it to the Member States to determine the executing authority and merely clarifies that this term includes the competent court where domestic law requires that a court registers the order and authorises its execution.154 In this regard, the Member States may provide for judicial protection ex ante or for a legal remedy against the decision to execute the sanction imposed by the issuing state (see also infra Sect. 11.2.3.2). As regards cross-border gathering of evidence, the concept of executing authority follows a similar approach that does not expressly require a ‘judicial authority’ but also includes courts where the execution of investigative measures requires prior court authorisation.155 EU law does not establish an autonomous procedural

150

Ibid., para. 55. Ibid., paras. 58, 60–61. 152 See the most recent overview provided by the General Secretariat of the Council, Doc. No. 5471/ 20 of 11 February 2020. 153 Art. 2 Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, O.J. 2005 L 76/16; Art. 2 Framework Decision 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 for the purpose of their enforcement in the European Union, O.J. 2008 L 327/27. 154 Art. 2 para. 9 Regulation (EU) 2018/1805 of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders, O.J. 2018 L 303/1. 155 Art. 2 d) Directive 2014/41/EU of 3 April 2014 on the European investigation order in criminal matters, O.J. 2014 L 130/1. 151

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requirement but merely refers to the procedural law of the executing state. Even though an effective protection of fundamental rights may require the states to subject intrusive measures (e.g. surveillance of telecommunication) to prior court authorisation, the Member States retain a wide margin of discretion. Accordingly, the decision to execute a European investigation order may be taken by an authority other than a judge, court or tribunal. In this case, effective judicial protection is provided by court review ex post (Art. 47 para. 1 EU-CFR).156 A legal remedy against the granting decision, however, will not provide effective protection if the person concerned is not notified of the decision and its execution (e.g. with regard to undercover measures) and, thus, will not be able to exercise his or her right to judicial review. Where notification of the person concerned would jeopardise the investigation in the requesting (issuing) state, it can be deferred to a later stage of proceedings (infra Sect. 11.2.3.2).157 As a consequence, the requested measure may be executed and the evidence may be transferred to the requesting state before the person concerned can challenge the decision of the executing authority before a court, and the right to a legal remedy is rendered useless because even a successful challenge of the decision of the executing authority cannot reverse the transfer of evidence to the requesting (issuing) state. To close this lacuna, judicial protection can be provided by an authorisation mechanism that subjects the transfer of evidence to the requesting state to prior court authorisation; thereby, the court will review the granting decision and the execution of the requested investigative measure ex officio (judicial protection ex ante).158 Its protective function as a procedural safeguard notwithstanding, the mechanism, however, does not provide for a contradictory procedure where the person concerned is given the opportunity to make statements. In this regard, prior court authorisation is not equivalent to a legal remedy as set out by Art. 47 para. 1 EU-CFR. The following section will resume this issue and discuss scope and limits of effective judicial review ex post in the requested (executing) state.

11.2.3.2

Judicial Review of the Granting Decision and Its Execution

If the requested state grants the request and executes the requested measure, it is liable for the human rights violations resulting directly (i.e. within its territory) or indirectly (i.e. in the requesting state) from that decision. As a consequence of the responsibility of the requested state to respect and protect fundamental rights within its jurisdiction, the decision to grant and to execute the request must be subject to judicial review by a court of the requested state (supra Sect. 11.2.1). In particular, the right to an effective remedy (Art. 13 ECHR) guarantees judicial review of the

156

See also Art. 14 para. 1 Directive 2014/41/EU. See also Art. 14 para. 3 Directive 2014/41/EU. 158 See the mechanism in the Netherlands, comparative analysis (Sect. 10.1.2.). 157

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decision granting extradition before the person is surrendered to the requesting state if a violation of Art. 2 or Art. 3 ECHR is at stake (supra Sect. 11.1.1).159 The scope of judicial review, however, depends on the division of tasks and responsibilities between the requesting and the requested states. As for the transnational enforcement of sentences, the enforcing state may adapt the sentence to its domestic sanctioning system but lacks the competence to review the conviction rendered in the sentencing state.160 Likewise, the requested state is not obliged to assess the lawfulness of the arrest warrant on which a request for extradition is based (supra Sect. 11.2.1). As a consequence, the courts of the requested state have not to provide judicial protection in this respect either. These limitations to judicial review do not only apply to the decision to surrender the person sought for extradition but also extend to arrest and detention, i.e. measures of the requested state that directly interfere with the right to liberty. The division of tasks and responsibilities between the requesting and the requested states, however, does not assign mutually exclusive competences to the requesting and the requested states but establishes a joint responsibility of both states for an effective protection of human rights within their jurisdictions. For instance, the competent court of the requested state must order the release of the arrested person if the request for extradition appears unacceptable.161 The division of tasks and responsibilities notwithstanding, the requested state is primarily responsible for human rights violations resulting from the acts of its authorities. As a consequence, the scope of judicial review overlaps between the requesting and the requested states. This applies in particular to the area of mutual legal assistance where the formal and substantive requirements for investigative measures may differ significantly from state to state. Whereas the requesting state has to ensure that the requested measure complies with the requirements under its own domestic law, the requested state will execute the request only if the requested measure would be available in a similar domestic case. Accordingly, judicial review of the decision to grant and execute the request must include an assessment on whether the corresponding requirements for the requested measure according to the rules on domestic criminal proceedings (lex loci) are met. Since judicial review in the requesting and the requested states basically refers to one and the same measure, the assessment of the courts in both states may (if not must) take into account the same criteria and factors, depending on the applicable legal framework. The division of tasks and responsibilities notwithstanding, the requested state may not entirely rely on the assessment of the requesting state, in particular as far as the proportionality of the requested measure is concerned. According to the case law on Art. 8 ECHR, the 159

ECtHR, judgment of 13 December 2012, Application no. 22689/07 (De Souza Ribeiro v. France), para. 82; judgment of 14 February 2017, Application no. 46721/15 (Allanazarova v. Russia), paras. 98–99. 160 See e.g. Art. 9 ff. of the Convention on the Transfer of Sentenced Persons of 21 March 1983 (ETS N. 112), and the explanatory report, paras. 49, 54. 161 ECtHR, judgment of 21 October 1986, Application no. 9862/82 (Sanchez-Reisse v. Switzerland), para. 57.

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proportionality of searches depends upon several factors, such as the gravity of the offence; the availability of further evidence at the time when the search order is issued; the nature of the premises searched; the manner in which the search is carried out, including the presence of independent observers during the search; and the extent of possible repercussions on the work and reputation of the person affected by the search.162 In a transnational setting, the competent court in the requesting state is in a better position to examine some of these factors (e.g. the availability of further evidence), but for others, it might be vice versa (e.g. with regard to procedural safeguards like the presence of independent observers). As a consequence, a comprehensive proportionality test can hardly be carried out by either court on its own but falls within the joint responsibility of the requesting and the requested states’ judiciaries. This joint responsibility is also reflected in the requested state’s indirect liability for human rights violations in the requesting state. Since the requested state must not grant extradition where surrender would expose the arrested person to the risk of a flagrant breach of Art. 5 or Art. 6 ECHR (supra Sect. 11.2.1), the granting decision must be subject to judicial review, albeit limited to ‘flagrant breaches’. The requested state’s indirect liability for human rights violations in the requesting state mirrors the joint responsibility of both states and rejects a concept of division of tasks and responsibilities that are exclusively assigned to either the requested or the requesting states. Instead, even though the requesting state is primarily responsible for ensuring judicial protection against any potential human rights violations within its jurisdiction, the courts of the requested state maintain a residual protective function where the requesting state fails to provide effective judicial protection to the individual.163 As far as criminal proceedings in the requesting state are concerned, it is not a matter for the requested state to establish an additional mechanism for judicial review, but its courts will exercise their protective function only where the decision to grant the request will expose the applicant to a real risk of human rights violations (supra Sect. 11.2.1).164 The assessment of the court must be based upon evidence establishing substantial grounds for believing that the risk of serious human rights violations is real and that the requesting state is not able to provide adequate protection.165 Such individual risk may be established by reference to the general situation in the requesting state where the mere fact of being detained as a criminal suspect provides sufficient grounds for fear that the person to be surrendered will be at serious risk of being subjected to inhuman or degrading treatment (Art. 3 ECHR).166 162

ECtHR, judgment of 28 April 2005, Application no. 41604/98 (Buck v. Germany), para. 45; judgment of 7 June 2007, Application no. 71362/01 (Smirnov v. Russia), para. 44. 163 Kahl (2013), para. 50. 164 ECtHR, judgment of 13 December 2012, Application no. 22689/07 (De Souza Ribeiro v. France), para. 82. 165 ECtHR, judgment of 28 June 2011, Application no. 8319/07 (Sufi and Elmie v. United Kingdom), paras. 213–214. 166 ECtHR, judgment of 23 October 2008, Application no. 2440/07 (Soldatenko v. Ukraine), para. 72; judgment of 19 November 2009, Application no. 41015/04 (Kaboulov v. Ukraine), para. 112.

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According to the case law of the European Court of Human Rights, the scope of judicial protection is limited to serious human rights violations. Whereas violations of Art. 2 and Art. 3 ECHR must per se attain a minimum level of severity,167 the requested state is not responsible for any breach of the right to a fair trial (Art. 6 ECHR) unless criminal proceedings in the requesting state are tantamount to nullification or destruction of the very essence of the fair trial guarantee168 (supra Sect. 11.2.1). The high threshold (flagrant denial of justice) mirrors the primary responsibility of the requesting state and the residual function of judicial protection in the requested state and also the difficulties of the latter state’s courts in examining whether the trial to be held in the requesting state, considered as a whole, will be in conformity with the right to a fair trial.169 The latter aspect, however, does not require a limited scope of review where the request aims at the enforcement of a final judgment that has been rendered in the requesting state. In Kislov, the European Court of Human Rights distinguished between the two scenarios and entered into a thorough examination of the fairness of proceedings in the requesting state; nevertheless, the Court still applied the same threshold (i.e. a flagrant denial of justice).170 Thus, the rationale of the Court’s distinction referred not to the material scope of the requested state’s indirect liability for human rights violations but to the assessment of the requesting state’s capability of providing adequate judicial protection: where the defendant faces the risk of a violation of the fair trial guarantee in the requesting state, legal remedies (e.g. appeal) may still provide judicial protection. If the request is based upon a final judgment that has been a result of a violation of Art.6 ECHR, no such remedy will be available for the convicted person and it is a matter for the requested state’s courts to exercise their residual function and to provide judicial protection. The Court’s distinction seems to indicate that the functioning of judicial protection in transnational criminal proceedings crucially depends upon the availability of legal remedies in both the requesting and the requested states. In EU law, the cooperation instruments implementing the principle of mutual recognition have shaped the responsibilities of the issuing and the executing states more strictly. When a person is arrested on the basis of the European arrest warrant, the executing authority has to decide upon whether the arrested person should remain in detention or be provisionally released.171 The decision of the executing authority must comply with the right to liberty (Art. 6 EU-CFR), in particular

167

ECtHR, judgment of 28 June 2011, Application no. 8319/07 (Sufi and Elmie v. United Kingdom), para. 213. 168 ECtHR, judgment of 17 January 2012, Application no. 8139/09 (Othman [Abu Qatada v. United Kingdom]), para. 260. 169 See for the Court’s holistic approach (overall fairness of proceedings): ECtHR (GC), judgment of 25 March 1999, Application no. 25444/94 (Pélissier and Sassi v. France), paras. 45–46. 170 ECtHR, judgment of 9 July 2019, Application no. 3598/10 (Kislov v. Russia), paras. 110 ff. 171 Art. 12 Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. 2002 L 190/1.

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detention, and its duration must not be disproportionate.172 On the other hand, it is not upon the executing authority to examine the body of reasons (e.g. grounds for suspicion against the arrested person) on which the national and the European arrest warrants have been based; instead, the executing authority has to rely on the assessment of the issuing authority.173 Furthermore, if the executing authority orders the provisional release of the arrested person, it must take the measures it deems necessary to prevent the released person from absconding.174 This division of tasks and responsibilities between the issuing and the executing authority notwithstanding, the scope of the assessment is not mutually exclusive but still overlaps as far as the proportionality of arrest and detention is concerned (e.g. with regard to the nature and the gravity of the offence).175 The same holds true for the executing state’s indirect liability for human rights violations in the issuing state: even though it is a matter for the executing state to assess whether criminal proceedings in the issuing state comply with the European ordre public unless EU legislation provides for a ground for refusal, the Court of Justice has clarified in Aranyosi and Caldararu that the executing authority must not execute a European arrest warrant if surrender would expose the person concerned to the real risk of inhuman or degrading treatment (Art. 4 EU-CFR).176 However, the suspension of the obligation to execute a European arrest warrant is subject to strict requirements (systemic deficiencies, individual real risk, supra Sect. 11.2.1). According to the principle of mutual recognition, the executing state is expected to trust in the criminal justice system of the issuing state and its capability of affording effective judicial protection to the surrendered person. Thus, judicial protection by the executing state and its courts has a residual function only. As regards transnational evidence gathering, the Directive on the European investigation order expressly determines the tasks and responsibilities of the issuing and the executing states and their judiciary by stating that the substantive reasons for issuing the European investigation order may be challenged only in an action brought in the issuing state (Art. 14 para. 2 of the Directive). Since the issuing authority is in a better position to assess the substantive reasons (facts and evidence of the case, proportionality of the measure, supra Sect. 11.2.2.2), its assessment should be reviewed by the courts of the issuing state, too, and vice versa; where it is not upon the executing authority to examine the grounds for issuing the order,

172 CJEU, judgment of 16 July 2015, Case C-237/15 (Lanigan), paras. 54–55, 58–59; judgment of 12 February 2019, Case C-492/18 PPU (TC), paras. 55–56. 173 AG Campos Sánchez-Bordona, opinion of 30 April 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), para. 63. 174 Art. 12 Framework Decision on the European arrest warrant; CJEU, judgment of 16 July 2015, Case C-237/15 (Lanigan), para. 61; judgment of 12 February 2019, Case C-492/18 PPU (TC), para. 48. 175 Cf. CJEU, judgment of 16 July 2015, Case C-237/15 (Lanigan), para. 59. 176 CJEU (Grand Chamber), judgment of 5 April 2016, Case C-404/15 (Aranyosi and Caldaru), paras. 83 ff.

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judicial review before a court of the executing state should not extend to these grounds either. The decision of the European legislator to exclude the substantive reasons for issuing the European investigation order from judicial review in the executing state has been criticised as a breach of the right to a legal remedy (Art. 47 para. 1 EU-CFR) because the limited scope of the remedy available in the executing state rendered judicial protection rather ineffective.177 Moreover, it must be doubted whether the jurisdiction of the courts of the issuing and the executing states can be clearly delineated by reference to the term ‘substantive reasons’ as the executing authority has to assess whether the requested measure would be available in a similar domestic case (Art. 10 para. 1 lit. b, para. 5 of the Directive), and this assessment cannot be carried out without having regard, albeit in a limited manner, to the substantive reasons for the investigative measure and its proportionality.178 Accordingly, the exclusive jurisdiction of the issuing state shall be ‘without prejudice to the guarantees of fundamental rights in the executing state’ (Art. 14 para. 2 of the Directive).179 Thus, even though judicial review of the requested measure is mainly assigned to the issuing state, the courts of the executing state have maintained their residual protective function. Nevertheless, it cannot be doubted that the principle of mutual recognition shifts responsibility for effective protection of human rights from the executing to the issuing state. As far as the substantive reasons for the decision of the issuing authority are concerned, exclusive jurisdiction of the issuing state shall be the rule, and the executing state shall exercise its residual competence in exceptional cases only. This mechanism, however, does not provide effective judicial protection where a legal remedy against the decision of the issuing authority is not available (supra Sect. 11.2.2.2). Accordingly, the executing authority must not rely on a decision of the issuing authority, which cannot be challenged before a court because this would deprive the individual of his or her right to an effective legal remedy (Art. 47 para. 1 EU-CFR). The lack of judicial review in the issuing state eliminates the obligation to execute a European arrest warrant180 or a European investigation order181 (supra Sect. 11.2.2.2). At first sight, such a ground for refusal seems to contradict the core of mutual trust and mutual recognition. However, as the principle of mutual recognition is based upon the division of tasks and responsibilities between the issuing and the executing states, effective judicial protection in the issuing state is a key element of the cooperation instruments based upon this principle: where judicial review of the decision of the issuing authority is, at least in principle, exclusively assigned to

177

Esser (2011), pp. 1505 f. Ahlbrecht (2018), p. 607, with further references. 179 See also Zimmermann (2020), para. 55. 180 CJEU, judgment of 27 May 2019, Joined Cases C-508/18 and C-82/19 (OG and PI), para. 75; judgment of 27 May 2019, Case C-509/18 (PF), para. 53. 181 Opinion of AG Bot of 11 April 2019, Case C-324/17 (Gavanozov), paras. 54–56, 68. 178

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the issuing state, the courts of the executing state must ensure that the person concerned can challenge that decision before a court of the issuing state. As has been mentioned in the section on judicial authorisation (supra Sect. 11.2.3.1), judicial review of the decision to grant and execute the request cannot effectively protect the rights of the individual where the requested measure is executed and the evidence is transferred to the requesting state before the person concerned can challenge the granting decision. Where the person concerned could not be notified of the investigative measure without jeopardising the ongoing investigation, the transfer of evidence can be made subject to prior court authorisation in order to avoid a gap in judicial protection (supra Sect. 11.2.3.1). Such a mechanism, however, is not equivalent to a legal remedy and court proceedings where the plaintiff has a right to be heard (Art. 47 para.1, 2 EU-CFR). The effectiveness of judicial review ex post factum could be maintained by an obligation of the requesting state to recognise the decision whereby the executing state’s court has declared the granting decision unlawful. This understanding is reflected in the Directive on the European investigation order where the issuing state shall take into account a successful challenge against the decision to execute a European investigation order (Art. 14 para. 7 of the Directive). Despite its cautious wording—‘shall take into account’—the provision might establish an exclusionary rule for evidence that has been obtained illegally.182 Moreover, it could be used as a blueprint for a general obligation to recognise and execute court decisions of the executing state.183 Such an obligation to return evidence and/or delete information that has been obtained illegally would overcome the ineffectiveness of judicial review ex post factum and establish an effective cooperation mechanism for judicial protection.

11.2.3.3

Judicial Review of the Decision Not to Grant the Request

Where the decision not to grant the foreign request may violate individual rights, the person concerned has a right to an effective legal remedy, too. Even though a convicted person does not have a right to serve the sentence in his or her home country, the competent authority must take into account the prisoner’s legitimate interests (re-integration into society, Art. 8 ECHR) when taking its decision on whether or not to grant a request for transfer of enforcement; in this regard, the observations on judicial review of the decision not to initiate a request apply accordingly (supra Sect. 11.2.2.3).

182

See the comparative analysis, 10.2.3. Art. 68 para. 2 Regulation (EU) 2018/1862 of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, O.J. 2018 L 312/56.

183

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On the other hand, proceedings on extradition,184 the transfer of enforcement185 or mutual legal assistance186 in the requested (enforcing) state do not form part of criminal proceedings (criminal charge) and therefore fall outside the scope of Art. 6 ECHR so that the individual cannot invoke the right to a fair trial in order to challenge a decision not to grant the foreign request. This traditional approach, however, neglects the functional link to the criminal proceedings in the requesting state. Moreover, the defendant is confronted with law enforcement authorities of several countries and with considerable difficulties in exercising his or her defence rights. The vulnerability of the defendant in transnational criminal proceedings, therefore, requires an interpretation that extends the scope of fair trial rights to proceedings related to international cooperation in criminal matters.187 This applies in particular to the area of freedom, security and justice, where the traditional cooperation regime is replaced by mutual recognition instruments that interconnect the national criminal justice systems to an integrated legal framework of transnational criminal proceedings.188 In surrender proceedings on the basis of European arrest warrants, the EU legislator has expressly acknowledged the transnational dimension of fair trial rights.189 These recent developments support the view that these should be taken into account in mutual legal assistance proceedings. Accordingly, the defendant must be able to challenge the decision not to grant a request where the decision would hamper the effective exercise of his or her defence rights (see supra Sect. 11.2.2.3). This approach finds further support in recent case law on victims’ rights in transnational criminal proceedings. In Romeo Castaño, the European Court of Human Rights held that the procedural limb of Art. 3 ECHR obliged the requested state to cooperate with the requesting state and to grant extradition unless there was a legitimate ground for refusal (supra Sect. 11.2.1).190 As a consequence, if the decision not to grant extradition (or mutual legal assistance) may violate the victim’s right to an effective investigation, the requested state must provide judicial protection against such violation (supra Sect. 11.2.2.3).

184

ECtHR (Grand Chamber), judgment of 4 February 2005, Application no. 46827/99 and 46951/ 99 (Mamatkulov and Askarov v. Turkey), paras. 81–82. 185 ECtHR, Decision of 27 June 2006, Application no. 28578/03 (Szábo v. Sweden). 186 ECtHR, judgment of 27 October 2011, Application no. 25303/08 (Stojkovic v. Belgium and France), para. 38. 187 Meyer 2019, Art. 6 para. 65, with further references. 188 Meyer 2019, Art. 6 para. 65. 189 Art. 1 para. 1 Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings, O.J. 2010 L 280/1; Art. 1 Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, O.J. 2012 L 142/1. 190 ECtHR, judgment of 9 July 2019, Application no. 8351/17 (Romeo Castaño v. Belgium), paras. 80 ff., 91.

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433

Conclusion

Analysis of the international and European standards has revealed that the right to judicial protection is significantly gaining in importance. The European Court of Human Rights has shaped a minimum level of protection that has been further elaborated by new cooperation instruments under EU law and the Court of Justice. Even though the scope of mutual recognition instruments is limited to cooperation between Member States, the EU legislation addresses shortcomings in judicial protection by procedural rules and mechanisms that might provide solutions to corresponding problems in international cooperation with (or between) third states. Thereby, EU legislation and case law may trigger a broader discussion on the reform of the traditional regime of international cooperation in criminal matters. On the other hand, the foundations and prerequisites of mutual recognition instruments, the Union’s legal order and the principle of mutual trust in particular must be taken into consideration in the assessment of whether a rule or mechanism may also fit with the cooperation with third states. As a matter of principle, the rules on judicial protection and jurisdiction are accessory to the division of tasks and responsibilities between the requesting (issuing) and the requested (executing) states. However, the competences of both states— and the jurisdiction of their courts—are not mutually exclusive but overlap to a certain extent; where the courts of the requesting state is (primarily) competent, the courts of the requested state may still have a residual function and vice versa. Since criminal proceedings are mainly conducted in the requesting (issuing) state, its authorities must ensure that the formal and substantive requirements for the requested measure are fulfilled. Accordingly, it should be a matter for the requesting (issuing) state to protect the person sought for extradition against unlawful arrest and detention. Recent case law on the European arrest warrant has shaped a model of judicial control ex ante that should be exercised by judges or courts, and the same standard should be applied to the traditional extradition regime (supra Sect. 11.2.2.1). In general, requests for mutual legal assistance do not require a similar mechanism because the requested measures usually are less intrusive than arrest and detention. However, where the requested investigative measures seriously interfere with fundamental rights (e.g. secret surveillance measures), prior court authorisation may contribute to a more effective protection of individual rights in mutual legal assistance proceedings, too (supra Sect. 11.2.2.1). Furthermore, and irrespective of prior judicial authorisation, the request for extradition, transfer of enforcement or mutual legal assistance must be subject to judicial review by a court of the issuing state. In particular, the arrested person should be given the opportunity to challenge the extradition request (the European arrest warrant) before his or her surrender (supra Sect. 11.2.2.2). Likewise, the convicted person, the defendant, the victim or any other person concerned has a right to a legal remedy against the decision not to file a request for extradition, for the transfer of enforcement or for mutual legal assistance (e.g. the examination of witnesses). Judicial protection may also be granted indirectly; e.g. an accused person

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whose motion for taking evidence abroad has been rejected may lodge an appeal against the judgment, and the appellate court will incidentally review whether the court’s decision not to initiate a request for mutual legal assistance was in breach of Art. 6 ECHR (supra Sect. 11.2.2.3). In the requested (executing) state, the decision to grant (or not to grant) the request and to execute the requested measure must be subject to judicial review, too (supra Sects. 11.2.3.2 and 11.2.3.3). In extradition proceedings, a legal remedy against the granting decision satisfies this requirement if the person is not surrendered before the competent court has taken its final decision. Due to the suspensory effect of the remedy, there is no need for prior judicial authorisation, and the same applies to the transfer of enforcement. In contrast, effective judicial protection in mutual legal assistance proceedings may require a mechanism that subjects the transfer of evidence to the requesting state to prior court authorisation where the person concerned cannot be notified of the execution of the request without jeopardising the investigation and therefore cannot challenge the granting decision before the evidence will be transmitted to the requesting state. In this case, the court will review the granting decision and the execution of the requested investigative measure ex officio and thereby provide effective judicial protection (supra Sect. 11.2.3.1). Such a mechanism, however, is not required where the decision of the requested state’s court whereby the execution of the request is declared void is binding upon the courts of the requesting state so that the transferred evidence will be removed from the file (supra Sect. 11.2.3.2). Due to the division of tasks and responsibilities between the requesting and the requested states, judicial review before the courts of the requested state has a limited scope. As far as the substantive reasons (grounds for suspicion, proportionality) for the requested measure are concerned, the court of the requested state shall, in principle, rely on the assessment of the competent authority of the requesting state. Nevertheless, the scope of judicial review still overlaps as the courts of the requested state still have a residual protective function where the requesting state is not capable of providing effective judicial protection (supra Sect. 11.2.3.2). In contrast to the international cooperation framework, this residual function of the requested state’s courts is strictly limited or even excluded in mutual recognition instruments. As a consequence, the executing state must ensure that the issuing state lives up to its responsibility to provide for adequate judicial protection—or otherwise refuse the execution of the requested measure (supra Sect. 11.2.3.2). This rough outline may be a point of departure for developing standards of judicial protection in transnational criminal proceedings. Recent case law of the European Court of Human Rights on victims’ rights and the Court of Justice on judicial protection in surrender proceedings have given a new impetus to the debate on the legal and procedural status of an individual in this particular setting. Shifting the focus from the state to the individual, these developments underline that the transnational dimension of criminal proceedings cannot be a reason for limitations to judicial review, but rather for additional safeguards to address and compensate the vulnerable position of an individual confronted with one or more foreign criminal justice systems.

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References Ahlbrecht H (2018) Europäische Ermittlungsanordnung – Durchsuchung à la Europäischer Haftbefehl In. Strafverteidiger 38:601–609 Albers P, Beauvais P, Bohnert J-F, Böse M, Langbroek P, Renier A, Wahl T (2013) Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters. https://www.government.nl/binaries/government/documents/reports/2013/09/ 27/final-report-towards-a-common-evaluation-framework-to-assess-mutual-trust-in-the-fieldofeu-judicial-cooperation-in-criminal-m/j-18664-web-rapport-rechtsstaatmonitor-en.pdf. Accessed 12 May 2020 Allegrezza S (2018) Judicial review as a fundamental right: Article 47 of the Charter. In: Allegrezza S, Covolo V (eds) Effective defence rights in criminal proceedings. A European and comparative study on judicial remedies. Wolters Kluwer Italia, Milan Bachmeier Winter L (2010) European investigation order for obtaining evidence in the criminal proceedings study of the proposal for a European directive. Zeitschrift für Internationale Strafrechtsdogmatik 5(9):580–589 Böse M (2013) Comparative overview of the country reports and surveys. In: Albers P, Beauvais P, Bohnert J-F, Böse M, Langbroek P, Renier A, Wahl T (eds) Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters. https://www.government.nl/binaries/government/documents/reports/2013/09/27/final-reporttowards-a-common-evaluation-framework-to-assess-mutual-trust-in-the-field-of-eu-judicialcooperation-in-criminal-m/j-18664-web-rapport-rechtsstaatmonitor-en.pdf. Accessed 12 May 2020 Böse M (2020) The European Arrest Warrant and the independence of public prosecutors: OG & PI, PF, JR & YC. Common Market Law Review Vol. 57 no. 4: 1259-1282 Breuer M (2015) Art. 13 EMRK. In: Karpenstein U, Mayer FC (eds) EMRK Kommentar, 2nd edn. C.H. Beck, München Burchard C (2020) § 14 Auslieferung (Europäischer Haftbefehl). In: Böse M (ed) Europäisches Strafrecht. Enzyklopädie Europarecht, vol 11, 2nd edn. Nomos, Baden-Baden Covolo V (2018) Ensuring the effectiveness of defence rights: remedial obligations under the ABC Directives. In: Allegrezza S, Covolo V (eds) Effective defence rights in criminal proceedings. A European and comparative study on judicial remedies. Wolters Kluwer Italia, Milan Esser R (2011) Auswirkungen der Europäischen Beweisanordnung auf das deutsche Strafverfahren. In: Heinrich M, Jäger C, Achenbach H, Amelung K, Bottke W, Haffke B, Schünemann B, Wolter J (eds) Strafrecht als Scientia Universalis – Festschrift für Claus Roxin zum 80. Geburtstag. De Gruyter, Berlin Esser R (2012) Art. 8 EMRK. In: Erb V, Esser R, Franke U, Graalmann-Scheerer K, Hilger H, Ignor A (eds) Löwe/Rosenberg. Die Strafprozeßordnung und das Gerichtsverfassungsgesetz, vol 11, 26th edn. De Gruyter, Berlin Gleß S (2013) Transnational cooperation in criminal matters and the guarantee of a fair trial: approaches to a general principle. Utrecht Law Rev 9(4):90–108 Grabenwarter C (2014) European Convention on Human Rights Commentary. C.H. Beck/Hart/ Nomos/Helbing Lichtenhahn, München/Oxford/Baden-Baden/Basel Hofmann HCH (2014) Article 47: right to an effective remedy and to a fair trial - specific provisions (meaning). In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of fundamental rights. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden Kahl W (2013) § 253: Rechts- und Sachkontrolle in grenzüberschreitenden Sachverhalten. In: Isensee J, Kirchhof P (eds) Internationale Bezüge. Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol 11, 3rd edn. CF Müller, Heidelberg Knytel D (2019) Die Europäische Ermittlungsanordnung und ihre Umsetzung in die deutsche und französische Rechtsordnung. https://tel.archives-ouvertes.fr/tel-02478831/document. Accessed 12 May 2020

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Meyer F (2015) Artikel 1, 2, 3, 5, 6, 8 EMRK. In: Wolter J (ed) Systematischer Kommentar zur Strafprozessordnung, vol 10: Europäische Menschenrechtskonvention, 5th edn. Carl Heymanns, Köln Meyer F (2020) § 44: Rechtsschutz im europäischen Strafrecht. In: Leible S, Terhechte JP (eds) Europäisches Rechtsschutz- und Verfahrensrecht. Enzyklopädie Europarecht, vol 3, 2nd edn. Nomos, Baden-Baden Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (2020) Einleitung. In: Schomburg W, Lagodny O, Gleß S, Hackner T, Trautmann S (eds) Einleitung. Internationale Rechtshilfe in Strafsachen, 6th edn. C.H. Beck, München Wilkitzki P (2011) German government not obliged to seek extradition of CIA agents for ‘extraordinary rendition’: comments on the El-Masri Judgment of the Cologne Administrative Court. J Int Crim Just 9(5):1117–1127 Zimmermann F (2020) § 16 Beweisrechtshilfe. In: Böse M (ed) Europäisches Strafrecht. Enzyklopädie Europarecht, vol 11, 2nd edn. Nomos, Baden-Baden

Martin Böse Professor of Criminal Law, Criminal Procedure, International and European Criminal Law, University of Bonn, Germany.

Chapter 12

Recommendations Martin Böse, Maria Bröcker, and Anne Schneider

The comparative analysis has revealed various gaps in judicial protection in transnational criminal proceedings. These gaps may be due to deficiencies in the framework of judicial protection in domestic criminal proceedings (e.g. judicial review of investigative measures) but, first and foremost, originate from the complex division of tasks and responsibilities between the requesting and the requested states in the traditional framework of international cooperation in criminal matters. The European Court of Human Rights has shaped a minimum level of protection that has been further elaborated by new cooperation instruments under EU law and the Court of Justice. Even though the scope of mutual recognition instruments is limited to cooperation between EU Member States, the solutions offered by this legislation may also provide solutions to corresponding problems in international cooperation with (or between) third states. On the other hand, the foundations and prerequisites of mutual recognition instruments, the Union’s legal order and the principle of mutual trust in particular offer additional potential for enhancing the judicial protection of the individual in the area of freedom, security and justice. The following recommendations are based upon the comparative analysis of selected European states (Chap. 10) and build upon the assessment of the European minimum standards on judicial protection (Chap. 11). In general, the recommendations apply to cooperation within the Union as well as to cooperation with (or between) third countries. Some recommendations, however, will address the cooperation between EU Member States in particular.

M. Böse · M. Bröcker (*) University of Bonn, Bonn, Germany A. Schneider University of Mannheim, Mannheim, Germany © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_12

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General Aspects

1. As a matter of principle, the rules on judicial protection in transnational criminal proceedings should at least provide the same level of protection as the corresponding rules on purely domestic criminal proceedings. An equivalent standard of judicial protection should be established with regard to the requirement of judicial authorisation; legal remedies against decisions to initiate, grant and execute a request; and claims for compensation. 2. Judicial protection in transnational criminal proceedings suffers from a lack of regulation. A general reference to the rules on judicial protection in domestic criminal proceedings is not sufficient because it does not address the particularities of cross-border cooperation. For reasons of transparency, detailed, clear and unambiguous rules are necessary. 3. The person concerned cannot exercise the right to a legal remedy against a request, a granting decision or the execution of the requested measure without being aware of the measure or decision. Effective judicial protection, therefore, requires that the individual is informed of any decision or measure interfering with his or her rights and the available legal remedies against such decision or measure. Such notification may be postponed as long as it is necessary to avoid jeopardising the objective of the measure (arrest, surveillance measures). 4. In transnational criminal proceedings, the individual (especially the defendant) is confronted with several criminal justice systems and, thus, in a situation that hampers the effective exercise of procedural rights. The position of the defendant is furthermore impaired by the traditional distinction between criminal proceedings (in the requesting state) and cooperation proceedings (in the requested state) where the scope of fair trial rights does not extend to the latter. This understanding neglects the joint responsibility of the requesting and the requested states for effective protection of human rights, including the right to a fair trial (Art. 6 ECHR). The interconnection between common human rights standards and effective cooperation mechanisms has already been addressed in the new generation of cooperation instruments under EU law implementing the principle of mutual recognition. However, procedural guarantees (right to be heard, access to counsel, access to the file, right to translation and interpretation etc.) vary considerably among the areas of cooperation (extradition, enforcement of sentences, mutual legal assistance). The different scope of these guarantees may be due to EU legislation that has introduced these guarantees on a step-by-step basis. This approach may result in fragmented protection of defence rights. Instead, EU law (or national law) should establish general procedural guarantees and provide for limitations to the guarantees where appropriate. 5. Enhanced and expedited international cooperation in criminal matters should not only focus on more effective transnational investigation and prosecution of crimes but also ensure that the defendant can effectively exercise his or her procedural rights. To that end, EU legislation and the national criminal justice systems should more precisely target the vulnerable position of the individual in

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transnational criminal proceedings and the practical difficulties in exercising the right to an effective legal remedy in particular. To that end, the scope of existing procedural rights and safeguards may be extended (e.g. with regard to the translation of documents on which the request or the granting decision is based) and supplementary mechanisms may be established (e.g. assisting the person concerned in finding a lawyer and/or in lodging a remedy or a compensation claim with a court of a foreign state or, alternatively, providing information about legal remedies and the competent courts in the cooperating state).

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Judicial Protection in the Requesting (Issuing) State

6. The competent authorities of the requesting (issuing) state must ensure that the formal and substantive requirements for the requested measure are fulfilled. Accordingly, the courts of the requesting (issuing) state shall protect the person sought for extradition against unlawful arrest and detention. Since arrest and detention seriously interfere with the right to liberty, European arrest warrants and requests for extradition should be subject to judicial control ex ante to be exercised by judges or courts. In contrast, requests for mutual legal assistance do not require a similar mechanism insofar as the requested measures are less intrusive than arrest and detention. However, where the requested investigative measures seriously interfere with fundamental rights (e.g. secret surveillance measures), prior court authorisation may contribute to a more effective protection of individual rights in mutual legal assistance proceedings, too. 7. Irrespective of prior judicial authorisation, a request for extradition, transfer of enforcement or mutual legal assistance must be subject to judicial review by a court of the issuing state. In particular, the arrested person should be given the opportunity to challenge the extradition request (the European arrest warrant) before his or her surrender. This is particularly relevant where the extradition request is transmitted via international networks or information systems (Interpol, Schengen Information System) and the person wanted for extradition has a legitimate interest in effective protection against repeated arrest and detention triggered by ill-founded alerts. 8. Likewise, the convicted person, the defendant, the victim or any other affected person must have a right to challenge the decision not to file a request for extradition, the transfer of enforcement or mutual legal assistance (e.g. the examination of witnesses). The individual must not be deprived of a legal remedy for the sole reason that the request may affect the sovereign interests and foreign relations of the requesting state; these interests, however, may justify limitations to the scope of judicial review. 9. Judicial protection against the decision to file or not to file a request may also be granted indirectly in the trial phase. For instance, the accused person whose motion for taking evidence abroad has been rejected may lodge an appeal against the judgment, and the appellate court will incidentally review whether

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the court’s decision not to initiate a request for mutual legal assistance was in breach of the right to a fair trial (Art. 6 ECHR). On the other hand, the trial court may incidentally review the request for an investigative measure and exclude unlawfully obtained evidence from the trial. Incidental review, however, must provide equivalent and effective judicial protection to the person concerned. If this requirement is not met (e.g. with regard to investigative measures affecting third persons who are not a party to the trial), the person concerned must be able to challenge the request directly before a court (supra 6). 10. If the requesting state has given an assurance (guarantee) to the requested state in order to remove a cooperation obstacle related to fundamental rights, the person concerned must have the right to invoke the guarantee and to challenge any decision resulting from a violation of that guarantee before a court.

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Judicial Protection in the Requested (Executing) State

11. In the requested (executing) state, the decision to grant (or not to grant) the request and to execute the requested measure must be subject to judicial review, too. In extradition proceedings, effective judicial protection requires a suspensive effect of the legal remedy against the granting decision so that the applicant is not surrendered before the competent court has taken its final decision. Likewise, the enforcement of foreign judgments requires a suspensory effect of the remedy (or prior judicial authorisation). 12. Effective judicial protection in mutual legal assistance proceedings may require a mechanism that subjects the transfer of evidence to the requesting state to prior court authorisation where the person concerned cannot be notified of the execution of the request without jeopardising the investigation and therefore cannot challenge the granting decision before the evidence will be transmitted to the requesting state. In this case, the court will review the granting decision and the execution of the requested investigative measure ex officio and thereby provide judicial protection. Such a mechanism, however, will deprive the person concerned of his or her right to be heard. To avoid this consequence without rendering judicial review ex post ineffective, the legal framework for transnational evidence gathering should establish an obligation of the requesting state to recognise and execute the decision of the requested state’s court whereby the execution of the request is declared void so that the transferred evidence will be removed from the file. As the corresponding rules on the European investigation order illustrate, such a mechanism may build upon the principle of mutual recognition in EU law. Similar frameworks may be established for the decision not to execute a European arrest warrant in order to avoid repeated arrest and detention in the same executing Member State or for the decision to repeal the granting decision in order to trigger the repatriation of the surrendered or transferred person.

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13. Due to the division of tasks and responsibilities between the requesting and the requested states, judicial review before the courts of the requested state has a limited scope. As far as the substantive reasons (grounds for suspicion, proportionality) for the requested measure are concerned, the court of the requested state may rely on the assessment of the competent authority of the requesting state but still has a residual protective function where the requesting state is not capable of providing effective judicial protection. In contrast to the international cooperation framework, this residual function of the requested state’s courts is strictly limited or even excluded in mutual recognition instruments. As a consequence, the executing state must ensure that the issuing state lives up to its responsibility to provide for adequate judicial protection – or otherwise refuse the execution of the requested measure. 14. Where the requested state has accepted an assurance (guarantee) of the requested state in order to protect the fundamental rights of the person concerned (supra 10) and the requesting state does not comply with its obligations according to this assurance, the person concerned may apply to the competent authority of the requested state and request for action against the requesting state in order to prevent further disregard of the assurance (official protest, monitoring). The decision of the competent authority should be subject to judicial review (supra 11 and 12). Martin Böse Professor of Criminal Law, Criminal Procedure, International and European Criminal Law, University of Bonn, Germany Maria Bröcker Research assistant, University of Bonn, Germany Anne Schneider Professor of German, European and International Criminal Law, Criminal Procedure, White Collar Crime, University of Mannheim, Germany

Correction to: Country Report “Norway” Synnøve Ugelvik, Hedda Larsen Borgan, and Andreas Dalaker

Correction to: Chapter 7 in: M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_7 The original version of the chapter was inadvertently published with an error in author affiliations. The chapter has now been corrected. On page 229, the affiliations of the authors should read Synnøve Ugelvik, University of Oslo, Oslo, Norway Hedda Larsen Borgan, Sulland Law Firm, Oslo, Norway Andreas Dalaker, Office of the Norwegian Parliamentary Ombudsman, Oslo, Norway On page 270, the affiliations of the authors should read Synnøve Ugelvik, Associate Professor, Department of Public and International Law, University of Oslo, Norway Hedda Larsen Borgan, Trainee Lawyer, Sulland Law Firm, Oslo, Norway Andreas Dalaker, Higher Executive Officer, Office of the Norwegian Parliamentary Ombudsman, Oslo, Norway

The updated online version of this chapter can be found at https://doi.org/10.1007/978-3-030-55796-6_7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Böse et al. (eds.), Judicial Protection in Transnational Criminal Proceedings, Legal Studies in International, European and Comparative Criminal Law 5, https://doi.org/10.1007/978-3-030-55796-6_13

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