Digitalization of courts in the context of mutual assistance in

criminal mattersDr Arkadiusz LachDr Arkadiusz Lach

Department of Criminal ProcedureDepartment of Criminal Procedure

University of Nicolaus Copernicus in University of Nicolaus Copernicus in TorunTorun

Agenda

Definition of mutual assistanceDefinition of mutual assistance Legal instruments of cooperationLegal instruments of cooperation VideoconferencesVideoconferences AudioconferencesAudioconferences TranslatingTranslating Data and documentsData and documents Criminal recordsCriminal records ConclusionsConclusions

Definition of mutual assistance

Assistance given by requested state to Assistance given by requested state to requesting state, esp. in gathering of requesting state, esp. in gathering of evidenceevidence

In EU mutual assistance is to be In EU mutual assistance is to be systematically replaced by mutual systematically replaced by mutual recognition subject to minimum safeguards recognition subject to minimum safeguards (without (without exequaturexequatur procedure) procedure)

Legal instruments of cooperation in Europe Council of Europe convention on mutual Council of Europe convention on mutual

assistance in criminal matters (1959) with assistance in criminal matters (1959) with additional protocols (1978 and 2001)additional protocols (1978 and 2001)

Convention on mutual assistance between Convention on mutual assistance between Member States of EU (2000) with additional Member States of EU (2000) with additional protocol (2001)protocol (2001)

Council framework decision on the execution in Council framework decision on the execution in EU of orders freezing property or evidence (2003)EU of orders freezing property or evidence (2003)

Council framework decision on European Council framework decision on European Evidence Warrant (2003 proposal)Evidence Warrant (2003 proposal)

Videoconferences

2000 Convention (art. 10): the requested MS shall 2000 Convention (art. 10): the requested MS shall agree to the hearing by videoconference provided the agree to the hearing by videoconference provided the use of the videoconference is not contrary to the to use of the videoconference is not contrary to the to fundamental principles of its law and on condition fundamental principles of its law and on condition that it has the technical means for videoconferencing, that it has the technical means for videoconferencing, such means may be made available to it by the such means may be made available to it by the requesting State by mutual agreementrequesting State by mutual agreement

Similar provision in the CoE second additional Similar provision in the CoE second additional protocol (art. 9)protocol (art. 9)

Witness, expert, sometimes the accused (suspect)Witness, expert, sometimes the accused (suspect)

Audio (telephone) conferences

2000 Convention (art. 11): if a person is on 2000 Convention (art. 11): if a person is on MS territory and has to be heard as witness MS territory and has to be heard as witness or expert by judicial authorities of another or expert by judicial authorities of another MSMS

Agreement of witness or expertAgreement of witness or expert Similar provision in the second additional Similar provision in the second additional

protocol (art. 10)protocol (art. 10)

Main advantages of audio and videoconferences CostsCosts TimeTime Immediacy principle (best evidence), not only Immediacy principle (best evidence), not only

depositions but also examination and cross-examinationdepositions but also examination and cross-examination Allow to overcome some legal obstacles concerning Allow to overcome some legal obstacles concerning

admissibilty of evidence in written form (ex. admissibilty of evidence in written form (ex. requirement of oath), esp. in very strict jurisdictions requirement of oath), esp. in very strict jurisdictions (ex. Australia)(ex. Australia)

Witness protection (ex. anonymous and crown witness)Witness protection (ex. anonymous and crown witness)

Main problems with audio and videoconferences Time differencesTime differences Presence of judicial authorityPresence of judicial authority Loss of transmissionLoss of transmission Speed of tranmissionSpeed of tranmission Visible to all participantsVisible to all participants Presentation of documents and objects to testifying Presentation of documents and objects to testifying

personperson Estimation of credibility of testifying person Estimation of credibility of testifying person

(difference between audio and videoconferences)(difference between audio and videoconferences) CostsCosts

Translating and converting voice

Pilot programmes to translate and Pilot programmes to translate and converting voice (voice recognition converting voice (voice recognition systems)systems)

Possibility of simoultanous translation Possibility of simoultanous translation

Obtaining documents or data

EEW: documents and data (stored)EEW: documents and data (stored) 2000 Convention: interception of communication2000 Convention: interception of communication Access to foreign law and tools for translatingAccess to foreign law and tools for translating Translators to facilitate preparing warrants in the Translators to facilitate preparing warrants in the

language of exexuting statelanguage of exexuting state Access to documents from case filesAccess to documents from case files Passing of documents should be possible without Passing of documents should be possible without

converting them to different formatconverting them to different format New instrument: spontaneous exchange of New instrument: spontaneous exchange of

informationinformation

Criminal records

Framework decision on EEW (art.8): Each Framework decision on EEW (art.8): Each Member State shall designate a central criminal Member State shall designate a central criminal records authority to which the EEW can be records authority to which the EEW can be transmitted (directly or indirectly) for the purpose transmitted (directly or indirectly) for the purpose of obtaining a copy of any official recordsof obtaining a copy of any official records

Art. 10 conditions on the use of personal data Art. 10 conditions on the use of personal data (1981 Convention applies not 1995 directive)(1981 Convention applies not 1995 directive)

Plans to establish European Criminal RegistrationPlans to establish European Criminal Registration

Means of transmission of request 2003 „freezing” FD (art. 4): a freezing order shall be transmitted by 2003 „freezing” FD (art. 4): a freezing order shall be transmitted by

any means capable of producing a written record under conditions any means capable of producing a written record under conditions allowing the executing State to establish authenticityallowing the executing State to establish authenticity

2000 Convention (art. 6): in writing, or by any means capable of 2000 Convention (art. 6): in writing, or by any means capable of producing a written record under conditions allowing the receiving producing a written record under conditions allowing the receiving MS to establish authenticityMS to establish authenticity

1959 Convention (art. 15): may be forwarded by any electronic or 1959 Convention (art. 15): may be forwarded by any electronic or other means of telecommunication provided that the requesting party other means of telecommunication provided that the requesting party is prepared upon request, to produce at any time a written record of it is prepared upon request, to produce at any time a written record of it and the original. However any state may establish the conditions under and the original. However any state may establish the conditions under which it shall be willing to accept and execute requests received by which it shall be willing to accept and execute requests received by electronic or other means of telecommunicationelectronic or other means of telecommunication

Conclusions Digitalization of courts shall be continued in order to make use of Digitalization of courts shall be continued in order to make use of

legal instruments relating to mutual assistance in criminal matterslegal instruments relating to mutual assistance in criminal matters On the other hand technological progress supports and enhances On the other hand technological progress supports and enhances

mutual assistance which is now developing very dynamicallymutual assistance which is now developing very dynamically As mutual assistance is getting decentralized digitalization is needed As mutual assistance is getting decentralized digitalization is needed

also on lower levels also on lower levels We are working on a common legal standard. Do we need a common We are working on a common legal standard. Do we need a common

technical standard as well? (UK example-six systems with different technical standard as well? (UK example-six systems with different infrastracture, data management and applications) Interoperability infrastracture, data management and applications) Interoperability issue (CoE R (2003) 14issue (CoE R (2003) 14

Exchanging or sharing information?Exchanging or sharing information? One of the main problems is authentification of recordsOne of the main problems is authentification of records Need for supervisory activitiesNeed for supervisory activities

Thank you for your attention

Questions ?