According to current world practice, foreign court decisions are subject to recognition and enforcement in the territory of the requested state in accordance with its procedural legislation. At the same time, the basic principle of international cooperation in the judicial sphere is the principle of mutual legal assistance, which is implemented mainly through the relevant international legal acts.
Within the framework of the European Union (hereinafter – the EU), a different principle of judicial cooperation is used, called the principle of mutual recognition of court decisions. The legal basis of this principle in the criminal procedure are the provisions of Art. 82 agreements on the functioning of the EU. The basic idea of the mutual recognition of judicial decisions is that any judicial decisions taken in one EU member state are recognized and executed in another EU member state without any additional formal procedures.
In the field of legal cooperation in criminal matters, the principle of mutual recognition of court decisions was most developed at the Institute of European Orders, which include: the European arrest warrant, the European investigation order, the European protection order. The purpose of this article is a comprehensive study of the legal basis of the institution of the European order as a tool for legal cooperation in criminal matters.
Mutual recognition of court decisions as a principle of cooperation in civil and criminal matters was consolidated according to the results of the summit of the European Council in 1999 in its final document, called “Milestones of Tampere” . One of the results of the Tampere summit was the adoption by the EU Council at the end of 2000 of a program to implement the principle of mutual recognition of court decisions in criminal cases . According to this program, the Council recognized the need to replace the standard extradition procedure between EU member states with a more advanced model of extradition. The implementation of this decision subsequently led to the creation of a European arrest warrant at the EU level, which marked the beginning of the institution of European warrants in EU law. Thus, the above-mentioned program was the impetus for the development of a new mechanism for judicial cooperation in criminal matters, which will play a key role in combating cross-border crime in the EU .
The European order represents a decision taken by a national competent authority that is of a union-wide nature and is applicable throughout the Union. In fact, European warrants replace the traditional forms of international legal cooperation in criminal matters. The legal basis of European orders has a two-tier structure: at the EU level, a framework union act is adopted, which is subject to implementation at the national level through the adoption of appropriate national criminal procedure acts. The European Order Institute represents the highest degree of implementation of the principle of mutual recognition of judicial decisions, effectively equalizing the procedure for implementing procedural decisions across the Union with a similar procedure at the national level.
Despite the fact that all three types of European orders have a common legal nature and common sources, each of them has its own prerequisites and its own way of implementation in the EU legal system.
European arrest warrant.
Earlier it was noted that the agreement on the introduction of a European arrest warrant was reached during the European Council summit in Tampere. Accelerating the process of making a legal decision on the creation of a system of a European arrest warrant was attached to a terrorist act in New York on September 11, 2001 [4, p. 152]. As early as June 2002, the Council adopted Framework Decision No. 2002/584 / JHA on the European arrest warrant . In accordance with Art. 1 of this framework decision, the European arrest warrant is a court decision taken by a member state to detain and transfer the wanted person to another member state for criminal prosecution or for the execution of a punishment or security measure related to imprisonment.
The main idea of the European arrest warrant was to replace the traditional extradition procedure between EU member states with an extradition (transfer) procedure carried out directly between law enforcement agencies . In this case, the European arrest warrant is a universal mechanism, not limited to any types of crimes, as well as the nationality of the person to be extradited [6, p. 56]. Framework Decision No. 2002/584 / JHA on the European arrest warrant almost immediately after entry into force was subject to judicial review by the EU Court of Justice. As part of the prejudicial request from the Belgian court , the EU Court recognized the framework decision on the European arrest warrant to the relevant EU primary law norms in terms of both form and content.
A European arrest warrant may be applied to a person who is suspected of having committed a crime, for which responsibility for imprisonment of one year or more may be imposed. The maximum period for consideration of the issue of extradition is 90 days. The framework decision (article 3) establishes three grounds for refusal of extradition for a court of the requested state:
– the crime falls under the amnesty;
– a person was convicted of committing the same crime, or the statute of limitations for criminal liability had expired;
– The person has not reached the age of criminal responsibility.
The extradition of persons on the basis of the European arrest warrant in relation to certain types of crimes is carried out without taking into account the extradition characteristic [8, p. 32] principle of double imputation. This principle implies that the act must be criminal in both the requested and the requesting state. With regard to the European arrest warrant, this principle does not apply to a number of the most dangerous types of crimes, for the commission of which there is a liability in the form of imprisonment for a term of three years and more.
Despite the position of the national constitutional courts of some states [9, p. 105], by means of the European arrest warrant, the EU also managed to overcome the traditional extradition principle, according to which states refuse to extradite their own citizens.
In 2011, the European Commission prepared a report on the implementation of the framework decision No. 2002/584 / JHA . One of the problems noted in the report was that national courts often use this tool even in cases where there is no need or expediency. The Commission noted that the decision to issue a European arrest warrant is a right and not an obligation of the court, therefore national courts must adhere to the principle of proportionality. In other words, the national courts in each particular case should take into account the gravity of the crime and other circumstances of the case when deciding on the issuance of a European arrest warrant.
The use of an institution such as the European arrest warrant in the EU law is directly related to the issue of trust between member states. In one of his re-
The EU Court of Justice noted that the principle of mutual recognition, on which the European arrest warrant is based, is based on the mutual trust between member states that their legal systems are capable of providing equivalent and effective protection for fundamental rights recognized at EU level . At the same time, according to the position of the EU Court of Justice formulated in another case , if the court of the requested state has doubts that the conditions of detention of prisoners in the requesting state correspond to fundamental rights, the person’s extradition may be suspended.
European warrant for the production of investigative actions.
The need to introduce a special order providing for the possibility of procedural actions by the investigating authorities of one EU state on the territory of another EU state stemmed from the Final Document of the European Council Summit in Tampere, according to paragraph 36 of which the principle of mutual recognition should also apply to warrants issued at pre-trial stages, in particular, those that allow the competent authorities to obtain evidence and freeze assets.
The creation of the mechanism of the European warrant for the production of investigative actions was carried out in two stages. At the first, a framework decision was made on a European warrant for obtaining evidence , which had a rather limited scope of application and concerned only certain types of legal proceedings. At the second stage, it was necessary to create a fundamentally new mechanism, covering all areas of criminal procedure for collecting evidence and in fact replacing the traditional form of legal assistance.
The developed tool was called the European Investigation Order (European Investigation Order (EIO)), its legal basis was Directive No. 2014/41 / EU . According to Article 1 of the directive, the European investigation order is a solution issued by the competent authority of one EU member state (requesting state) in order to take one or more investigative actions on the territory of another EU member state (executing state) to obtain evidence This type of European warrant covers the production of all legal proceedings, except for the creation of joint investigative teams and the process of collecting evidence in the framework of the activities of these teams. The territorial scope of the European warrant for the production of investigative actions covers all EU countries except Denmark and Ireland.
The European warrant for the production of investigative actions is subject to mandatory execution and does not need any additional confirmation from the performing state. According to Art. 9 of Directive 2014/41 / EU. A European investigation order must be executed in accordance with the formalities and procedure specified by the authority that issued the order. In other words, in this case the principle of forum regit actum is applied, that is, the law enforcement agency of the executing state is obliged to fulfill the request in accordance with the procedure established in the requesting country. The use of this principle is intended to exclude situations in which the evidence obtained in the executing state in accordance with its legislation would be inadmissible in the requesting state [15, p. 130].
The use of this principle indicates a high level of integration within the EU, since, in accordance with current international practice, the executing state is governed by its legislation (lo – cus regit actum) when executing a request. At the same time, the directive establishes exceptions to this rule (Article 10), within which the competent authority of the executing state is entitled, in accordance with its procedural legislation, to take a different investigative action than the one specified in the request. Thus, the provisions of Art. 9 and 10 of Directive No. 2014/41 / EU indicate the use of two principles to define procedural legislation in the execution of a European warrant for the production of investigative actions: the locus regit Act and the forum regit actum [16, p. 107].
The use of such a tool as the European order for the production of investigative actions undoubtedly greatly simplifies the cross-border mechanism for collecting evidence within the EU, which gives rise to a new term in the EU political lexicon – freedom of movement of evidence .
European protection order.
The European protection order (European protection order (EPO) is the third type of European order. Its legal basis is Directive No. 2011/99 / EU . In accordance with Article 2 of the said Directive, the European Protection Order means a decision made by a competent the authority of one Member State on the application of protective measures, on the basis of which the competent authority of another Member State takes any appropriate measures in accordance with its national legislation in order to continue to implement the protection of the protected person.
The main idea of this mechanism is to ensure the preservation of special protection measures adopted in one EU member state in relation to an individual in the event of his transfer to the territory of another EU member state. In other words, in the case of moving to another EU country, the protected person does not have to re-apply to the competent authorities at the new place of residence for obtaining protection.
In accordance with Art. 2 of Directive No. 2011/99 / EU, any individual (including victims, witnesses, etc.) to whom protection measures are applied is protected. At the same time, this directive regulates relations exclusively in the criminal law field and is aimed at protecting against unlawful actions of a criminal nature.
The European arrest warrant is not widely spread in the EU. According to the European Parliament, despite the active movement of protected persons across the internal borders of the EU, as of September 2017, only seven warrants were issued .
Summing up the study, we note that the institution of European orders is an integral component of the so-called common EU court space, based on the principle of mutual recognition of court decisions. Currently, the EU institutions continue to work on the formation of new tools in the framework of legal cooperation in criminal matters, which are designed to ensure the further implementation of the principle of mutual recognition of judicial decisions and will contribute to the creation of a common judicial space within the EU.
One of the key elements of such work is the consistent formation of the institution of European orders, which are all-union in nature and are to be applied throughout the Union. Currently, the EU law provides for three types of European orders, but it cannot be ruled out that in the medium term, their new types can be created for use in criminal proceedings.
The development of the institution of European orders indicates that in the field of cooperation in criminal matters, supranational mechanisms are being strengthened, with the help of which the scope of judicial and other acts adopted in one EU state is actually extended to the territory of the entire Union.
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