Marloes van Wijk
Cross-border evidence gathering
Equality of arms within the EU?
Paperback Engels 2017 1e druk 9789462367746Verwachte levertijd ongeveer 7 werkdagen
Samenvatting
In order to develop an Area of Freedom, Security and Justice, the European Union is adopting measures to enhance international cooperation in criminal matters among the police and judicial authorities of its Member States. The adopted instruments concerning evidentiary matters, such as the gathering of evidence in another EU Member State, seem to serve the main purpose of assisting the authorities in investigating and prosecuting (cross-border) crime. This raises the question to what extent the defence is also given the possibility to gather information and materials in another EU Member State with the aim of preparing and presenting its case at trial and, in particular, whether the current (EU) legal framework on cross-border evidence gathering meets the requirements of the principle of equality of arms.
This book addresses these questions by, first of all, discussing the application of the principle of equality of arms, as enshrined in both Article 6 ECHR and Article 47 CFR, in cross-border criminal cases. Secondly, it provides an overview of the European treaties and legislation on cross-border evidence gathering to explain to what extent they give opportunities to the defence to request the assistance of foreign authorities in obtaining specific information and materials in another EU Member State, and also to participate in the execution of these requests.
In addition, in order to understand how the European treaties and legislation on cross-border evidence gathering are applied by the EU Member States, this book includes a comparative study of three national jurisdictions: the Netherlands, England and Wales, and Italy. Furthermore, it analyses the criminal justice system of the International Criminal Court, as a potential source of inspiration for new EU legislation to strengthen the ability of the defence to obtain evidence in another EU Member State.
This book is part of the so-called Pompe series, which contains publications by staff members of the Willem Pompe Institute for Criminal Law and Criminology in Utrecht, and by authors closely aligned to the school of thought for which the Institute is known. One of its main characteristics has always been the combination of legal and social-scientific approaches to problems of criminal law. The central theme of the Institute’s research programme is the protection and enforcement of fundamental rights in a changing world. Within that programme, research focuses on the position of vulnerable groups in relation to the state and on the significance of individual human rights in an international context.
Specificaties
ISBN13:9789462367746
Taal:Engels
Bindwijze:paperback
Aantal pagina's:344
Uitgever:Eleven International Publishing
Druk:1
Verschijningsdatum:19-7-2017
Hoofdrubriek:Juridisch
ISSN:
Jongbloed:Europees recht
Serie:Pompe-reeks
Lezersrecensies
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Inhoudsopgave
Table of abbreviations xi
Chapter 1 – Introduction
1 The research topic 1
1.1 Setting the scene: the position of the defence in international cooperation 1
1.2 The principle of equality of arms 4
1.3 The organisation of cross-border evidence gathering within the EU 5
1.4 A comparative analysis of national jurisdictions 6
1.4.1 The adversarial and the inquisitorial models 7
1.4.2 The selected national jurisdictions 9
1.5 The International Criminal Court 10
2 The research question 11
3 The methodology 11
Chapter 2 – The principle of equality of arms within the EU
1 Introduction 13
2 The ECHR 14
2.1 The right to a fair trial in Article 6 ECHR 14
2.1.1 The structure of Article 6 ECHR 14
2.1.2 The applicability of Article 6 ECHR to international cooperation in criminal matters 15
2.2 The principle of equality of arms in Article 6 ECHR 24
2.2.1 The general definition of the principle of equality of arms 25
2.2.2 The specific aspects of the principle of equality of arms 27
2.3 The principle of equality of arms in Article 6 ECHR and evidence gathering 30
2.3.1 The application of Article 6 ECHR to evidentiary matters 30
2.3.2 Evidence gathering by the defence for the preparation of a case 31
2.3.3 The examination of witnesses 34
2.3.3.1 Requesting a witness examination 35
2.3.3.2 The examination of a witness 39
2.3.4 Search and seizure 45
3 The CFR 46
3.1 The right to a fair trial in Article 47 CFR 46
3.1.1 The structure of Article 47 CFR 46
3.1.2 The relation between Article 47 CFR and Article 6 ECHR 46
3.1.3 The applicability of Article 47 CFR to international cooperation in criminal matters 49
3.2 The principle of equality of arms in Article 47 CFR 54
3.2.1 The general definition of the principle of equality of arms 55
4 A transnational principle of equality of arms within the EU? 57
5 Summary and concluding remarks 61
Chapter 3 – Cross-border evidence gathering within the EU
1 Introduction 65
2 Cross-border evidence gathering and the principle of mutual legal assistance 66
2.1 The traditional approach to international cooperation in criminal matters 66
2.1.1 The principle of mutual legal assistance 66
2.1.2 The European Convention on Mutual Assistance in Criminal Matters of 1959 67
2.2 The position of the individual: from object to subject 70
2.3 A more modern approach to international cooperation 71
2.3.1 The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 2000 73
2.3.2 The Second Additional Protocol of 2001 74
3 Cross-border evidence gathering and the principle of mutual recognition 75
3.1 International cooperation and the creation of an Area of Freedom, Security and Justice 75
3.1.1 The principle of mutual recognition 77
3.2 The protection of defence rights 80
3.2.1 Mutual trust as a prerequisite for mutual recognition 80
3.2.2 The EU legislation on defence rights pre-Lisbon 83
3.2.3 The Treaty of Lisbon: the legislation on defence rights 85
3.2.3.1 A new legal basis 85
3.2.3.2 Minimum rules for defence rights in relation to evidence gathering 89
3.3 The European Investigation Order: a new position for the defence in cross-border evidence gathering? 90
3.4 European criminal law on a supranational level: the creation of an EPPO 95
4 EU bodies and networks 98
4.1 Eurojust 99
4.2 European Judicial Network 101
4.3 An EU body for the defence? 102
5 Summary and concluding remarks 104
Chapter 4 – The Netherlands
1 Introduction 107
2 The Dutch criminal procedure 108
2.1 The nature of the criminal procedure 108
2.2 The position of the authorities in the pre-trial phase 111
2.2.1 The prosecutor and the police 111
2.2.2 The judiciary 112
2.3 The position of the defence in the pre-trial phase 114
2.4 The principle of equality of arms 117
3 Cross-border evidence gathering in Dutch criminal procedure 118
3.1 The applicable legislation 118
3.2 The national organisation 120
3.3 The position of the authorities 121
3.4 The position of the defence 123
3.4.1 Evidence gathering through international cooperation 123
3.4.2 Independent investigations by the defence 125
4 Cross-border evidence gathering: witness examinations 127
4.1 Independent investigations by the defence 127
4.2 Witness examinations through international cooperation 128
4.2.1 Making a request for witness examination 128
4.2.2 Carrying out a request for a witness examination 130
4.2.2.1 The Netherlands as the requesting State 130
4.2.2.2 The Netherlands as the requested State 132
5 Cross-border evidence gathering: search and seizure 133
5.1 Independent investigations by the defence 133
5.2 Search and seizure through international cooperation 133
5.2.1 Making a request for search and seizure 133
5.2.2 Carrying out a request for search and seizure 135
5.2.2.1 The Netherlands as the requesting State 135
5.2.2.2 The Netherlands as the requested State 135
6 The future of cross-border evidence gathering: the European Investigation Order 136
7 Summary and concluding remarks 137
Chapter 5 – England & Wales
1 Introduction 139
2 The English and Welsh criminal procedure 140
2.1 The nature of the criminal procedure 140
2.2 The position of the authorities in the pre-trial phase 143
2.2.1 The police 143
2.2.2 The prosecutor 144
2.2.3 The judiciary 146
2.3 The position of the defence in the pre-trial phase 147
2.4 The principle of equality of arms 151
3 Cross-border evidence gathering in the English and Welsh criminal procedure 153
3.1 The applicable legislation 153
3.2 The national organisation 156
3.3 The position of the authorities 157
3.4 The position of the defence 158
3.4.1 Evidence gathering through international cooperation 158
3.4.2 Independent investigations by the defence 161
4 Cross-border evidence gathering: witness examinations 163
4.1 Independent investigations by the defence 163
4.2 Witness examinations through international cooperation 164
4.2.1 Making a request for a witness examination 164
4.2.2 Carrying out a request for a witness examination 166
4.2.2.1 England or Wales as the requesting State 166
4.2.2.2 England or Wales as the requested State 169
5 Cross-border evidence gathering: search and seizure 172
5.1 Independent investigations by the defence 172
5.2 Search and seizure through international cooperation 172
5.2.1 Making a request for search and seizure 172
5.2.2 Carrying out a request for search and seizure 174
5.2.2.1 England or Wales as the requesting State 174
5.2.2.2 England or Wales as the requested State 175
6 The future of cross-border evidence gathering: the European Investigation Order 176
7 Summary and concluding remarks 177
Chapter 6 – Italy
1 Introduction 179
2 The Italian criminal procedure 180
2.1 The nature of the criminal procedure 180
2.2 The position of the authorities in the pre-trial phase 184
2.2.1 The prosecutor and the police 184
2.2.2 The judiciary 186
2.3 The position of the defence in the pre-trial phase 187
2.4 The principle of equality of arms 193
3 Cross-border evidence gathering in the Italian criminal procedure 193
3.1 The applicable legislation 193
3.2 The national organisation 195
3.3 The position of the authorities 196
3.4 The position of the defence 196
3.4.1 Evidence gathering through international cooperation 196
3.4.2 Independent investigations by the defence 198
4 Cross-border evidence gathering: witness examinations 201
4.1 Independent investigations by the defence 201
4.2 Witness examinations through international cooperation 201
4.2.1 Making a request for a witness examination 201
4.2.2 Carrying out a request for a witness examination 204
4.2.2.1 Italy as the requesting State 204
4.2.2.2 Italy as the requested State 205
5 Cross-border evidence gathering: search and seizure 206
5.1 Independent investigations by the defence 206
5.2 Search and seizure through international cooperation 206
5.2.1 Making a request for search and seizure 206
5.2.2 Carrying out a request for search and seizure 207
5.2.2.1 Italy as the requesting State 207
5.2.2.2 Italy as the requested State 207
6 The future of evidence gathering: the European Investigation Order 208
7 Summary and concluding remarks 208
Chapter 7 – The International Criminal Court
1 Introduction 211
2 The criminal procedure of the International Criminal Court 212
2.1 The nature of the criminal procedure 212
2.2 The ICC and State cooperation 215
2.3 The position of the Prosecutor in the pre-trial phase 218
2.3.1 The Office of the Prosecutor 218
2.3.2 The phase of the preliminary examination 219
2.3.3 The phase of the investigation 220
2.3.4 The phase of the confirmation hearing 225
2.3.5 The preparation phase prior to the trial proceedings 227
2.4 The position of the judiciary in the pre-trial phase 228
2.4.1 The organisation of the judiciary 228
2.4.2 The phase of the preliminary examination 228
2.4.3 The phase of the investigation by the Prosecutor 229
2.4.4 The phase of the confirmation hearing 229
2.4.5 The preparation phase prior to the trial proceedings 230
2.5 The position of the defence in the pre-trial phase 230
2.5.1 The Office of Public Counsel for the Defence 230
2.5.2 The phase of the preliminary examination 231
2.5.3 The phase of the investigation by the Prosecutor 232
2.5.4 The phase of the confirmation hearing 233
2.5.5 The preparation phase prior to the trial proceedings 241
2.6 The principle of equality of arms 241
3 Witness examinations 243
3.1 Independent investigations by the defence 243
3.2 Witness examinations through State cooperation 244
3.2.1 Making a request 244
3.2.2 Carrying out the witness examination 246
4 Search and seizure 247
4.1 Independent investigations by the defence 247
4.2 Search and seizure through State cooperation 247
4.2.1 Making a request 247
4.2.2 Carrying out a search 248
5 Summary and concluding remarks 248
Chapter 8 – The comparative analysis and conclusion
1 Introduction 251
2 The principle of equality of arms 252
3 The comparative analysis 254
3.1 The principle of equality of arms 254
3.2 Cross-border evidence gathering within the EU 256
3.2.1 Independent investigations by the defence 256
3.2.2 The ability to request international cooperation 257
3.2.3 The execution of a request for international cooperation 259
3.2.4 The future of cross-border evidence gathering: the European Investigation Order 260
4 A new approach to the position of the defence in relation to cross-border evidence gathering? 261
4.1 A system in conformity with the principle of equality of arms 261
4.2 The challenges in the current system of cross-border evidence gathering 262
4.3 The need for an EU solution 263
4.4 A proposal to strengthen the position of the defence in crossborder evidence gathering within the AFSJ 265
4.4.1 The criminal procedure of the ICC as an example 266
4.4.2 The proposed changes 267
4.4.2.1 A new concept of equality of arms 268
4.4.2.2 A proposal for a new directive 269
5 Summary and concluding remarks 271
Summary 273
Samenvatting 283
Bibliography 295
Table of cases 307
Table of treaties, legislation and other documents 315
Curriculum Vitae 325
Chapter 1 – Introduction
1 The research topic 1
1.1 Setting the scene: the position of the defence in international cooperation 1
1.2 The principle of equality of arms 4
1.3 The organisation of cross-border evidence gathering within the EU 5
1.4 A comparative analysis of national jurisdictions 6
1.4.1 The adversarial and the inquisitorial models 7
1.4.2 The selected national jurisdictions 9
1.5 The International Criminal Court 10
2 The research question 11
3 The methodology 11
Chapter 2 – The principle of equality of arms within the EU
1 Introduction 13
2 The ECHR 14
2.1 The right to a fair trial in Article 6 ECHR 14
2.1.1 The structure of Article 6 ECHR 14
2.1.2 The applicability of Article 6 ECHR to international cooperation in criminal matters 15
2.2 The principle of equality of arms in Article 6 ECHR 24
2.2.1 The general definition of the principle of equality of arms 25
2.2.2 The specific aspects of the principle of equality of arms 27
2.3 The principle of equality of arms in Article 6 ECHR and evidence gathering 30
2.3.1 The application of Article 6 ECHR to evidentiary matters 30
2.3.2 Evidence gathering by the defence for the preparation of a case 31
2.3.3 The examination of witnesses 34
2.3.3.1 Requesting a witness examination 35
2.3.3.2 The examination of a witness 39
2.3.4 Search and seizure 45
3 The CFR 46
3.1 The right to a fair trial in Article 47 CFR 46
3.1.1 The structure of Article 47 CFR 46
3.1.2 The relation between Article 47 CFR and Article 6 ECHR 46
3.1.3 The applicability of Article 47 CFR to international cooperation in criminal matters 49
3.2 The principle of equality of arms in Article 47 CFR 54
3.2.1 The general definition of the principle of equality of arms 55
4 A transnational principle of equality of arms within the EU? 57
5 Summary and concluding remarks 61
Chapter 3 – Cross-border evidence gathering within the EU
1 Introduction 65
2 Cross-border evidence gathering and the principle of mutual legal assistance 66
2.1 The traditional approach to international cooperation in criminal matters 66
2.1.1 The principle of mutual legal assistance 66
2.1.2 The European Convention on Mutual Assistance in Criminal Matters of 1959 67
2.2 The position of the individual: from object to subject 70
2.3 A more modern approach to international cooperation 71
2.3.1 The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 2000 73
2.3.2 The Second Additional Protocol of 2001 74
3 Cross-border evidence gathering and the principle of mutual recognition 75
3.1 International cooperation and the creation of an Area of Freedom, Security and Justice 75
3.1.1 The principle of mutual recognition 77
3.2 The protection of defence rights 80
3.2.1 Mutual trust as a prerequisite for mutual recognition 80
3.2.2 The EU legislation on defence rights pre-Lisbon 83
3.2.3 The Treaty of Lisbon: the legislation on defence rights 85
3.2.3.1 A new legal basis 85
3.2.3.2 Minimum rules for defence rights in relation to evidence gathering 89
3.3 The European Investigation Order: a new position for the defence in cross-border evidence gathering? 90
3.4 European criminal law on a supranational level: the creation of an EPPO 95
4 EU bodies and networks 98
4.1 Eurojust 99
4.2 European Judicial Network 101
4.3 An EU body for the defence? 102
5 Summary and concluding remarks 104
Chapter 4 – The Netherlands
1 Introduction 107
2 The Dutch criminal procedure 108
2.1 The nature of the criminal procedure 108
2.2 The position of the authorities in the pre-trial phase 111
2.2.1 The prosecutor and the police 111
2.2.2 The judiciary 112
2.3 The position of the defence in the pre-trial phase 114
2.4 The principle of equality of arms 117
3 Cross-border evidence gathering in Dutch criminal procedure 118
3.1 The applicable legislation 118
3.2 The national organisation 120
3.3 The position of the authorities 121
3.4 The position of the defence 123
3.4.1 Evidence gathering through international cooperation 123
3.4.2 Independent investigations by the defence 125
4 Cross-border evidence gathering: witness examinations 127
4.1 Independent investigations by the defence 127
4.2 Witness examinations through international cooperation 128
4.2.1 Making a request for witness examination 128
4.2.2 Carrying out a request for a witness examination 130
4.2.2.1 The Netherlands as the requesting State 130
4.2.2.2 The Netherlands as the requested State 132
5 Cross-border evidence gathering: search and seizure 133
5.1 Independent investigations by the defence 133
5.2 Search and seizure through international cooperation 133
5.2.1 Making a request for search and seizure 133
5.2.2 Carrying out a request for search and seizure 135
5.2.2.1 The Netherlands as the requesting State 135
5.2.2.2 The Netherlands as the requested State 135
6 The future of cross-border evidence gathering: the European Investigation Order 136
7 Summary and concluding remarks 137
Chapter 5 – England & Wales
1 Introduction 139
2 The English and Welsh criminal procedure 140
2.1 The nature of the criminal procedure 140
2.2 The position of the authorities in the pre-trial phase 143
2.2.1 The police 143
2.2.2 The prosecutor 144
2.2.3 The judiciary 146
2.3 The position of the defence in the pre-trial phase 147
2.4 The principle of equality of arms 151
3 Cross-border evidence gathering in the English and Welsh criminal procedure 153
3.1 The applicable legislation 153
3.2 The national organisation 156
3.3 The position of the authorities 157
3.4 The position of the defence 158
3.4.1 Evidence gathering through international cooperation 158
3.4.2 Independent investigations by the defence 161
4 Cross-border evidence gathering: witness examinations 163
4.1 Independent investigations by the defence 163
4.2 Witness examinations through international cooperation 164
4.2.1 Making a request for a witness examination 164
4.2.2 Carrying out a request for a witness examination 166
4.2.2.1 England or Wales as the requesting State 166
4.2.2.2 England or Wales as the requested State 169
5 Cross-border evidence gathering: search and seizure 172
5.1 Independent investigations by the defence 172
5.2 Search and seizure through international cooperation 172
5.2.1 Making a request for search and seizure 172
5.2.2 Carrying out a request for search and seizure 174
5.2.2.1 England or Wales as the requesting State 174
5.2.2.2 England or Wales as the requested State 175
6 The future of cross-border evidence gathering: the European Investigation Order 176
7 Summary and concluding remarks 177
Chapter 6 – Italy
1 Introduction 179
2 The Italian criminal procedure 180
2.1 The nature of the criminal procedure 180
2.2 The position of the authorities in the pre-trial phase 184
2.2.1 The prosecutor and the police 184
2.2.2 The judiciary 186
2.3 The position of the defence in the pre-trial phase 187
2.4 The principle of equality of arms 193
3 Cross-border evidence gathering in the Italian criminal procedure 193
3.1 The applicable legislation 193
3.2 The national organisation 195
3.3 The position of the authorities 196
3.4 The position of the defence 196
3.4.1 Evidence gathering through international cooperation 196
3.4.2 Independent investigations by the defence 198
4 Cross-border evidence gathering: witness examinations 201
4.1 Independent investigations by the defence 201
4.2 Witness examinations through international cooperation 201
4.2.1 Making a request for a witness examination 201
4.2.2 Carrying out a request for a witness examination 204
4.2.2.1 Italy as the requesting State 204
4.2.2.2 Italy as the requested State 205
5 Cross-border evidence gathering: search and seizure 206
5.1 Independent investigations by the defence 206
5.2 Search and seizure through international cooperation 206
5.2.1 Making a request for search and seizure 206
5.2.2 Carrying out a request for search and seizure 207
5.2.2.1 Italy as the requesting State 207
5.2.2.2 Italy as the requested State 207
6 The future of evidence gathering: the European Investigation Order 208
7 Summary and concluding remarks 208
Chapter 7 – The International Criminal Court
1 Introduction 211
2 The criminal procedure of the International Criminal Court 212
2.1 The nature of the criminal procedure 212
2.2 The ICC and State cooperation 215
2.3 The position of the Prosecutor in the pre-trial phase 218
2.3.1 The Office of the Prosecutor 218
2.3.2 The phase of the preliminary examination 219
2.3.3 The phase of the investigation 220
2.3.4 The phase of the confirmation hearing 225
2.3.5 The preparation phase prior to the trial proceedings 227
2.4 The position of the judiciary in the pre-trial phase 228
2.4.1 The organisation of the judiciary 228
2.4.2 The phase of the preliminary examination 228
2.4.3 The phase of the investigation by the Prosecutor 229
2.4.4 The phase of the confirmation hearing 229
2.4.5 The preparation phase prior to the trial proceedings 230
2.5 The position of the defence in the pre-trial phase 230
2.5.1 The Office of Public Counsel for the Defence 230
2.5.2 The phase of the preliminary examination 231
2.5.3 The phase of the investigation by the Prosecutor 232
2.5.4 The phase of the confirmation hearing 233
2.5.5 The preparation phase prior to the trial proceedings 241
2.6 The principle of equality of arms 241
3 Witness examinations 243
3.1 Independent investigations by the defence 243
3.2 Witness examinations through State cooperation 244
3.2.1 Making a request 244
3.2.2 Carrying out the witness examination 246
4 Search and seizure 247
4.1 Independent investigations by the defence 247
4.2 Search and seizure through State cooperation 247
4.2.1 Making a request 247
4.2.2 Carrying out a search 248
5 Summary and concluding remarks 248
Chapter 8 – The comparative analysis and conclusion
1 Introduction 251
2 The principle of equality of arms 252
3 The comparative analysis 254
3.1 The principle of equality of arms 254
3.2 Cross-border evidence gathering within the EU 256
3.2.1 Independent investigations by the defence 256
3.2.2 The ability to request international cooperation 257
3.2.3 The execution of a request for international cooperation 259
3.2.4 The future of cross-border evidence gathering: the European Investigation Order 260
4 A new approach to the position of the defence in relation to cross-border evidence gathering? 261
4.1 A system in conformity with the principle of equality of arms 261
4.2 The challenges in the current system of cross-border evidence gathering 262
4.3 The need for an EU solution 263
4.4 A proposal to strengthen the position of the defence in crossborder evidence gathering within the AFSJ 265
4.4.1 The criminal procedure of the ICC as an example 266
4.4.2 The proposed changes 267
4.4.2.1 A new concept of equality of arms 268
4.4.2.2 A proposal for a new directive 269
5 Summary and concluding remarks 271
Summary 273
Samenvatting 283
Bibliography 295
Table of cases 307
Table of treaties, legislation and other documents 315
Curriculum Vitae 325
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