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Cross-border defense in the EU
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RA
Joachim Bremer, Frankfurt und RA Norman Jacob, Würzburg
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To quote my colleague Wolfgang Bendler, one of the co-founders of the
organization EU Defense in a speech at the 25th Criminal Law Congress in
Berlin in 2001: "Criminal defense in the European legal area is a pipe
dream. It has yet to find its place within the growing integration and
cooperation in the field of criminal prosecution and substantive criminal
law."
This is on the one hand because preparing a criminal defense involves a
large number of statutes.
The already complex body of national law, in Germany such as the Law on
International Mutual Legal Assistance in Criminal Matters, multilateral
agreements like the European Extradition Convention with its numerous
additional protocols and bilateral extradition treaties, is at the same time
greatly affected by additions and restrictions in the Schengen
Implementation Treaty and national reservations to it.
The convention aspects always have to be clarified with respect to a certain
state, which often results in a confusing picture.
In the European mutual legal assistance area, for example, at least the
following have to be heeded for the surrendering of evidence under a request
from the Netherlands to the Federal Republic of Germany for mutual legal
assistance not covered by a European arrest warrant:
International treaties such as the European Convention on International
Mutual Legal Assistance in Criminal Matters, the Additional Protocol to the
European Convention on International Mutual Legal Assistance in Criminal
Matters, the Schengen Implementation Treaty, the Convention on Mutual
Assistance in Criminal Matters between the Member States of the European
Union with Additional Protocol and the various national laws such as the Law
on International Mutual Legal Assistance in Criminal Matters and
supplementary provisions, the German Constitution, internal agency
regulations; and then all the equivalents on the Dutch side.
This example makes it quite clear that both the trial and the monitoring of
its legality by the defense lawyer entail any number of problems.
The other reason why criminal defense in the European legal area is a pipe
dream is because there is no level playing field between the possibilities
available to the criminal defense and the investigation agencies.
Since the Amsterdam Convention came into force on 1 May 1999, a great deal
has changed: new forms of police and judicial cooperation, the possibility
of preliminary rulings by the European Court of Justice and the so-called
Schengen Acquis have been introduced.
Whilst remarkable harmonization effects have thus been achieved in
substantive criminal law and judicial cooperation among the member states,
not all is well when we look at EU-wide defense counsel rights.
It is understandable that criminal defense on an international scale across
the EU borders entails for more problems. For this reason, an organization
such as the ICDC is extremely important and necessary. Here, we create a
possibility for contacting and working together with expert colleagues in
questions relating to foreign law.
Just as the investigation and prosecution agencies are intensifying and
extending their international cooperation, it is also necessary that
dedicated criminal lawyers respond to this by developing a corresponding
counterweight.
Within the EU, various international investigation agencies have been
founded, some of which are less well known and so I would first like to
briefly describe these here:
1. Interpol This international criminal police organization has emerged as the most important instrument for worldwide police cooperation. The key importance lies within its international searches. Warrants can be issued to arrest, ascertain the whereabouts and secretly observe wanted persons. No doubt every defense lawyer has had dealings with Interpol when their clients have been made the subject of an international search warrant, arrested and then extradited. Within the EU over the past few years, cooperation has been conducted less via Interpol and more via the Schengen Information System (SIS). 2. Europol This European police agency began operations in The Hague in 1999 and is a successor organization to the European Drug Unit (EDU), which was set up in 1995 to tackle cross-border drugs crimes. As the European hub for police information exchange and crime analysis, Europol collects and analyses information in cases of serious cross-border crimes, such as drugs trafficking, terrorism and human trafficking, if two or more member states are involved. Currently, Europol's work is still limited to ensuring greater cooperation between the police authorities in the EU member states. It is envisaged that Europol will also take on executive powers. 3. Eurojust Eurojust, the central body for judicial cooperation based in The Hague, is a kind of parallel construction to Europol for the judicial authorities. It is regarded as an "embryo" European public prosecution service. Eurojust's goals and role are defined as follows: • promoting and improving coordination of investigations and prosecutions in the member states, • improving cooperation between the competent authorities in the member states, in particular for international mutual legal assistance, • any other support aimed at improving the effectiveness of investigations and prosecutions. 4. OLAF This European Anti-Fraud Office was set up under the auspices of the European Budget Commission. The competencies and investigation powers of OLAF correspond to those of national investigation agencies such as the Public Prosecutors Office and the police. The goal is to protect the financial interests of the European Community against fraud and irregularities, in particular misappropriation of subsidies and corruption. What defense possibilities do we have as defense lawyers in cross-border proceedings? a) Interviews by way of mutual legal assistance If an important witness lives abroad and is not willing or able to testify in the main hearing, his or her evidence can be taken on "commission". A foreign state can be requested to conduct the interview and one or more judges of the German court trying the case are present at the hearing of the witness. Increasingly there are also rights for the defense counsel to be present and correspondingly also obligations on the part the judicial authorities to notify the defense lawyer about the hearing. The defense lawyer must be notified in sufficient time so that he or she can attend. Defense lawyers must monitor compliance with the notification obligations and their rights to be present because they have to challenge the admissibility of the interview as evidence in the proceedings in good time in the event of these obligations and rights being infringed. In the past, the law of the requested state always applied. Within Europe, this is changing more and more, and the law of the requesting state is now regarded as material for conducting the interview. For the member states of the European Convention on Mutual Assistance in Criminal Matters, this has been the case since 2 February 2006. For example, the German Federal Court ruled on 15 March 2007 that an interview conducted in France was not admissible because it was carried out without the notification of the defense counsel required under German law, even though there is no such notification obligation in France. In states that have not signed the European Convention on Mutual Assistance in Criminal Matters, the law of the requested state still generally applies. For example, I experienced only at the beginning of this year that during the hearing of a witness in Turkey requested by the German court the German judges and the public prosecutor were allowed to attend but not the defense lawyer. This involved the hearing of a witness before the start of the main hearing. The fact that we were not allowed to attend was all the more surprising because in drugs cases the defense lawyer was always allowed to attend in the past. However, in this case, involving a charge of murder, the Turkish authorities refused to permit it. We immediately challenged the admissibility and will clarify the Turkish legal situation in detail with the involvement of a Turkish colleague before the start of the proceedings (in December) and then address the admissibility issue at the trial. In this context, witness rights information also plays an important role, and this also has to be monitored by the defense lawyer with respect to the requested or requesting state, because the infringement of regulations covering information about legal rights can render the interview inadmissible as evidence. And if this concerns the only or most important incriminating evidence, this can be the crucial point for finding the defendant guilty or not guilty. Interviews "on commission" can also be conducted at the consulate of the requesting state if the witness is willing to appear there. In this case, the law of the requesting state would apply. For example, a few years ago I was present at a hearing of a witness in a major drugs case at the German Consulate in Johannesburg/South Africa. Since it is possible in Germany to have the costs for the defense counsel's participation borne by the state, as the defense lawyer it would be too much to miss the opportunity of such a trip (in this particular case a week in South Africa) at the state's expense - it goes without saying, of course, that the content of the interviews is the paramount concern. German law was applied for conducting the interview. There are also increasing possibilities in Germany for conducting an audio-visual interview. Here, the witness is questioned in his or her home country by all the parties present in the German court. The witness sees the person asking the questions on a screen, and the witness appears on a screen in the courtroom. In the Turkish murder case I mentioned earlier, the court intends to apply this method for the main hearing in Germany. Altogether, some 15 witnesses in Turkey have to be heard, and practically all of them will be questioned using such an audio-visual technique. b) Inter-state protection against double jeopardy Under the Schengen Convention, a person sentenced (or found not guilty) in a EU member state may be not prosecuted for the same facts in another member state; provided that the trial has been finally disposed of, the sanction has already been enforced, is being enforced or it can no longer be enforced under the law of the sentencing state. There is some dispute about what constitutes "finally disposed of" in this sense. Under the most restrictive interpretation, a no longer appealable court verdict is definitely required, under the broadest interpretation any final disposal would suffice. Unmistakable clarification in statutory form is greatly needed because there are any number of ways of finally disposing of proceedings in practice! Only a clear definition will enable the purpose of Art. 54 of the Schengen Implementation Treaty to be achieved, namely expanding the blocking effect of a disposing act under the national law of the first prosecuting state to the entire Schengen legal area. Currently the application of Art. 54 Schengen Implementation Treaty is shaped by the decisions handed down by the European Court of Justice. In 2003 and 2006, the European Court of Justice ruled that non-judicial decisions can also suffice. Hence if the Public Prosecutors Office decides to drop proceedings once the defendant has complied with certain conditions, the protection against double jeopardy would come into play. In Germany, the Public Prosecutors Office can impose a condition (e.g. making a donation to a non-profit organization) and then definitively drop the proceedings once this condition has been honored. This is possible for misdemeanors, but not for felonies. Then, the defendant can no longer be prosecuted within the EU member states for that offence. In an extreme case, this offers the following defense possibility: the client in Germany is accused of an offence, the proceedings are being conducted abroad and the offence is also punishable in Germany. A severe sentence may be imposed abroad. The defense lawyer then reports the client to the Public Prosecutors Office in Germany and in negotiations with the Public Prosecutors Office agrees that the proceedings be dropped subject to a monetary condition. Once the money has been paid, the proceedings are definitively dropped in Germany and the client can no longer be prosecuted abroad for the same facts. This shows just how much can be achieved by a creative defense counsel, especially in cases with international aspects, in which legal precedents are still very much in the making. The European Court of Justice has expressly ruled that Art. 54 Schengen Implementation Treaty also applies to an unappealable not guilty verdict under the statute of limitations. However, in a 2005 ruling the European Court of Justice clarified that Art. 54 Schengen Implementation Treaty does not apply to proceedings dropped by a non-judicial decision. c) Extradition The cases of extradition after arrest abroad under an Interpol warrant also offer various possibilities for the defense. First of all, you have to check whether reciprocity is ensured, i.e. that the requesting state would also extradite in the same case. Then you have to check whether the offence for which extradition is requested is punishable in both states. Also relevant is the extraditability, i.e. extradition is not permitted for petty cases. Furthermore, extradition is not permitted in Germany, for example, if the defendant would face the death sentence in the requesting state - unless the state gives a binding promise that this sentence will not be imposed or enforced. Nor is extradition allowed in the case of a sentence or other disposal of the proceedings for the same facts, as I have just described, e.g. dropping of the proceedings. In some countries , a defendant can be tried and sentenced in absentia. Here, too, extradition is not permitted in Germany. For example, some time ago I had a Colombian client who was arrested at Frankfurt International Airport. Some years earlier, he had been sentenced in absentia to 9 years imprisonment in Italy for various counts of importing cocaine. The Italian judicial authorities requested his extradition. With the involvement of Italian colleagues I was able to prove to the Higher Regional Court in Frankfurt that my client had been prosecuted in absentia, and hence his defense rights had not been sufficiently protected and that he had no rights of appeal apart from revision proceedings possible only under strict conditions. His extradition was then declared inadmissible, and my client was released. Needless to say, he returned to Colombia and will no doubt refrain from traveling abroad for the next few years. The conditions of the extradition detention may also offer a defense strategy, namely the weighting factor. Where there are inappropriate detention conditions under German law, a weighting factor can be applied to the time spent in extradition detention. For example, German clients like to flee to Spain. Before the new prison was opened in Madrid, extradition detention served in the old central prison of Carabanchel was weighted double by German courts. Imprisonment in Lebanon has even been weighted fourfold. In a case tried before Frankfurt Regional Court a few months ago, my client had been wanted under an international warrant for handling stolen art. He was arrested in Brazil and spent an year in extradition detention under terrible conditions. Four months after being returned to Germany, he was sentenced to 3 years and 3 months imprisonment. On account of the detention conditions, which we proved to the court, the extradition detention was weighted 1 : 2.5. This meant that because of the extradition detention 2 1/2 years were deemed already served, then there were the 4 months pre-trial detention in Germany, which also had to be taken into consideration. Thus, more than two thirds of the imposed sentence had been served, and my client was immediately released after the sentence was handed down. In such cases, it is also very important to document the extradition detention conditions. This can be done, for example, either by involving foreign colleagues and submitting their reports or by obtaining reports from the pertinent consulate. Since however authorities always tend to depict the detention conditions as not so serious, caution is advised about obtaining opinions from consulates. In this specific case, we were able to obtain photographs of the extradition detention depicting my client. This enabled us to present to the court the state of the cells and the extradition prison in detailed pictures. With respect to Germany, it should be noted that where prosecution is barred by the statute of limitations under German law for an offence falling within German jurisdiction, a German citizen cannot be extradited under a European arrest warrant to another member state even if prosecution is not yet time barred under the law of that member state (German Supreme Court ruling of April 2008). I hope this has provided a rough overview of the possibilities of cross-border defense for us defense lawyers in the EU. I also hope to learn more in the discussions at this conference about this topic outside the EU and would suggest that it could be made the subject of a future conference so that other participants from other countries can report on their experiences and the possibilities available there. And now a brief look into the future: As I mentioned at the beginning, we still have to regard criminal defense in the European legal area as a pipe dream. This also due to the maze of statutes that have to be addressed in a cross-border case. This raises the risk of shortcomings - also on the part of the defense lawyer. A promising defense, at least in a main hearing in court, relies just as much on knowledge of the language, regional features, awareness of the mentality of witnesses and regional customs in everyday life as on how courts handle proceedings. The necessary spontaneity in a main hearing presupposes the personal interaction of a fully and well-informed defense lawyer. Therefore I strongly urge, above all under the aspect of a promising criminal defense in the interest of the client, that in (too) difficult cases we take advantage of our network and ask a colleague in the country in question for advice or help in representing our clients! We should also contribute to setting up an institution like EURODEFENSOR. This institution should be a central one, along the lines of Eurojust and financed by the EU. The actual organizers would, however, have to be national attorney or defense counsel organizations, for Germany for example the Federal Lawyers Associations. EURODEFENSOR's role would be to support and strengthen the defense in criminal prosecutions of serious cross-border crimes. For example, its work could include: · Establishing and arranging contacts among defense lawyers, · Coordinating the defense if several defense lawyers are involved and · Providing information and documents for the defense. Even if the EU has not yet managed to establish the corresponding counterweight on the defense side to match the well developed instruments on the investigation and prosecution side, it now up to us to produce this counterweight. In my opinion, our network is an ideal institution for leveling the playing field!!! |
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