Stefano Ruggeri

Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings

From the contents: Multilevel Protection of Fundamental Rights in Transnational Investigations.- Cross-border Cooperation and Fundamental Rights in the European Union.- Cross-border Investigations and the Protection of Fundamental Rights. The Perspective of Domestic Legal Systems.- Transnational Inquiries and Fundamental Rights in Comparative Law.

Horizontal cooperation, obtaining evidence overseas and the respect for fundamental rights in the EU. From the European Commission’s proposals to the proposal for a directive on a European Investigation Order: Towards a single tool of evidence gathering in the EU?

Over the past several years, the European Commission and a group of eight Member States have each launched two important initiatives with the aim of introducing a new instrument for obtaining evidence from other states within the EU. While following different paths, these initiatives share the common goal of extending the logic of mutual recognition to almost every type of evidence. This article questions, by providing a comparative analysis of the two proposals, whether this approach is the most appropriate way of both enhancing mutual confidence between national authorities and ensuring adequate protection both of the national procedural cultures and the fundamental rights of the individuals involved in criminal proceedings. On the basis of this analysis, this paper contains some proposals for further legislation in the field of collection of overseas evidence in Europe.

Transnational Inquiries and the Protection of Fundamental Rights in Comparative Law. Models of Gathering Overseas Evidence in Criminal Matters

The present contribution contains a comparative analysis of this research. The comparison has been carried out combining the experiences of ten legal orders both of European and non-European countries with three international levels relating respectively to the UN, Council of Europe and EU legislation. This study focuses of two main modes of collecting overseas evidence corresponding to a wide and a narrow notion of transnational inquiries, i.e., mutual assistance and extraterritorial investigations. Within these two areas various tools of cross-border cooperation have been analyzed. Moreover, these forms of cooperation have been developed in the frame of two models, the mutual assistance and the mutual recognition model.

Introduction to the Proposal of a European Investigation Order: Due Process Concerns and Open Issues

The draft Directive on a European Investigation Order, launched by eight Member States in 2010, constitutes the last step in a long path towards the creation of a European regulation on the collection of evidence abroad. The complex structure of the proposed instrument, aimed both at conducting investigations overseas and obtaining evidence which is already in the possession of the executing State, reveals a new way of providing mutual recognition, combined with the flexibility of the MLA system. Despite its ambitious goals and the announced innovations, this instrument provides a complicated combination of fairly old solutions, which does not allow a proper balance to be achieved between the efficiency of transnational prosecution and the protection of human rights, and therefore does not satisfy the need for a fair investigative procedure in transnational cases. This introductory study provides a critical view of the main general and specific issues of the draft proposal, focusing on some due process concerns and unresolved issues of the new instrument.

Transnational Investigations and Prosecution of Cross-Border Cases in Europe: Guidelines for a Model of Fair Multicultural Criminal Justice

This study analyses the issue of transnational prosecution and investigation. It starts with the premise that transborder criminal investigations and the gathering of overseas evidence cannot be adequately dealt with independently of the assignment of the power to prosecute and adjudicate cross-border crimes. The present study analyses the solutions provided by some of the main models of international cooperation and stresses that in the European scenario, characterised by an increasingly transcultural criminal law, the choice of the forum and of the applicable criminal law cannot be left to a bargaining among the competing authorities on the basis of uncoordinated national laws. The need for legal certainty requires clear rules on the assignment of the prosecutorial power that meet the requirements inherent in the essential principles of criminal law, such as nullum crimen sine lege and nulla pena sine culpa. Moreover, in a common area of freedom, security and justice, any form of discrimination among EU citizens must be avoided. The choice of the forum pursuant to these fundamental requirements is of crucial importance for establishing both the form of conducting cross-border investigations and collecting evidence overseas, and the applicable procedural criminal law.

Harmonisation of Criminal Justice and Participatory Rights in Criminal Proceedings. New Developments in EU Law After the Lisbon Treaty

We have anticipated that the development of a broad participatory understanding of criminal proceedings by the Strasbourg case-law has influenced the evolution of EU law in criminal matters over the last two decades. The focus on defence rights as an engine of a fair criminal justice had already followed the harmonisation process of criminal procedure law that occurred under the former Third Pillar in the field of transnational cooperation among member states. Moreover, EU institutions were certainly also aware of the need to strengthen the defence rights in domestic criminal proceedings in the middle of the last decade, as the European Commission launched the proposal of a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union. Alongside specific aspects that constituted the necessary conditions for the active involvement of private parties in criminal proceedings, this proposal, for example, explicitly focused on the right to interpretation, which, in the light of the requirements set forth by the European Convention, must be of such quality as to enable the defendant’s effective participation in criminal trials. During the legislative procedure, however, this proposal faced enormous difficulties and was never adopted.

Audi alteram partem in Criminal Proceedings Under the European Convention on Human Rights

The examination of the developments that have occurred in the domestic law of the selected countries and the persistent deficiencies in both the areas of domestic and transnational criminal justice provide the basis for the subsequent discussion. At this point, the present study should now focus on the models for solutions provided by international human rights law and EU law to solve the deficiencies existing in Brazilian and Italian criminal justice in relation to the issues under examination.

Common Developments and Deficiencies of the Domestic Approach to Participatory Safeguards in Criminal Proceedings

The comparative analysis of the developments that have occurred in Italy and Brazil in order to enhance participatory safeguards for private parties in criminal proceedings highlights various common lines. As noted, the Brazilian 1941 code was largely inspired by the Italian codification of 1930. The subsequent history of both criminal justice systems was the constant (albeit not always linear) attempt to depart from this starting point and therefore from the strong inquisitorial tradition that had long characterised the Italian and Brazilian criminal procedural law. Yet Brazil is still governed by the old 1941 codification, whereas in 1988 Italy enacted a new code of criminal procedure, after the failed attempt to launch a new codification in the 1970s.

Audi alteram partem in Transnational Cases Under the American Convention

Like the European Convention, the Pact of San Jose does not contain specific provisions explicitly aimed at the protection of due process rights in transnational criminal cases. Perhaps more than in Europe, the recourse to this international Charter to protect the individuals involved in transborder inquiries constitutes a relatively recent achievement, which has been rarely analysed until now. The fact that the Inter-American case-law has only rarely been called upon to examine issues concerned with due process rights in transborder cases has contributed to this situation. Moreover, a few cases were recently raised before the Inter-American institutions, providing a basis for the examination of this problematic area.

Participatory Safeguards in Transnational Criminal Justice Under Brazilian Law

Like Italy, Brazil also does not have comprehensive rules on transnational criminal justice. Although the drafters of the 1941 code enacted a few rules on international cooperation with foreign authorities, these rules only concerned two legal assistance instruments, that is, letters rogatory and the homologation of foreign judgments. By contrast, no provision governed extradition, even though it is certainly the oldest form of judicial assistance in Brazil. Significantly, the Constitution in force at the time of the code’s enactment—namely, the 1934 Constitution—had already conferred to the Federal Supreme Tribunal jurisdiction in extradition procedures. This situation has remained largely unchanged since then and there are still no codified rules on extradition. The enactment in 1980 of a comprehensive Law on the legal status of aliens (Estatuto do Estrangeiro) certainly contributed to this result, introducing specific provisions on extradition procedures.