14 – 15May 2009
Sarajevo, Bosnia and Herzegovina
Minutes
Subject:Mutual legal assistance in the SEEPAG countries
Participants: The meeting was attended by representatives from Albania, Bosnia and Herzegovina, Bulgaria, Croatia, FYR of Macedonia, Greece, Republic of Moldova, Montenegro, Romania, Serbia, Slovenia, Turkey,EUROJUST, RCC Secretariat, DOJ/OPDAT and the SECICenter.
Opening remarks
Mr. Bozo Mihajlovic, SEEPAG Chairman,welcomed the participants to the 14th Meeting of the SEEPAG members, expressed the wish to strengthen the cooperationbetween the member states and indicated that it is necessary to see the situation at the regional level.As well, the SEEPAG Chairman greeted the presence in the meeting of the President of the Court of Bosnia and Herzegovina, the Chief Prosecutor oftheProsecutor’s Office of Bosnia and Herzegovina and the Deputy Secretary General of the RCC Secretariat.
Mr. Mihajlovic mentioned about joint activities which led to termination of organized criminal groups, detected and prosecuted thanks to the professional cooperation between the members.These results are a clear indicator of the need to move forward and further strengthen the cooperation. Mr. Mihajlovic expressed the hope that the joint investigations will become a common practice in the activities on combating crime.
The cooperation between members and an even more determined fight against transnational organized crime should be based on strengthening the participation in European judicial and police associations e.g. EUROJUST and EUROPOL.
Mr. Milorad Barasin, Chief Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina, addressed to the participants at the meeting and stressed the importance of the regional cooperation as one of the pre-conditions for EU accession. Mr. Barasin mentioned about the benefits of the SECICenter and the success of some operations conducted using SECICenter platform. Crime knows no border, no religion, no nationality and criminals use the highest technology, that is why in the fight against them the same technology and knowledge should be used.
Ms. Medzida Kreso, President of the Court of Bosnia and Herzegovina, expressed appreciation for the hard work of the prosecutors and highlighted the importance of the regional cooperation. She mentioned that most of the crimes are trans-border and that the only way to combat them is networking, bystrong ties of cooperation. As well, for countries in transition is very important to show the intention to fight organized crime.
Ms. Jelica Minic, Deputy Secretary General of the RCC Secretariat,presented some general remarkson the RCC and its Secretariat activityand mentioned thatRCC Secretariat sustains the increase of the SEEPAGcompetences, as a network of experienced prosecutors, able to provide real operational support, legal assistance, advice and guidance to SECI Center liaisons officers in the investigations of trans-border organized crime.Expected results should consist in a greater coordination of the investigating authorities of the region and increased capabilities in the conduct of concurrent international investigations.To avoid overlapping, duplication and fragmentation, RCC Secretariat will facilitate SEEPAG and PROSECO - Prosecutors’ Network in South-Eastern Europe to develop contacts and to initiate regional coordination. Consultation should start between RCC Secretariat and SEEPAG to conclude a MoU on bilateral cooperation.
Mr. Mitja Mocnik, Director of the SECI Center, presented the activities conducted by SECICenterin 2008, the outcome of some initiatives and the improvement of the SECICenteranalytical capabilities. He mentioned about a new proposal which is going to be presented at the JCC, which is to establish an Environmental Task Force, along with the other 7 Task Forces. Mr. Mocnik mentioned about the accession of Montenegro, SECICenter having now 13 member states and 19 observer countries. As well, he spoke about the relationship with Europol and the draft road map between the two organizations.Year 2008 was a significant one; cooperation was established and intensified with UN, EUBAM, UNODC, RCC, OLAF, MARRI-RC, UNICRI, and OSCE with the Control Delivery Manual)
The main issues emphasized in the countries presentations
Mr. Arqilea Koca (ALBANIA)
Rogatory letters:
-The most efficient way of cooperation between judiciaries is the rogatory letters.
-The very top of this form of cooperation is a joint investigative team, which is legally established by the Second Additional Protocol to the European Convention on MutualAssistance in Criminal Matters which entered into force on 01.02.2004.
-Diplomatic channels can be used in order to send a request for MLA, but it is not recommended.
-The rogatory letters should be addressed to the Ministry of Justice.
-The authorities which can issue a rogatory letter are the courts and the prosecution offices.
-Albania ratified the Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (ETS 099).
Extradition:
-Albania ratified the European Convention on Extradition (ETS 024) with its 2 protocols.
-Bilateral agreements are signed with: Croatia, Bosnia and Herzegovina, Romania, Slovenia and FYR of Macedonia.
-Institutions involved are Ministry of Justice (the main authority), Prosecution Office (Directorate of Foreign Affairs), Courts and Interpol Office.
-The channel of communication for extradition requests is the Ministry of Justice.
Transfer of proceedings:
-The legal framework isthe European Convention on the Transfer of Proceedings in Criminal Matters (ETS 073) and the declarations and reservations contained in the instrument of ratification.
-A transferred proceeding is a double subject activity, which means that the prosecutor has to renounce from jurisdiction of his case and also this has to be permitted by the political authority of a country, which normally is the Ministry of Justice.
Mr. Ramiz Huremagic (BOSNIA AND HERZEGOVINA)
-Bosnia and Herzegovinaratified the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters in 2007 and is in force since 01.03.2008.
-Protocols for mutual legal assistance have been signed between the Prosecutors Office of Bosnia and Herzegovina and Croatia, Serbia, Montenegro and FYR of Macedonia.
-Mr. Huremagic mentioned about some relevant provisions of the United Nations Convention against Transnational Organized Crime ratified in 2002 by Bosnia and Herzegovina.
-The traditional model of a joint investigation is that the cooperation is possible on basis of a formal request for mutual assistance.
-The most important issue in joint investigations are the arrangements of timely and effective cooperation with other countries related to criminal matters that are the subject of the investigation.
-Mr. Ramiz Huremagic presented Operation “TROKUT” (TRIANGLE) – “UNIJA” (UNION) – “INDIKATIV” and joint investigation models. As well, he underlined the distinction between joint investigations and joint investigative teams.
Mr. Tsvetomir Yosifov (BULGARIA)
-Bulgaria ratified in 2004 the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, which came into force on 01.09.2004.
-Mr. Tsvetomir Yosifovexplained the structure of the organization, which depends on the membership to EU: a Section for mutual legal assistance for countries which are members of the EU, one for the ones which are not EU member countries and one section for extradition, transfer of proceedings and European arrest warrant. The Supreme Court of Cassation is the competent authority to execute the rogatory letters from non-EU states.
-Mr.Yosifov underlined that it’s very sensitive when collecting evidences in different countries and this should be regulated.
-Bulgaria doesn’t have a bi-lateral agreement on the exchange of confidential information and protecting of data.
-As well, for example, doesn’t have an agreement with Bosnia and Herzegovina for exchanging rogatory letters and/or information/evidences.
-Mr. Yosifovencouraged the other members to use the SEEPAG channel in order to react rapidly against organized crime and also to know how to exchange in proper ways the information.
Ms. Zorka Fumic (CROATIA)
-Croatia ratified in 2007 the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters.
-In general, provisions of this Protocol are directed at the expedition of criminal legal assistance process by shortening the mutual communication but also applying new techniques and means of communication.
-The State Attorney Offices in Croatiahave the necessary technical equipment for conducting video-conferences.
-Upon consent of the interrogated person and parties, technical recording of the telephone conference may be used as evidence in the proceedings before court, only if questioning is conducted by the State Attorney.
-In order to implement the provisions of the Protocol regarding the possibility to form investigative teams, a special International Cooperation and Joint Investigations Department was established.
Mr. Ioannis Angelis(GREECE)
-Mutual legal assistance in Greece takes place on 3 levels: on national level, on bilateral and international level and on European Union level.
-The request for MLA can be done by 3 channels: Ministry of Justice, diplomatic channels or directly to contact de judicial authority.
-The Public Prosecutor’s office at the Court of Appeal is the competent judicial authority for the legal cooperation. The Ministry of Justice is the competent administrative authority to receive and transmit mutual legal requests (rogatory letters).
-A specialized department dealing with MLAs, Extraditions and European Arrest Warrants (EAWs) has been established in Athens.
-Judicial Cooperation in Criminal Matters takes place on the legal basis of the Council of Europe Conventionor according tothe Schengen Convention or in accordance with the provisions of the United Nations Conventions.
-Greecehave not yet ratified the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matter, which was signed on 08.11.2001.
Ms. Vilma Ruskovska (FYR OF MACEDONIA)
-FYR of Macedonia ratified in 2008 the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters and implemented its provisionsin the Law of Criminal Procedure.
-With the Supreme Prosecutor's Office of the Republic of Slovenia a significant collaboration and exchange of experiences was made, as well as a final adjustment of the text of the Memorandum for mutual collaboration, which was signed in 2006.
-Ms. Ruskovska mentioned about successful cooperation with SECICenter and its liaison officers.
-In the field of bilateral collaboration, FYR of Macedonia signed Memoranda for collaboration with the Prosecutor's Offices of Albania, Serbia, Montenegro and Bosnia and Herzegovina for strengthening the regional network and collaboration in the fight against human trafficking and illegal migration.
Ms. Diana Rotundu (REPUBLIC OF MOLDOVA)
-Republic ofMoldova hasn’tsigned yet the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters.
-There arebi-lateral agreementssigned with Turkey and Romania.
-Most cases are related to THB and forging and/or use of forged documents.
-The institutional dual competence is regulated in articles 536 and 540 of CPC. The General Prosecutor’s Office is competent in the case when the criminal case is at the criminal proceeding stage and the Ministry of Justice has the competence in the cases pending in the courts.
-Requests concerning international legal assistance shall be sent directly to the Ministry of Justice or the General Prosecutor’s Office as central authorities, unless otherwise provided, on reciprocity basis. Direct contacts are not permitted. The use of the diplomatic channels is not excluded.
-Ms. Rotundu presented a case in which cooperation between the SEEPAG members from Turkey, Romania and Moldova, with SECICenter as the organization which received the request and as facilitator, ended with a success.
Ms. Sonja Boskovic (MONTENEGRO)
-Montenegro ratified the European Convention onMutual Assistance in Criminal Matters and the Second Additional Protocol is in force since February 2009.
-Bi-lateral agreements are signed with Albania, Bosnia and Herzegovina, Croatia, FYR of Macedonia and Serbia.
Ms. Narcisa Kelemen (ROMANIA)
-The Convention of May 29, 2000, came into force on 1 December 2007, both in Romania and Bulgaria, allowing judicial authorities to carry out the direct transmission of requests for assistance and of procedural documents.
-The cooperation mechanisms established by the Convention from 29 of May 2000 are similar to the provisions of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, ratified by Romania in 2004.
-According to Law no. 302/2004, judicial cooperation with Romania is possible in the absence of a bilateral treaty or convention, but in accordance with international courtesy.
-The requests must be addressed as follows: to the Ministry of Justice- if the request refer to a trial, to the Prosecutor’s Office attached to the the High Court of Cassation and Justice- if the request refers to judicial cooperation and to the Ministry of Interior- if the request refer to records.
-Proposal: to prepare a list with the institutions and departments with contact details, from all member states, which are dealing with the requests for mutual legal assistance, to be available for all the SEEPAG members.
Mr. Jovan Krstic(SERBIA)
-Serbia ratified the European Convention onMutual Assistance in Criminal Matters and the Second Additional Protocol is in force since August 2007.
-Mr. Jovan Krstic mentioned about the tasks of the Focal Points, as follows:
- Drafting and overseeing of letters of request; personal delivery of ‘urgent’ enquiries, sensitive cases;
- Attending Serbian courts when witnesses give evidence via video link;
- Attending Serbian courts with visiting Serbian police to obtain evidence, take recordings, copy files etc.;
- PFP with judges to obtain evidence, advising on Serbia law to others, and vice versa.
-Mr. Krstic proposed for the future that the SEEPAG members to be as well a national contact point in Eurojust. Added that Interpol and Europol should improve the SEEPAG network.
-He affirmed that it is needed to remind the national law-makers not to narrow, not to have provisions and laws more strict than the text of the Convention.
-The grey-area of informal contacts could be cleared by signing MoU ( Serbia has concluded MoU’s with Prosecution Offices in Bosnia and Herzegovina, Croatia, Montenegro, Slovakia, Ukraine, Italy).
Mr. Mirko Vrtacnik(SLOVENIA)
-The provisions of the Criminal Procedure Act apply only to international cooperation in criminal matters with EU Non-Member States and they are being used according to the Principle of Subsidiarity – that means only if it is not provided otherwise by international agreements.
-The newest Act regulating international cooperation in the Republic of Slovenia is the Act on cooperation in Criminal Matters with the European Member States.
-Slovenia signed in 2005 the Second Additional Protocol to the European Convention onMutual Assistance in Criminal Matters.
-Cooperation with Non-EU member States or with States that are not parties of the European Convention on Mutual Assistance in Criminal Matters or its Protocols is performed in compliance with bi- and multi-lateral agreements.
-Mr.Vrtacnik presented the implementation of investigation measures such as controlled delivery and undercover operations.
-In his presentation, Mr.Vrtacnik described how to carry out: an international undercover operation, the “surveillance” and the cross-border observation.
Mr. Behcet Tufan Turan (TURKEY)
-Turkey is following the continental pattern and with the reception and codification of many European laws, legislation has become the most important source of Turkish law.
-The Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters is not yet signed.
-Turkey has signed bi-lateral agreements with Albania, Bulgaria, Croatia, FYR of Macedonia, Republic of Moldova and Romania.
-If there are not any bilateral and multilateral conventionssigned between Turkey and the other country concerned, judicial cooperation in criminal matters is governed by international customary law andtheprinciple of reciprocity.
-Turkey doesn’t have a national specific law on MLA and for transmitting a request the diplomatic channel is used. Also, there is not a General Prosecutors Office in Turkey.
-The Ministry of Justice of Turkey plays a central role in judicial co-operation at large; the General Directorate of International Law and Foreign Relations being the central authority for execution of all kinds of mutual assistance requests in criminal matters.
-The principles of reciprocity and dual criminality are not applied to the cases in the way of preventing mutual legal assistance especially with regard to the offences of drug trafficking, money laundering and financing terrorism.
-Mr. Behcet Tufan Turan mentioned the successful cases with the other SEEPAG Member Countries, using the SECICenterplatform for a rapid exchange of information.
Ms. Elena Dinu, National Representative from Romania to Eurojust alleged about the cooperation with EU member states, but also about informal ways of cooperation with the other countries which are not in the European Union and also with third bodies. Eurojust has legal personality and can enter into cooperation agreements and MoU’s with third bodies, international organizations and countries. Eurojust can issue recommendations. From the operational point of view, Eurojust supports member states and third countries by stimulating cooperation and exchange. She presented details of some coordination meetings and underlined that SEEPAG members participated in these meetings.
Mr. Virgil Ivan- Cucu, Senior Expert, Head of Justice and Home Affairs Unit, RCC Secretariatpresented the goals of the Regional Cooperation Council in the area of justice and home affairs; the key areas being: trans-border organized crime, anti-corruption, law enforcement and police cooperation, Prosecutors and Judicial Cooperation and Migration, Asylum and Refugees.
An efficient regional mechanism for cooperation among law enforcement agencies and prosecutors, in particular through SEE initiatives to fight trans-border organized crime (SECI Center), anti-corruption (RAI) together with SEE Prosecutors Advisory Group (SEEPAG) and the SEE Police Chiefs’ (SEPCA) is in place.
Mr. Cucu mentioned about project ILECU’s in which SECI Center plays a key role and about PROSECO Project, and made a parallel between SEEPAG and the Western Balkans Prosecutor’s Network (which is a temporary project financed by the EC, in 6 states).
Mr. Virgil Ivan- Cucu disclosed that SEEPAG, as the other regional organizations, is going to be invited in Brussels in front of the Committee of Ministers and that RCC will help in obtaining funds for SEEPAG (through IPA).