Péter POLT, PhD

Prosecutor General of Hungary

professor of law, head of

Department of Criminal Law at

National University of Public Service,

Faculty of Law Enforcement

 ABSTRACT^[1]

This paper focuses on opportunities, which simplify and widen direct cooperation in the context of the judicial cooperation of the EU. Promoting and taking into consideration these opportunities are particularly relevant now because Directive 2014/41/EU on the European Investigation Order in criminal matters have introduced a new regime of cooperation. This specifies strict case management deadlines where consultation between the issuing and executing authorities is of paramount importance. All this demands a closer synergy, so that obstacles of judicial cooperation could be swiftly eliminated. The complex system created by the EU for judicial cooperation offers various and simultaneously used communication channels for consultation and, in general, for tackling difficulties which emerge during cooperation.

The thematic focus of this paper is on two important components of networks of the judicial cooperation of the EU: namely on the strengths and opportunities of the liaison magistrates and the European Judicial Network. These integral components of these networks of cooperation, which are particularly strong in bilateral relations, were established in the second half of the 1990’s. This was the relatively early era of the judicial cooperation in criminal matters. These two components fundamentally complete and to a certain extent relieve the organizational structures functioning at supranational level. For this reason, their role and significance are undeniable even today. This paper, furthermore, underlines the significance of the EU’s network-type forms of cooperation.

1. Historical background

The liaison magistrates and the European Judicial Network as decentralized platforms were created in the development phase of cooperation in the field of justice and home affairs when the Members States within the Schengen Area faced global security challenges as a result of the abolished borders and challenges generated by new, transnational and organized crimes. The Members States of the EU had to realize that their cooperation based on the involvement of their central authorities and on bilateral or multilateral treaties and conventions regarding mutual legal assistance was slow and could not be considered effective enough without tools enhancing the execution of MLA requests. The EU has developed a new cooperation scheme to counter the common challenges that impose risks on the area of freedom, security and justice in the EU. Beyond the adoption of international conventions and legal acts enforcing the principle of mutual recognition, the EU has given a structurally network-based response. A key elements of this were the creation of platforms which create direct contacts to resolve problems arising in connection with the use of instruments and which strengthen mutual trust, the simplification of the exchange of data and information, and the coordination of activities carried out within the framework of fighting transnational, organized crimes.

The EU’s networked model relying on informal, direct contacts and ensuring flexible cooperation allows for the effective cooperation of judicial practitioners who deal with the greatest variety of aspects of the fight against transnational organized crime. This, in an innovative way, created an opportunity for combining the soft tools of diplomatic persuasion, information sharing and national-law based concrete measures.

Parallel to EU trends and processes, the Member States themselves tried to find solutions for the improvement of bilateral cooperation mainly in those fields where they frequently sought or provided legal assistance or where the significant differences between legal systems resulted in considerable delays. These efforts were strengthened by the positive experiences gained from the intensive exchange of liaison officers employed by law enforcement authorities in accordance with Article 47 of the Convention implementing the Schengen Agreement.

2. About Liaison Magistrates

This search for new solutions, in which France and Italy played a key role within the framework of the bilateral treaty adopted in 1993, led to the establishment of the position of liaison magistrates and to laying the foundations of the so-called judicial diplomacy.

In 1996 the Council of the EU formally institutionalized the position of liaison magistrates in acknowledgment of their activities carried out effectively for the acceleration of judicial cooperation procedures. By doing so, for the first time in the history of the EU, an opportunity in terms of international law was created for magistrates to perform their tasks in the interest of their Member States but within the framework of the legal system of another country. Liaison magistrates were naturally performing their tasks without having any extraterritorial jurisdiction, by fully respecting the sovereignty and territorial integrity of the receiving States.

Joint actions in the field of judicial cooperation procedures serve as framework standards for the secondment of liaison officers with special expertise. Bilateral or multilateral agreements specifying the opportunities of their cooperation need to be concluded for the employment and use of liaison magistrates. It must be realized that the positive effects of liaison activities can primarily be perceived and assessed in view of bilateral relations, in the context of the judicial contacts between the seconding and receiving States.

Liaison magistrates have a special status: during the time of their secondment they maintain their status as judges, prosecutors or magistrates but are also considered to be staff members of the embassies of the appointing States who enjoy diplomatic immunity. The dual status of theirs further strengthens their work supporting bilateral cooperation, and they generally perform their work by being “employed” by the ministries of justice in the receiving States.

They are entirely involved in the judicial system of the receiving State, which has several advantages for the Parties concerned by the cooperation. The personal relations that can be formed in this way can ensure privileged access to contacts and information which are necessary and essential for mutual legal assistance. On the other hand, their magistrate status also guarantees credibility and creates trust for judges, prosecutors and ministry officials of their receiving States whom they get in direct contact with during their cooperative work.

Their activity, which is primarily based on a proactive attitude, the application of soft tools and intervention, contribute to a large extent to the creation and reinforcement of mutual trust between the judicial authorities of the States concerned. Moreover, it contributes to the mutual and better understanding of those differences and unique features of legal systems that were formerly and most commonly treated as factors preventing cooperation. I believe that this working method can be considered as one of the greatest strengths of the system of liaison magistrates.

3. Liaison Magistrates’ Tasks

Opportunities which are available for liaison magistrates in the course of their work are specified and set forth by bilateral or multilateral treaties and conventions signed by the seconding and receiving States. The active intermediary task of liaison magistrates is usually complex.

In addition to improving the efficiency of judicial cooperation in criminal matters, their mandate may also embrace cooperation tasks relating to the field of civil law to an extent prescribed the seconding State. This diversity of tasks may also be interpreted as a further strength of liaison magistrates.

By providing information about national law and practical advice, liaison magistrates can support the drafting of well-grounded requests within the framework of assistance they give for the efficient execution of requests seeking judicial cooperation. Such assistance is not limited to specific type of criminal offences.

Liaison magistrates are suitable for this task because they well know the specific characteristics, terms and definitions of the legal system of the States concerned and they also know the differences of these legal systems which may prevent cooperation. In the preparatory phase, they may also help identifying the competent authority of the requested State that shall be contacted when it comes to cooperation.

Moreover, liaison magistrates may be involved to resolve problems arising during the execution of the requests, to remedy the deficiencies delaying the execution, to implement necessary coordination, to facilitate timely execution of the requests and to clarify misunderstandings deriving from language problems. In addition, they may also act as intermediary persons between judicial authorities concerned by the cases in order to prevent conflicts of jurisdictions.

Liaison magistrates may also represent their countries’ ministries of justice at bilateral meetings held in the territory of the receiving States. These meetings also give an opportunity for the improvement of cooperation and for sharing experiences gained while working together. Liaison magistrates’ presentations made at trainings and conferences organized by the receiving or seconding States may help to pinpoint the specific features of different legal systems and cooperation procedures. This can highly improve mutual understanding as well.

Upon the request of their ministry of justice, liaison magistrates may make comparative analysis of specific issues and topics. As they are embedded into the structure of embassies, they may complementarily be involved into the work of embassies and consular services.

4. Relationship with the EU

Having regard to the operation of the EU judicial cooperation system based on complementarity, it is essential that every actors carry out their activity coordinated in synergy. Even the bilateral level of legal base relating to the European Judicial Network^[2] provides the effective cooperation and the possibility for the liaison magistrates to connect to the EJN, and at the same time, they can operate as contact points too, according to the assignment of the Member States. The contingent duplications and overlaps can be avoided by the establishment of these interconnections for efforts in the interest of melting difficulties emerging during the cooperation.

The liaison magistrates can enter into interaction with the Eurojust operating at supranational level: liaison magistrates can suggest to their authorities that they should submit cases to the Eurojust and, at the same time, it can be important for the Eurojust the liaison magistrates seconded to third countries to be involved. The liaison magistrates system is important otherwise for the Eurojust, since it itself takes part actively in acceptance and delegation of the liaison magistrates using (in this way) the advantages from half judicial and half diplomatic nature of the mediation activity which is very similar to the national experts thereof.

5. EJN contact points

As abovementioned, the European Union thought to realize the support of the cooperation of the judicial authorities of the Member States responsible for general and serious forms of the criminality in a structure of an easy, horizontal, informal, flexible network of experts, which is acceptable for everyone. This EU intention has been realized – according to the initiation of Belgium – in establishment of the already above-referred Joint Action^[3] and later in the Council Decision^[4], which replaced the previous one.

According to these instruments, contact points of the Network were assigned among prosecutors, judges and representatives of central authorities in the Member States, attention to the special characteristics of constitutional regulations, legal traditions and inner legal assistance systems.

By our days, the EJN functions as a judicial mechanism, which aim is to promote cooperation with more than 400 assigned contact points of 28 Member States. For selecting contact points it is beneficial to pay attention to the Recommendation accepted by EJN in 2007, which determines the basic expectations for the contact points from the point of view of the operation of the Network. This shall expect professional and personal qualities furthermore quality of knowing languages.

6. Strength of EJN: Human Element

In my view, the EJN has its biggest strength in human element. The well operating contacts that are key of the operation of the judicial mechanism can be ensured by electing experts ready for cooperation and committed to it eminently. From the point of view of operating contact points it is essentially important creating personal relationship.

Besides the contact points the representatives of authorities which take part in decentralized administration by the part of the Member States providing the presidency tasks, are invited to plenary meetings, which produces an excellent occasion for increasing awareness relating to claim for accessing the EJN.

Besides building networks the EJN plenary meetings provide forum for discussing legal and practical problems emerging in the context of judicial cooperation and changing experiences that promote to build mutual trust and better understanding of specialities of each other’s legal systems of various origins.

Because of strengthening of decentralized legal assistance relationships and challenges induced by the European Investigation Order (EIO), the importance of the active intermediary work made in the frame of the EJN increases continually from the point of view of legal practitioners. The organizational framework considering the main strength of the EJN and the developed direct, flexible and at the same time transparent working method. It serves eminently the quick involvement and active contribution.

Let me underline that the EJN contact points – practicing prosecutors, judges, officers of ministries – have trusted information and experience by their everyday cooperative work and their feedbacks are precious even for EU legislation. The further strength of the EJN is that it makes connection between experts of Member States taking part in judicial cooperation and the EU decision makers and contributes correcting the application of the EU legal materials.

Since EJN contact points are committed to the EU developments they can support national legal practitioners to apply consciously new instruments building on the principle of mutual recognition and to help the easier adaptation. They are given important support to it from the Secretariat which works embedded in the organizational and financial structure of the Eurojust.

Among strengths and possibilities supporting judicial cooperation of EJN should be mentioned the website maintained by the Network, that by our days has become unavoidable in the preparation of requests relating to decentralized cooperation. Besides applying Judicial Atlas using for identification of competent authorities of the Member States, it can be mentioned the Compendium and the Judicial Library e-instruments which make possible the electronic editing of the requests aiming cooperation. The Judicial Library contains the legal base together with the declarations and reservations in one place and in thematic order. These web based instruments has fundamental importance from the viewpoint of the cooperative work of the practicing judicial professionals. But to achieve this, it is necessary maintaining information appearing on the web page in an accurate and up to date state.

A further advantage of EJN is that with the assistance of the preliminary issues relevant from the point of view of preparing cooperation requests can be quickly clarified and information regarding the relevant inner law or national case law can be obtained.

After the request for cooperation has been submitted, the EJN contact points can assist establishing direct contact with the executing judicial authority, help obtaining information on the execution of the request or expedite the execution if it is delayed.

Contact points can also provide local prosecutors and judges with other useful information related to their tasks in connection with legal assistance requests.

It must be noted that both the effectiveness of the intermediary activity of the contact points and the web-based applications have largely contributed to the special position EJN is occupying in the field of judicial cooperation in criminal matters. The success of EJN serves as a benchmark and model world-wide for other judicial networks created with the aim of criminal cooperation.

The innovative-cooperative approach, which is considered to be the strength of EJN, has facilitated the establishment of numerous agreements on cooperation with third countries, other judicial networks and partner organisations, and thus has broadened the field of cooperation with non-EU contacts.

EJN, with its strength lying within the field of bilateral relations, has to work together with other EU-organisations and agencies, in the course of which they have to try to avoid overlaps. The specific Hungarian organisational arrangements guarantee that when managing cases involving cooperation, the activity of EJN and Eurojust is highly coordinated on a national level. The EJN contact point of the prosecution service is also the national correspondent of the Hungarian national member of Eurojust and she is actively involved in the national coordination system of Eurojust. In the spirit of complementarity and consultation, the EJN contact point of the prosecution service and the Hungarian national member of Eurojust – in accordance with the provisions of the EU instruments constituting the legal basis of the two mechanisms – continuously cooperate with each other in respect of the allocation of the cases.

7. Strategic objectives

The aforesaid strengths of EJN contribute to the accomplishment of further objectives. These objectives can be reached by the effectively cooperating network members and by the judicial authorities of the Member States only if they work together.

In my view, simplifying cooperation and increasing effectiveness can be considered such strategic objectives. Joint training activities are similarly important. Widening one’s knowledge constantly is also indispensible in international cooperation. Further advantages can be gained by creating a uniform language and word usage, and these advantages lie in the fact that we all know the terms and definitions used by substantive and procedural law, and by this we build up more effective communication channels. To avoid duplications and parallel work is an objective which can be interpreted even at structural and legal level in relation to the EJN. With the help of appropriate organisational solutions and appointment to multiple functions we have to make sure that the participants of the activities of the different EU judicial structures can do their jobs at a Member State level in a well-organised, transparent and coordinated manner, avoiding duplications in case management. Finally, I underline the importance of the requirement of uniform needs assessment and exchange of information.

All these objectives seem to form a strategic framework, which will be our common task for the future.

8. Conclusions

It is both the justice administration’s and all the MS’s common interest to maintain the effective system of judicial cooperation, and it is the task of the prosecutorial and judicial leadership to ensure that the described decentralised mechanisms can fulfil their designated role in the instruments. To do so, on a national level we have to select colleagues speaking foreign languages and showing a strong commitment to cooperation.

With the help of internal organisational trainings and specific guidelines we have to improve awareness about institutions and mechanisms aiming at improving judicial cooperation within the European Union even at a national level.

The EU maintains 14 network-based cooperation at the moment.^[5] This is the kind of working method that is accepted in all 28 MS without any doubt. This kind of cooperative model strengthens the mutual confidence among European states and cooperation between professionals, vis-à-vis the hierarchic international models where mostly institutional distrust motivates the leadership. That is the reason I previously proposed the network-based EPPO too^[6].

In order to ensure the use of instruments flexibly serving cooperation, the professionals have to strengthen the proactive approach and mutual trust. In internationally related cases the use of EU assistance mechanisms should become an integral part of the measures taken, since the execution of request in due time is essential to ensure the success and timeliness of the domestic investigation and criminal procedure. I believe that with these small steps we, too, can contribute to the success of the system, which is absolutely essential and desirable for combating transnational crimes and the achievement of the common European Judicial Space.

[1] This paper is based on the presentation held on the 10th meeting of the Network of Public Prosecutors of equivalent institutions at the Supreme Judicial Courts of the Member States of the European Union, Cour de Cassation, Paris, France, 17th May 2018.

[2] Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network.

[3] 98/428/JHA: Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network.

[4] Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network.

[5] European Judicial Network in criminal matters; European Judicial Network in civil and commercial matters; Asset Recovery Offices Platform – AROs Platform; European network of contact points in respect of persons responsible for genocide and crimes against humanity; European network for the protection of public figures; Radicalisation Awareness Network (RAN); Critical Infrastructure Warning Information Network (CIWIN); European Crime Prevention Network; Informal EU network against trafficking in human beings; Network of National Experts on Joint Investigation Teams (JITs Network); Contact-point network against corruption; European Judicial Cybercrime Network (EJCN); European Network on Victims’ Rights (ENVR); European Judicial Training Network (EJTN).

[6] Polt Péter (2016): Prokuratura Evropské unie: Uřad evropského veřejného žalobce. STATNI ZASTUPITELSTVI 5: pp. 9-15. Polt Péter (2016): Die Europaische Staatsanwaltschaft-EPPO. OSTERREICHISCHE RICHTERZEITUNG 12: pp. 262-268. Polt Péter (2015): EPPO: Tendencies and Possibilities. In: Vókó György (szerk.): Tiszteletkötet Dr. Kovács Tamás 75. születésnapjára. 437 p. Budapest: Országos Kriminológiai Intézet, 2015. pp. 109-120.