Finding the Right Balance between Effective Measures and Fundamental Human Rights Guarantees

East Meets West

“…2090 Henceforward, the European Council adopted the Joint Action of 29 June 1998 on the creation of a European Judicial Network ("EJN") with the objective of creating a decentralized network of contact points, which were to play a crucial role in relation to international cooperation in criminal matters among member states. 2091 Included herein is a Joint Action on Good Practice in mutual legal assistance, promoting through said Joint Action the use of liaison magistrates and setting up so-called mutual "peer evaluation" where the first reports tackled the functioning of mutual legal assistance in Europe. 2092 The achievements of the Schengen framework could not be likewise ignored.…”

“…As Vermeulen and De Bondt surmised, these achievements were perhaps attributable to the involvement of a lesser number of member states. 2093 The Schengen Convention was applied from 1995 and implemented by measures instituted by the Executive Committee, which was created by virtue of the Schengen Convention. 2094 It must be mentioned however that the scope of cooperation was growing more than expected and was exceeding the capacity of the Schengen institutional framework in terms of a dedicated administrative staff to oversee the process.…”

“…2106 It was thought in the concepts of having a requesting state and requested state, wherein the latter retained a broad margin of appreciation on whether to give a request its due course and execution. 2107 The principle of mutual recognition, as proposed, is about acknowledging differences between the different legal and/or judicial systems of each member state and accepting them. 2108 Judicial decisions from another member state under the said principle are afforded the same effect and value as national judicial decisions "without any prior procedure needed for recognition and/or homologation."…”

“…2107 The principle of mutual recognition, as proposed, is about acknowledging differences between the different legal and/or judicial systems of each member state and accepting them. 2108 Judicial decisions from another member state under the said principle are afforded the same effect and value as national judicial decisions "without any prior procedure needed for recognition and/or homologation." 2109 It is basically grounded on mutual trust as there is renunciation on the part of the executing state of any control upon the grounds that motivate the request for evidence of the issuing state, because the executing state can trust that the requesting authorities have already checked the legality, necessity, and proportionality of the measure requested.…”

“…2126 Providing for the different types of request a member state could make, which includes, but is not limited to, taking of testimonies or statements, interceptions of communication, the formation of joint investigation teams, etc., and allowing spontaneous exchange of information without a prior request, 2127 the 2000 Convention through its 2001 Protocol does not exclude political, military, and fiscal offenses, and parties are not allowed to exclude offenses which fail to satisfy the dual criminality test or are not extraditable under their own law. 2128 It did not take long when Europe soon realized that aside from the modernization and simplification of mutual assistance, how urgently it needed to press the start button on the other endeavors laid down in the Tampere Programme. 2129 After the September 2001 attacks in the United States, the EU saw the bigger role it has to play.…”