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Cluster 5 encompasses a (non-limitative) series of intrusive investigative measures which are currently not explicitly regulated by any of the MLA legal instruments. Because of their intrusive character, it is deemed unlikely that requested member states will execute them unless execution will be in accordance with or in the manner provided for in its national law or under conditions of double criminality, double minimum threshold or consistency with its national law. requested member states will execute them unless execution will be in

Figure 5 Cluster 5 encompasses a (non-limitative) series of intrusive investigative measures which are currently not explicitly regulated by any of the MLA legal instruments. Because of their intrusive character, it is deemed unlikely that requested member states will execute them unless execution will be in accordance with or in the manner provided for in its national law or under conditions of double criminality, double minimum threshold or consistency with its national law. requested member states will execute them unless execution will be in

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Considering the complexity of the current environment, a benchmarking framework to unravel some of the applicable regimes was developed. It does not only clarify the existing legal provisions, but also support future policy making. To create this benchmarking framework, the project team engaged in an in depth analysis of the existing legal instruments to identify the explicitly regulated investigative measures and cluster them according to the regime applicable to them. Furthermore, considering the vast amount of investigative measures which are currently not explicitly regulated, an additional analysis was performed as to the likeliness member states would attach a certain regime to them. This exercise has led to a set of six clusters, as shown on the figure below. These clusters form the backbone of the questionnaire and will be further elaborated on in the methodology section of this report. Figure 1. High level overview of the clustered investigative measures
Considering the complexity of the current environment, a benchmarking framework to unravel some of the applicable regimes was developed. It does not only clarify the existing legal provisions, but also support future policy making. To create this benchmarking framework, the project team engaged in an in depth analysis of the existing legal instruments to identify the explicitly regulated investigative measures and cluster them according to the regime applicable to them. Furthermore, considering the vast amount of investigative measures which are currently not explicitly regulated, an additional analysis was performed as to the likeliness member states would attach a certain regime to them. This exercise has led to a set of six clusters, as shown on the figure below. These clusters form the backbone of the questionnaire and will be further elaborated on in the methodology section of this report. Figure 1. High level overview of the clustered investigative measures
Figure 2. High level overview of the clustered investigative measures
Figure 2. High level overview of the clustered investigative measures
Cluster 1 Although the EEW does not cover obtaining all types of evidence, the European Commission has expressed to consider this to be the first step towards replacing the existing regime of MLA within the European Union by a single EU body of law based on MR and subject to minimum safeguards. Cluster 1 encompasses the investigative measures included in the EEW. The EEW applies to objects, documents or data obtained under various procedural powers, including seizure, production or search powers. However, the EEW is not intended to be used to initiate the interviewing of suspects, taking statements, or hearing of witnesses and victims. Taking bodily evidence from a person, in particular DNA samples, is also excluded from the scope of the EEW. Furthermore, the EEW is not intended to be used to initiate procedural investigative measures which involve obtaining evidence in real-time such as interception of communications and monitoring of bank accounts. A specific regime for cooperation on interception of communications has been established
Cluster 1 Although the EEW does not cover obtaining all types of evidence, the European Commission has expressed to consider this to be the first step towards replacing the existing regime of MLA within the European Union by a single EU body of law based on MR and subject to minimum safeguards. Cluster 1 encompasses the investigative measures included in the EEW. The EEW applies to objects, documents or data obtained under various procedural powers, including seizure, production or search powers. However, the EEW is not intended to be used to initiate the interviewing of suspects, taking statements, or hearing of witnesses and victims. Taking bodily evidence from a person, in particular DNA samples, is also excluded from the scope of the EEW. Furthermore, the EEW is not intended to be used to initiate procedural investigative measures which involve obtaining evidence in real-time such as interception of communications and monitoring of bank accounts. A specific regime for cooperation on interception of communications has been established
A scan of all MLA instruments was made in search of the conditions linked to the execution of investigative measures. As a result of this scan, explicitly regulated investigative measures were grouped according to the possibility for the requested member state to link conditions to the execution of the request. Cluster 3 to the execution of investigative measures. As a result of this scan, explicitly Cluster 3 deals with investigative measures for which the locus regit actum rule applies, either in full or to a certain degree. It brings together all the explicitly regulated investigative measures for which the requested/executing member state has the possibility to make authorization or execution dependent on execution: 1 tae « -1t$434+6@s & We ase a1
A scan of all MLA instruments was made in search of the conditions linked to the execution of investigative measures. As a result of this scan, explicitly regulated investigative measures were grouped according to the possibility for the requested member state to link conditions to the execution of the request. Cluster 3 to the execution of investigative measures. As a result of this scan, explicitly Cluster 3 deals with investigative measures for which the locus regit actum rule applies, either in full or to a certain degree. It brings together all the explicitly regulated investigative measures for which the requested/executing member state has the possibility to make authorization or execution dependent on execution: 1 tae « -1t$434+6@s & We ase a1
ure 8. Future of 32 MR offences: Double criminality in clusters 3 and 5
ure 8. Future of 32 MR offences: Double criminality in clusters 3 and 5
Figure 9. Future of 32 MR offences: Consistency issues in clusters 3
Figure 9. Future of 32 MR offences: Consistency issues in clusters 3
Figure 10. Future of 32 MR offences: Consistency issues in clusters 5
Figure 10. Future of 32 MR offences: Consistency issues in clusters 5
Figure 16. Ne bis inidem as a ground for refusal in clusters 1, 3, 5 and 6 which should logically follow the cluster 1 regime, and cluster 4, where the project team assessed that it could definitely be introduced in case introduction of it in the clusters 3, 5 and 6 would not be opposed by member states). The results are clear: the vast majority of member states indicates that execution on the basis of ne bis in idem would be refused, or that it should be possible to refuse execution on the basis of it. The overall recommendation therefore must be that the ne bis in idem principle should be enshrined throughout future (MR-based) MLA instruments between the member states as (at least an optional) ground for refusal or non-execution. Immunity from prosecution for the same facts
Figure 16. Ne bis inidem as a ground for refusal in clusters 1, 3, 5 and 6 which should logically follow the cluster 1 regime, and cluster 4, where the project team assessed that it could definitely be introduced in case introduction of it in the clusters 3, 5 and 6 would not be opposed by member states). The results are clear: the vast majority of member states indicates that execution on the basis of ne bis in idem would be refused, or that it should be possible to refuse execution on the basis of it. The overall recommendation therefore must be that the ne bis in idem principle should be enshrined throughout future (MR-based) MLA instruments between the member states as (at least an optional) ground for refusal or non-execution. Immunity from prosecution for the same facts
Figure 17. Immunity from presecution as a ground for refusal for clusters 1, 3, 4, 5 and 6 Even though wholly new as a suggested ground for refusal or non-execution, support among member states for its introduction is strikingly high. Being at 70% for the EEW cluster (and logically therefore also for cluster 2), support among member states even amounts to 80% for all other clusters. It is therefore recommended to introduce the newly suggested (optional) ground for refusal or non-execution throughout future (MR-based) MLA instruments between the member states.
Figure 17. Immunity from presecution as a ground for refusal for clusters 1, 3, 4, 5 and 6 Even though wholly new as a suggested ground for refusal or non-execution, support among member states for its introduction is strikingly high. Being at 70% for the EEW cluster (and logically therefore also for cluster 2), support among member states even amounts to 80% for all other clusters. It is therefore recommended to introduce the newly suggested (optional) ground for refusal or non-execution throughout future (MR-based) MLA instruments between the member states.
Figure 20. Immunity or privilege under national law as a ground for refusal in clusters 1, ‘ and 5 Surprisingly, when tested for the clusters 1, 3 and 5, as shown below, there is significant support among member states for keeping (cluster 1) or even introducing (clusters 3 and 5) the ground for non-execution concerned. Notwithstanding this empirical result, the project team strongly suggests redeliberation on the issue, for objectively it would be a step backwards to keep or further introduce the ground for non-execution throughout future (MR based) MLA.
Figure 20. Immunity or privilege under national law as a ground for refusal in clusters 1, ‘ and 5 Surprisingly, when tested for the clusters 1, 3 and 5, as shown below, there is significant support among member states for keeping (cluster 1) or even introducing (clusters 3 and 5) the ground for non-execution concerned. Notwithstanding this empirical result, the project team strongly suggests redeliberation on the issue, for objectively it would be a step backwards to keep or further introduce the ground for non-execution throughout future (MR based) MLA.
(Extra)territoriality principle asa ground for refusal in clusters 1, 3 and 5 ‘igure 21. (Extra)territoriality principle as a ground for refusal in clusters 1, 3 and 5
(Extra)territoriality principle asa ground for refusal in clusters 1, 3 and 5 ‘igure 21. (Extra)territoriality principle as a ground for refusal in clusters 1, 3 and 5
Figure 22. Ordre public as a ground for refusal in clusters 1, 3, 4,5 and 6
Figure 22. Ordre public as a ground for refusal in clusters 1, 3, 4,5 and 6
As explained before, and notwithstanding the empirical results shown above, the project team sees no reason for keeping the traditional orde public exception in place, as apparently the member states have already generically agreed to a more limited approach along the lines of the EEW formulation of it. Support for the new formula, as shown below, varies from 80% (clusters 3-6) to 90%, the potential of which to replace the traditional ordre public exception is thereby convincingly proven. Figure 23. Classified information as a ground for refusal in clusters 1, 3, 4, 5 and 6
As explained before, and notwithstanding the empirical results shown above, the project team sees no reason for keeping the traditional orde public exception in place, as apparently the member states have already generically agreed to a more limited approach along the lines of the EEW formulation of it. Support for the new formula, as shown below, varies from 80% (clusters 3-6) to 90%, the potential of which to replace the traditional ordre public exception is thereby convincingly proven. Figure 23. Classified information as a ground for refusal in clusters 1, 3, 4, 5 and 6
Figure 24. Political offences as a ground for refusal in clusters 3, 4, 5 and 6
Figure 24. Political offences as a ground for refusal in clusters 3, 4, 5 and 6
Figure 25. Fiscal offences as a ground for refusal in clusters 3, 4, 5 and 6
Figure 25. Fiscal offences as a ground for refusal in clusters 3, 4, 5 and 6
Figure 30. Requirement of execution within a provided deadline Questioned about deadlines relating to effective execution of requests, irrespective of the clusters, approximately half of the member states require the requested/executing member state to execute the measure concerned within a provided deadline.
Figure 30. Requirement of execution within a provided deadline Questioned about deadlines relating to effective execution of requests, irrespective of the clusters, approximately half of the member states require the requested/executing member state to execute the measure concerned within a provided deadline.
Here, the project team inclines to share the standpoint taken by the Eurojust College, i.e that, whilst recognising that it may be difficult to set a general deadline for the execution of requests for the taking of evidence, such requests should be executed as quickly as possible, and preferably within a 60 day term, with a possible extension for another 30 days in case postponement would be requested.
Here, the project team inclines to share the standpoint taken by the Eurojust College, i.e that, whilst recognising that it may be difficult to set a general deadline for the execution of requests for the taking of evidence, such requests should be executed as quickly as possible, and preferably within a 60 day term, with a possible extension for another 30 days in case postponement would be requested.
Figure 36. Compatibility of execution with the national law of the executing state Position of the persons concerned
Figure 36. Compatibility of execution with the national law of the executing state Position of the persons concerned
Figure 37. position of the persons concerned by the execution of the measure
Figure 37. position of the persons concerned by the execution of the measure
These results undeniably proof that it is worth while looking into the added value an introduction of the 32 MR offences can have in the context of requests for which the execution is inconsistent with the law of the executing member state.
These results undeniably proof that it is worth while looking into the added value an introduction of the 32 MR offences can have in the context of requests for which the execution is inconsistent with the law of the executing member state.
Furthermore it is equally encouraging that for clusters 1 and 4, member states indicated that their requests are rarely not complied with. Eurojust College indicated to be of the opinion that member s obliged to comply with requests for the taking of evidence w limits of their own law when coercive measures are necess request. Even though for the other clusters only 10% to 15% of indicated that their requests are often not complied with, it is underline the consequences thereof. Different from other M n this respect, t tates should not hich go beyond t ary to exexute t R applications, t important to again ne pe ne ne the member states ne end goal of mutual assistance is the obtaining of information/evidence to be used in the course of criminal proceedings in the issuing/requesting member state. Not complying with the formalities expressly indicated constitutes an important risk of gathering information/evidence, that will be inadmissible in the requesting/issuing member state. Efforts by the executing authority are totally useless. Therefore the importance of compliance with expressly indicated formalities cannot be underlined enough.
Furthermore it is equally encouraging that for clusters 1 and 4, member states indicated that their requests are rarely not complied with. Eurojust College indicated to be of the opinion that member s obliged to comply with requests for the taking of evidence w limits of their own law when coercive measures are necess request. Even though for the other clusters only 10% to 15% of indicated that their requests are often not complied with, it is underline the consequences thereof. Different from other M n this respect, t tates should not hich go beyond t ary to exexute t R applications, t important to again ne pe ne ne the member states ne end goal of mutual assistance is the obtaining of information/evidence to be used in the course of criminal proceedings in the issuing/requesting member state. Not complying with the formalities expressly indicated constitutes an important risk of gathering information/evidence, that will be inadmissible in the requesting/issuing member state. Efforts by the executing authority are totally useless. Therefore the importance of compliance with expressly indicated formalities cannot be underlined enough.
Figure 40. Availibility of translations of MLA/MR legislation
Figure 40. Availibility of translations of MLA/MR legislation
Figure 41. Availability of staff and training Going further when examining language-related issues in relation to MLA, the questionnaire assessed member states’ general willingness to accept requests and orders they receive from other member states, written in one of three aforementioned languages. The results of this assessment are clear; Up to 90% of the member states accept requests and orders in English, while requests and orders in French and German are not accepted by 70% of the member states. This conclusion strengthens the position to make acceptance of incoming requests/orders in English an obligation. Furthermore, member states were asked to what extent they had technically and linguistically qualified staff available to deal with the translation and processing of incoming and outgoing requests for MLA. Additionally, the questionnaire wanted to assess the extent to which technical and legal basic and specialized foreign language training for staff was available. The general situation in the responding member states is that a sufficient number of qualified staff is indeed available. However, more member states responded that not enough basic and specialized language training opportunities are in place. The obvious but important recommendation in this respect is to invest more resources in much needed language training of staff.
Figure 41. Availability of staff and training Going further when examining language-related issues in relation to MLA, the questionnaire assessed member states’ general willingness to accept requests and orders they receive from other member states, written in one of three aforementioned languages. The results of this assessment are clear; Up to 90% of the member states accept requests and orders in English, while requests and orders in French and German are not accepted by 70% of the member states. This conclusion strengthens the position to make acceptance of incoming requests/orders in English an obligation. Furthermore, member states were asked to what extent they had technically and linguistically qualified staff available to deal with the translation and processing of incoming and outgoing requests for MLA. Additionally, the questionnaire wanted to assess the extent to which technical and legal basic and specialized foreign language training for staff was available. The general situation in the responding member states is that a sufficient number of qualified staff is indeed available. However, more member states responded that not enough basic and specialized language training opportunities are in place. The obvious but important recommendation in this respect is to invest more resources in much needed language training of staff.
Figure 43. Availibility of proper translation and interpretation facilities The questionnaire also asked member states if proper translation and interpretation facilities were available to translate and interpret requests and orders from and into English, French, and/or German. English interpretation and translation facilities were most available in the responding member states, followed by German facilities and French facilities were in place the least. It is necessary to repeat that the most logical explanation for the German facilities’ upper hand on the French is the fact that many Germany-linked member states were among the responding member states.
Figure 43. Availibility of proper translation and interpretation facilities The questionnaire also asked member states if proper translation and interpretation facilities were available to translate and interpret requests and orders from and into English, French, and/or German. English interpretation and translation facilities were most available in the responding member states, followed by German facilities and French facilities were in place the least. It is necessary to repeat that the most logical explanation for the German facilities’ upper hand on the French is the fact that many Germany-linked member states were among the responding member states.
Figure 42. Willingness to accept requests/orders in English, French and/or German
Figure 42. Willingness to accept requests/orders in English, French and/or German
availibility and access to availibility and quality of availibility and quality of travel budget off-line legal technical/legal and documentation practical support
availibility and access to availibility and quality of availibility and quality of travel budget off-line legal technical/legal and documentation practical support
Figure 51. Absolute nullity for foreign evidence gathered upon request For absolute nullity, there is no difference between foreign existing evidence and evidence collected upon a request as the responses are a perfect copy. Finally, the set of questions was asked for the scenario in which a member state requests or orders information or evidence to another member state, and where the requested member state obtains this information or evidence in an unlawful or irregular manner.
Figure 51. Absolute nullity for foreign evidence gathered upon request For absolute nullity, there is no difference between foreign existing evidence and evidence collected upon a request as the responses are a perfect copy. Finally, the set of questions was asked for the scenario in which a member state requests or orders information or evidence to another member state, and where the requested member state obtains this information or evidence in an unlawful or irregular manner.
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