Horizontal model of cooperation

The horizontal model of cooperation is so far the only one that has been developed on a large scale in an international environment. The vertical cooperation model, instead, is today mainly found within one nation state’s legal system. Interestingly, the EU model is currently based on a horizontal model with increasing vertical elements.

The horizontal forms of cooperation have a long tradition in the history of classical legal assistance. The procedures of classical legal assistance are as old as the idea of nation states. With the increasing importance of public international law, judicial52

cooperation received its place in international treaties and a “legal” form in the literal sense. From a purely conventional relationship between sovereigns, it became a type of legal process. This juridification is still in progress and it was not until very recent times that a right of the individual in the legality of the procedure has been identified and recognised by law. Classical legal assistance can be seen as a role model of horizontal cooperation between sovereign states, without the interference of third actors.

Classical legal assistance has played and still plays an important role in the ambit of criminal law in Europe. Many bilateral and multilateral treaties, brought forward by the Council of Europe, have contributed to a more efficient prosecution of crimes which involve more than one European state. But notwithstanding this undoubted success, legal aid has not overcome one structural problem that lies in its nature: Being a form of horizontal cooperation between sovereign states, legal aid has always been totally dependent on these sovereign actors. It has been considered as a threat to national sovereignty and therefore made subject to many restrictions. For example, a state

Cf. also the following chapters for the m eaning and influence of the double crim inality

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requirem ent.

normally only grants legal aid if the matter concerned is punishable under its own law, too. The prosecution of offences that are a crime in one state only can53

therefore not be extended over its national borders. And, even more importantly, granting legal assistance has always been considered as a political process, which is subject to governmental control and may be refused for raisons d’état. Therefore, we always find exceptions of public policy in the treaties establishing the modes of legal assistance. The step of political control is a major hindrance not only to the granting of legal assistance as such, but also to the speediness of the process. Due to the lengthy proceeding, states often abstain from trying to solve the problem by a request of legal assistance. The duration of the process of legal assistance thus affects the state’s interest in prosecution, but also the individual’s interest in the matter being resolved within reasonable time limits.

At large, we can see that the obstacles of classical legal aid, which EU criminal procedure seeks to overcome, are inherent in a purely horizontal model of cooperation. Without external, harmonising factors, the relationship between two or more sovereign states will only be compatible up to a certain extent. In examining the „new“ modes of cooperation in the EU system of criminal procedure we therefore have to keep in mind the question of whether these are suitable to disentangle the process from its restrictions of horizontal cooperation.

Notwithstanding the experiences with the cooperation process of classical legal aid, the European legislator has not attempted to create a new system of cooperation, but instead took horizontal cooperation as the starting point of European criminal justice. This has obvious political reasons. But if it is judged from a structural point of view, it must face the same objections as the system of classical legal aid. If one leaves the responsibility with the Member States, there will still be a process of national control and an assessment of the validity of the action from the point of view of the granting state’s national legal system. This can be demonstrated simply by the structure of the process of cooperation according to the new European modes of cooperation. The basic steps remain intact: One Member State has to make a

See also Council Doc. 5573/06.

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As set in Art. 2 of the fram ework decision on the European Arrest W arrant (2002/584/JHA).

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request, and another Member State has to grant this request. Admittedly, one has tried to change terminology. Moreover, there have been numerous attempts to solve some of the problems of classical legal aid. One measure is to set exact time limits in which a request must be processed. Another means is to reduce the grounds for refusal. The adoption of such measures has certainly increased the effectiveness of cooperation.

However, the basic idea of this attempt is not to alter the structure, but to change the details of the procedure. This idea has been favourably adopted by the Nordic countries who have signed a treaty on the so-called “Nordic Arrest Warrant” on 15 December 2005, creating a procedure of surrender of suspects and convicted criminals. This attempt of the Nordic countries is in compliance with the European Arrest Warrant, but carries the ideas of shortening the procedure and diminishing the grounds for refusal further. The Nordic Arrest Warrant totally abandons the requirement of dual criminality and sets shorter time limits for the surrender of the person. Also, it does not require a minimum length of the custodial sentence.54 55

Still, the structural process of horizontal cooperation remains basically untouched by these new measures. The EU legislation, which seeks to implement the „principle of mutual recognition“, as well as the multilateral agreement between the Nordic states, which goes further in the effects, does not alter the requirement of a special, two-step procedure of request and the granting of the request, despite the terminological changes. Therefore we need to consider at least very briefly the other possibilities of cooperation in a multi-actor system of criminal prosecution.

A further step in achieving a more efficient and harmonic cooperation would be to totally abandon the two-step procedure. One would merely have to consider foreign procedural measures as equivalent to domestic ones. Thus, the validity of a foreign decision would be extended to all other Member States. The implementation of such a model would be very easy in theory: The EU would need to set down by law that all decisions of Member States' courts and prosecution authorities have to be treated as

Since this has clearly not been achieved through the European Arrest W arrant, it is

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contradictory when the Com m ission calls the im plem entation of m utual recognition through the European Arrest W arrant an “ipso facto” recognition that leads to execution “autom atically”, cf. Explanatory Mem orandum to the proposal COM(2001) 522 fin./2 points 2 and 4.5.

Since 01 January 2011 a uniform Code of Crim inal Procedure – Eidgenössische StPO – has

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com e into force.

domestic decisions without any differentiation. Such a far-reaching measure, however, is politically and practically unfeasible in a heterogeneous complex, as is the case with the European Union. Therefore, it is not considered to be of practical56

importance in the future. But nevertheless it can serve as a point of comparison. We can observe that the principle of immediate validity of every judicial decision is attained within nation states, but not on an international level.

In nation states that have a non-unitary legal system, the model of direct validity is often applied. Switzerland, for example, has a unitary substantive criminal law, but different laws of criminal procedure in the several cantons. The 26 cantons set rules as to the organisation of criminal justice, they establish the competent authorities and they set the laws of court procedure. To facilitate criminal procedure, the cantons57

have agreed on inter-cantonal treaties (so-called Konkordate, cf. esp. the Konkordat

über die Rechtshilfe und die interkantonale Zusammenarbeit in Strafsachen of

5.11.1992) that give one canton’s police the power to conduct investigations in other cantons under the requirement that these measures are legal according to its own procedural law. This means that investigators do not have to take into consideration the law of the canton where they are operating, but only the law of the canton that they belong to. This is a very far-reaching measure which was only possible because in Switzerland the laws of criminal procedure are already harmonised to a high degree. It cannot serve as a model for Europe, which is a far too heterogeneous legal space. But it shows the structural possibilities of horizontal cooperation: Taken seriously, horizontal cooperation can be as far-reaching as the Swiss model, giving the procedural measures of different states exactly the same consequence. What is needed, though, is a sufficient common basis in the law of criminal procedure, so that no major frictions will occur.

Justice and Public Order Act 1994 abolished the requirement of an endorsement of an arrest warrant. Under its section 136, arrest warrants issued in England and Wales are executable in Scotland and Northern Ireland, and vice versa. The judicial decision of one country is thus directly applicable in another country. This development may be described as changing a traditional model of recognising a foreign decision (“endorsement”) to a model of treating a foreign decision like a domestic one. Admittedly an „endorsement“ is not a procedure of equal weight and political importance as a recognition of a foreign decision in the process of classical legal aid between the Member States of the EU. However, it shows the necessity of transforming a foreign decision into a domestic one, and by abolishing the endorsement, a structural shift occurred from a restricted horizontal system to a more developed horizontal system.

The different possibilities in horizontal cooperation have shown that this way of organising criminal justice offers a lot of potential. From the lengthy procedures of classical legal aid to the direct applicability of foreign decisions, from political review to direct enforcement without further control, there are ample opportunities in models of horizontal cooperation. The comparison of different models of horizontal cooperation shows us the current position of cooperation in EU law. Cooperation on the European level has neither exhausted the full potential of horizontal cooperation, nor remained in the narrow framework of classical legal aid. But what can be seen through the analysis of horizontal cooperation is another point that is vital for any further development in this area: Without a substantive basis of common legal principles, common rules and structures, an extensive horizontal cooperation is not feasible. It is therefore not surprising that horizontal cooperation has not reached its final extent in EU criminal law. The European legislator has instead begun to introduce some forms of vertical cooperation as well, whose particularities I will now briefly examine before returning to horizontal cooperation.