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Maddie's Case: Eurojust, Rogatory Letters and the Home Office

What Is a Rogatory Letter?

A Letter Rogatory or Letter of Request is a formal request from a court to a foreign court for some type of judicial assistance. The most common remedies sought by Letters Rogatory are service of process and taking of evidence.

Because the jurisdiction of a court is limited to the state in which it is located, it has no power to serve documents on persons domiciled in other states. Therefore a person seeking to take an action against a person in another country will need to seek assistance from the judicial authorities in the other country. This is of course assuming the court in his own country has jurisdiction to hear the case matter.

In the case of the PJ approaching the UK, the European Convention on Mutual Assistance in Criminal Matters (CETS No. 030) stipulates that Parties agree to afford each other the widest measure of mutual assistance with a view to gathering evidence, hearing witnesses, experts and prosecuted persons, and the like. This convention "sets out rules for the enforcement of letters rogatory by the authorities of a Party ("requested Party") which aim to procure evidence (audition of witnesses, experts and prosecuted persons, service of writs and records of judicial verdicts) or to communicate the evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of another Party ("requesting Party"). The Convention also specifies the requirements that requests for mutual assistance and letters rogatory have to meet (transmitting authorities, languages, refusal of mutual assistance.

Eurojust now serves as a go-between for the transmission of rogatory letters in the case of serious crime between signed-up countries in the European Union. It speeds up the transmission process, whereas if the Party has to go through traditional country-to-country diplomatic channels, it can often take up to three months for the letters to be accepted and transmitted to the appropriate authorities, in this case, the Leicestershire Police and, no doubt, through the layers of the UK Foreign & Commonwealth Office and the UK Home Office.

What is Eurojust?

Founding of Eurojust, An Agency of the European Union

Eurojust, based in The Hague, Holland, was formed in 2002 and is composed of 27 National Members, one seconded from each member state in accordance with its legal system being a prosecutor, judge or police officer of equivalent competence. Several Member States have appointed Deputies and Assistants to help their national member. Some of the Deputies and Assistants are based in The Hague with their national member; whilst other Member States have appointed Deputies who are based in their home country. These deputies visit The Hague to substitute for their national member or when otherwise required to do so. Its role is to help European investigators and prosecutors exchange requests for information and assistance in cases of serious crime involving more than one country.

On 1 January 2007, Eurojust welcomed two new National Members from Bulgaria and Romania. On 6 November 2007, the National Members elected José Luís Lopes da Mota, who is the National Member for Portugal, as its President of the College. Raivo Sepp, National Member for Estonia, was elected Vice-President in September 2007. Michèle Coninsx, National Member for Belgium was elected Vice-President in December 2007. The College is supported by an administrative team, led by the Administrative Director, Ernst Merz.

Goals of Eurojust

Eurojust stimulates and improves the co-ordination of investigations and prosecutions between competent authorities in the Member States. Eurojust improves co-operation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests. Eurojust supports the competent authorities of the Member States in order to render their investigations and prosecutions more effective when dealing with cross border crime.

Role of Eurojust

Eurojust is the first permanent network of judicial authorities to be established anywhere in the world. Eurojust hosts meetings, with translation facilities, between investigators and prosecutors from different states dealing with individual cases and at a strategic level and specific types of criminality. Eurojust fulfils a unique role as a new permanent body in the European legal area. Its mission is to enhance the development of Europe-wide co-operation on criminal justice cases. Cross border crime has already seen a 29% increase between 2006 and 2007.

Future of Eurojust

In 2007, the European Commission proposed legislation for increasing the powers of Eurojust. The proposals include the harmonisation of the powers held by the national representatives, which currently vary, with a minimum set of powers and a minimum three year long renewable term to increase continuity. Members would also have automatic access to national databases (including DNA databases); terrorist cases; and criminal, DNA and prison records. This is to ensure states co-operate with Eurojust and to deal with the increasing number of cases under its remit. Eurojust is seen as the future of any future European Public Prosecutor's office, the creation of which is provided for under the Lisbon Treaty.

For more about the European Union's Judicial Cooperation Unit see the Eurojust and the Wikipedia websites at:

http://eurojust.europa.eu/

http://en.wikipedia.org/wiki/Eurojust

What is the Home Office obliged to do upon a formal request (Rogatory Letter)?

MUTUAL LEGAL ASSISTANCE

Since the question keeps arising as to how many working days the Home Office has in which to respond to a rogatory letter, here is the relevant information:

Number of working days the Home Office has in which to respond to a a variety of enquiries from other Member States... general enquiries about the execution for assistance within 10 working days, but upon receipt of the request where the request is marked "urgent," or within 20 working days for all other requests. Regarding requests to the UK for service of process (for summons and other procedural documents), the Home Office will usually arrange for the execution of these in 10 working days of their receipt.

Meanwhile, the European Judicial Network has studied how best these declarations could be implemented. To quote from the EU's own website: "It has found that direct contact between the requesting and the requested judicial authority can further contribute to a swift and effective execution of rogatory letters. For that purpose, the European Judicial Network has developed a cover note for rogatory letters.] By using the cover note, the requesting and the requested authorities will be able to establish direct contact on the content and/or the execution of the rogatory letter."

You can see the requirements for the rogatory letter in English and French, that is, the request for mutual legal assistance in criminal matters, at: MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS: STATEMENTS BY THE MEMBER STATES OF THE EU (PDF)

How is the Eurojust/Home Office connection relevant to the McCanns Process?


Back in 01/02/08 a 24 Hours article explained:

The Public Ministry is due today to send the final version of the rogatory letter that is destined to question the parents of Madeleine McCann and their friends again.

This will be the end of a 'soap opera' that began after a magistrate from the British Home Office unauthorized her colleague at Eurojust, the European entity which processes the interchange of judicial issues among the various countries. She demanded that the letter is sent through official channels - which means through the Portuguese Public Prosecutor's Office and the Ministry for Foreign Affairs.

José Lopes da Mota, the president of Eurojust, minimizes saying: "The letter was made with the collaboration of a representative from Eurojust. A magistrate from the Home Office decided that the legal procedures for the sending of the document had not been fulfilled and informed the colleague at Eurojust. After everything was duly analysed, we decided to request Portugal to make the letter again and to send it through official channels."

Pinto Monteiro
, the Public Prosecutor, assumes he made a wrong option: "What happened with the rogatory letters is no secret. They were with Eurojust... Some obstacles were raised by the English magistrate. The letters ended up returning, and will now be sent through the international cooperation, which depends upon this Office. They will be sent today [yesterday] or tomorrow [today]."

This is a good summary of what has happened so far:

Quote
As the second PJ rogatory letter was sent to the UK's Home Office via Eurojust in early- to mid-January 2008, it is my understanding that Jacqui Smith - having reviewed the legal document and made the decision to return it to Portugal for more work - was miffed and told the Portuguese in no uncertain terms NOT to return it via Eurojust but to submit it through the usual diplomatic channels.

That rogatory letter would now have to go back through the UK's Foreign & Commonwealth Office, then through the diplomatic service in Portugal before being forwarded to that country's Public Prosecutor, who would now have to send it on to the regional office, who in turn would have to return it to the PJ at Portamaio. Once re-formatted then the rogatory letter would have to back up the chain to the Home Office. Even after all of this, there is no guarantee that Smith would forward it to the Leicestershire Police. If she doesn't like it even on stylistic grounds, it can go back to Portomaio again.

What is worrisome in this case is that the whole process could take up to another three months before the document is finally accepted by the Home Office and forwarded to the Leicestershire Police. If you look at my original OP and later postings on this thread, these delaying tactics have been going on since August of 2007. I am astonished that the document was returned to Portugal for more work after elite jurists from both the UK and Portugal at Eurojust had worked on it in January.

I wish the media would listen to José Luis Lopes da Mota, Deputy General Prosecutor and Eurojust's National Member for the Portuguese Republic, who reported at the time that "the letter was translated and duly prepared. Two persons from Eurojust had been working on it, not in terms of the contents, but of the legal procedures, so it could be executed. One was a Portuguese jurist, the other was English. There were direct contacts with the Home Office. Unfortunately, the English understood that there were still some procedures that should be observed and demanded that the letter be sent through normal diplomatic channels, and not through Eurojust."

Note the "...demanded that the letter be sent through normal diplomatic channels, and NOT through Eurojust"! How arrogant of Jacqui Smith, when you consider the role of this agency of the European Union is to expedite legal matters between sovereign states quickly and efficiently?

Lopes da Mota went on to say that "...the case is being followed by us [at The Hague] with a lot of attention. The English could have accepted the version that we prepared, but that did not happen. They made suggestions and we transmitted them to the competent authorities. At this moment, there is a second version of the rogatory letter that is following the legal diplomatic channels... But that does not mean it's the final one. There have been cases, where we had to send three or four versions for this type of request, to be accepted. The English just asked for the letter to be reformulated, according to their right."

Back in November of 2007, Lopes da Mota noted that "England... does not renounce the right to exercise its sovereignty, especially if British citizens are involved. Everything we can do [at Eurojust] is to facilitate the procedures, avoiding the diplomatic channels that are long in delay. In urgent cases, we speed up things by directly contacting the authorities of a Member State of the EU. Our mission is to make things easier."

I think that statement says it all. Unfairly once again, the PJ have been castigated for sitting on the rogatory letter by the UK media.
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Related:

There go the letters again...
Feb 01, 2008
They were with Eurojust... Some obstacles were raised by the English magistrate. The letters ended up returning, and will now be sent through the international cooperation, which depends upon this Office. ...

Public Prosecutor’s Office is going to send rogatory letters again ...
Jan 30, 2008
The Public Prosecutor’s Office will send the rogatory letters again relative to Maddie’s case, after the British authorities raised doubts to their execution, which had been sent previously through the Eurojust, the Public Prosecutor’s ...

English tantrum delays McCanns process
Jan 31, 2008
The English have already held the letter that contains the questions that the PJ wants to be asked from the McCann family and their friends - sent by Eurojust, the European entity that is competent to establish the judicial connection ...

Is the PJ going to shelve the Madeleine case?
Feb 09, 2008
The British authorities were of the opinion that the request should be formalised directly by the Public Prosecutor Office and not via Eurojust. An official Prosecutor’s Office communication stated that it was trying to solve out a ...


2 comments:

  1. You tube. Important. The differences between......
    More vídeos there,even about Maddie..

    http://www.youtube.com/BenNeedhamAbduction

    ReplyDelete
  2. Imagine if the Portuguese dared treat the UK like this!

    Its incredible!

    ReplyDelete

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