19 Eurojust Annual Report 2003
| (25939)
8284/04
—
| Eurojust annual report 2003
|
| Legal base | — |
| Deposited in Parliament | 16 September 2004
|
| Department | Home Office |
| Basis of consideration | EM of 5 October 2004
|
| Previous Committee Report | None; but see (24801) 9124/03: HC 63-xxxii (2002-03), para 31 (17 September 2003)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
19.1 Eurojust is a European Union body which supports investigations
and prosecutions by Member States of serious cross-border or transnational
crime. It was established by Council Decision 2002/187/JHA[41]
and has its seat in the Hague. It is composed of one member from
each Member State, who is to be a prosecutor, judge or police
officer. The national member may be assisted by other persons.
19.2 The objectives of Eurojust are to improve coordination
between competent authorities in the Member States in relation
to investigations and prosecutions, to facilitate the execution
of requests for international mutual legal assistance and for
extradition, and otherwise to provide support in order to render
investigations and prosecutions more effective. Apart from cases
in which the assistance of Eurojust is specifically requested
by a competent authority of a Member State, Eurojust is concerned
with investigations and prosecutions involving two or more Member
States.
19.3 The type of crime with which Eurojust may be
involved is defined in Article 4 of Council Decision 2002/187/JHA
and includes crimes falling within the competence of Europol together
with computer crime, fraud and corruption and any criminal offence
affecting the European Community's financial interests, laundering
of the proceeds of crime, "environmental crime", and
participation in a criminal organisation. Eurojust may also assist
in investigations and prosecutions of other crimes at the request
of a competent authority of a Member State.
19.4 The President of Eurojust is required by Article
32 of Council Decision 2002/187/JHA to report to the Council every
year on the activities and management of Eurojust. We considered
the first such report, covering the year 2002, on 17 September
2003. The present report is for the year 2003.
The Eurojust annual report for 2003
19.5 As was the case for the report for 2002, the
main part of the annual report for 2003 is devoted to casework.
The report also notes that Eurojust moved to its permanent headquarters
in the Hague in April 2003, and describes the efforts being made
to secure cooperation with Europol and OLAF.[42]
(The report for 2002 had noted that cooperation in general and
the exchange of information in particular with OLAF and Europol
remained unsatisfactory.) A joint Eurojust/OLAF group is expected
to report in 2004 on ways of enhancing the professional relationship
between the two bodies. Work is also under way to draw up rules
of procedure on data protection, with a final draft being prepared
by mid-2004.
19.6 The report gives further detail of the handling
of a number of cases relating to serious fraud, terrorism and
trafficking in arms and drugs, where Eurojust facilitated the
carrying out of requests for mutual legal assistance. Eurojust
also helped to coordinate the exchange of information relating
to a time-share fraud in Spain involving victims in France, Germany,
Belgium, Finland and the United Kingdom. Eurojust also assisted
coordination between authorities in Spain, Romania and France
in relation to the trafficking of human beings between Romania
and Spain, and organised a programme of witness protection.
19.7 Other activities have included assistance in
handling requests for mutual legal assistance in criminal proceedings
following the sinking of the "Prestige" tanker off the
north-west coast of Spain in 2002, and in coordinating requests
for information on a bank card fraud involving a group of French
nationals operating in the Netherlands, Germany, Austria and Switzerland.
This latter group had the notable modus operandi of
posing as bank clerks to obtain details of customers' credit cards
and, by pretending to help, also obtained the PIN numbers of customers.[43]
19.8 The report notes that the number of cases dealt
with by Eurojust increased by 50% in 2003, with the main increase
being accounted for by bilateral cases. Drug trafficking and fraud
cases make up the largest categories of case dealt with by Eurojust
as a college, with the number of drug cases doubling compared
with 2002.
19.9 The report describes measures taken to prepare
for enlargement in May 2004 and the development of contacts with
third countries. The report notes that Canada, Norway, Switzerland,
Liechtenstein, the United States, Japan and the Russian Federation
have nominated contact points to work with Eurojust.
19.10 The report also records the holding of a seminar
in November 2003 to discuss the question of which authority should
prosecute in cross-border cases where more than one state has
jurisdiction. The report explains that the objective of the seminar
was to "establish some guidance which would assist Eurojust
when exercising its powers to ask one state to forgo prosecution
in favour of another state which is better placed to do so".
The outcome was a set of guidelines from the Eurojust college
which is annexed to the report.
19.11 The guidelines explain that they do not deal
with "forum shopping" (which is defined as the "arbitrary
selection of the venue for prosecution") but that this is
likely to be the subject of future discussion within Eurojust.
The guidelines suggest that prosecutors should identify each jurisdiction
where not only is a prosecution possible but also where there
is "a realistic prospect of successfully securing a conviction".
The guidelines also state that there should be a "preliminary
presumption" that a prosecution should take place in the
jurisdiction where "the majority of the criminality occurred
or where the majority of the loss was sustained". The factors
which should be considered in determining where a prosecution
should be brought include the whereabouts of the accused, the
possibilities for extradition, the attendance of witnesses and
their protection and the admissibility of evidence. The guidelines
indicate that, in cases where the crimes have been committed in
several jurisdictions, prosecutors should consider dealing with
all the prosecutions in the one jurisdiction where it is practicable
to do so.
19.12 The guidelines also indicate a number of matters
which are not to be a primary factor in allocating jurisdiction.
They state that the relative sentencing powers of the courts in
the different potential jurisdictions should not be such a primary
factor and that prosecutors should not seek to pursue cases in
a jurisdiction where the penalties are the highest, although they
should seek to ensure that the penalties available reflect the
seriousness of the criminal conduct in issue. Similarly, prosecutors
should not decide to prosecute in one jurisdiction rather than
another only because it would result in the more effective recovery
of the proceeds of crime. The guidelines go on to state that the
cost of prosecuting a case, or its impact on prosecution resources,
"should only be a factor in deciding whether a case should
be prosecuted in one jurisdiction rather than in another when
all other factors are equally balanced". They add that competent
authorities "should not refuse to accept a case for prosecution
in their jurisdiction because the case does not interest them
or is not a priority for the senior prosecutors or the Ministries
of Justice". In cases where a competent authority is reluctant
to prosecute for these reasons "Eurojust will be prepared
to consider exercising its powers to persuade the authority to
act".
The Government's view
19.13 In her Explanatory Memorandum of 5 October
2004 the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) welcomes the "success that Eurojust enjoyed
in 2003 in its core objectives of co-ordinating and supporting
national criminal investigations and prosecutions in cases of
serious organised crime involving more than one Member State".
The Minister goes on to describe the achievements of Eurojust
in establishing its infrastructure and developing relations with
other EU agencies and with third countries and welcomes the 50%
increase in the number of cases referred to Eurojust.
19.14 The Minister adds that the Government is considering
the possibility of future performance indicators for Eurojust
and notes that, since the publication of the report, Eurojust
and Europol have signed a "fully operational agreement"
allowing both parties to establish closer cooperation in the fight
against serious forms of international organised crime, and have
concluded a co-operation agreement with Norway.
19.15 The Minister makes no comment on the guidelines
for prosecutions in cross-border cases.
Conclusion
19.16 Like the previous report, the Eurojust
report for 2003 provides a valuable description of its work in
fostering cooperation in the administration of criminal justice.
19.17 When we considered the 2002 report we expressed
the concern that the role of Eurojust in coordinating investigations
and prosecutions should not become one of direction, and asked
the Minister to keep us informed of any recommendations made by
Eurojust following the analysis of its powers which it was then
carrying out. We therefore found it particularly surprising that
the Minister made no comment at all in her Explanatory Memorandum
on the guidelines which Eurojust has adopted for the exercise
of its powers to ask one prosecution authority to defer to another
in the prosecution of cross-border cases where there is a potential
conflict of jurisdiction.
19.18 We accordingly ask the Minister for the
Government's views on these guidelines, addressing in particular
the question of Eurojust's "powers" to persuade a prosecuting
authority to act or refrain from acting.
19.19 We shall hold the document under scrutiny
pending the Minister's reply.
41 OJ No. L. 63, 6.3.02, p.1. Back
42
The European Anti-Fraud Office established within the Commission. Back
43
This type of deception has become known as 'le collet Marseillais'
(literally the Marseilles snare, after the city in which it was
first noticed). Back
| 
