3. Memorandum submitted by the Criminal
Bar Association of the Bar Council of England and Wales
The Bar Council was delighted to be invited
to meet with the House of Commons Home Affairs Committee on the
occasion of its recent visit to Brussels as part of its on-going
inquiry into JHA issues at EU level. We now have pleasure in submitting
written representations for your consideration. We have taken
the opportunity to provide a short description of several key
concepts that feature in JHA policy making, in order to put our
representations in context.
We would of course be happy to provide any further
input or assistance that the Committee would find helpful, on
this or future work.
PART I DEFINITION
OF TERMS
AND GENERAL
CONSIDERATIONS
"Mutual recognition"
1. The concept of mutual recognition is
one of the cornerstones of judicial and law enforcement cooperation
between EU Member States. It has been explicitly accepted as the
appropriate basis on which to progress this cooperation in all
JHA work programmes adopted by the Commission under the direction
of the European Council over the past seven years. The reason
for this is precisely that this principle provides the basis upon
which the Member States can retain autonomy over their criminal
law systems, safe in the knowledge that judgments and decisions
derived therefrom will be recognised (and as necessary, enforced)
by another. That is to say:
(a) That such decisions are made in accordance
with the due and proper application of legal principles as they
exist in the Member State where the judgment/decision was made.
(b) That there is confidence and trust that
the judgment/decision was made by a legislative/legal process
that is fair and meets at the least the minimum standards laid
down by the ECHR and other international instruments.
(c) That the judgment/decision will be enforced
as if it had been made by the executing Member State.
2. The concept of mutual recognition is
forged out of the principle of the comity of nations, and (within
reasonable limits) the right to self-determination. It is not
to be equated with "harmonisation" or "approximation"
of rules, on which, see below.
"Harmonisation" and "Approximation"
3. It is sometimes said that those two expressions
mean slightly different things although they tend to be used interchangeably.
4. "Harmonisation" does not necessarily
mean that rules are mirrored exactly across all Member States.
Harmonisation might have this effect, but it is more likely that
the laws of Member States will broadly correspond but they
will not be identical. The UK Misuse of Drugs Act 1971 is a good
example of harmonisation of laws on a global scale. It is in this
sense that there is harmony (ie the absence of discord) but a
unified set of rules need not exist.
5. The word "harmonisation" is
liable to mislead and for that reason we prefer to speak of "approximation"
of rules. It is sometimes said that "approximation"
is a process that falls short of achieving "harmonisation".
"Practical cooperation"
6. The expression "practical cooperation"
appears in a number of documents that pertain to JHA issues, but
it is not an expression that has a formal definition. One would
hope that all cooperation is "practical" ie that action
taken will be constructive and serve a useful purpose. It is assumed
that the expression "practical cooperation" embraces
both formal[71]
and informal arrangements (vertical and horizontal). Formal arrangements
are those that are specifically catered for in legislation, whereas
informal, or voluntary, arrangements are not. The disadvantages
of the latter include lack of transparency, accountability, and
legal authority.
7. The Commission Staff Working Document
on Strengthening Practical Cooperation in relation to the
Common European Asylum System [SEC(2006) 189; 17.2.06][72]
usefully illustrates action that states might take to improve
cooperation, for example:
(a) Formulating an action plan,
(b) Analysis and evaluation of existing legislation,
(c) Cost/benefit/merit analysis of various
systems for dealing with a particular issue,
(d) Organising Expert Groups and Workshops
[training, quality, best practices],
(e) Information sharing by creating a "common
portal" [an entry point for information],
(f) Formulating common guidelines,
(g) Address transparency, training, data
protection, etc,
(h) Provision of translation services,
(i) Setting up a network of Member State
liaison officers/contacts.
"Organised crime"
8. This expression is widely used—but
why? "Serious crime", "cross border crime"
are more precise and more readily understood. Much serious crime
(eg robbery) is not organised, and may be committed by persons
acting alone or in small groups. A less serious offence (eg burglary)
may have serious effects. The processes of investigating, prosecuting,
and sentencing might be improved were information that is held
in a foreign jurisdiction made available to the Member State where
the offending conduct took place.
Appetite for harmonisation
9. The UK is not alone in wishing to preserve
rules, customs and traditions that it cherishes: every Member
State is similarly minded.
10. There is no evidence of a popular appetite
for harmonisation greater than is necessary to provide security,
freedom and justice to citizens of the EU. Accordingly, the harmonisation
of rules within a given area of law is palatable (or at least
tolerable) where there is a demonstrable need to act, rather than
the pursuit of visionary goals. Professor John Spencer QC has
advanced a reasonable and powerful argument for the construction
of a single European prosecution system,[73]
but we do not detect popular appetite in the United Kingdom for
it (doubts remain about the merits of such a system). We also
see force in the criticism that "too much EU criminal law
policy is simply a quick and sporadic reaction to specific events"
which are then applied to other areas of law without adequate
reflection.[74]
Whether further harmonisation is desirable
11. Whether harmonisation is desirable depends
on what is at stake. In our view, there is no realistic prospect
of a European Criminal Code. Developments are likely to be piecemeal
and confined to areas where harmonisation is needed, and where
cooperation between agencies is unlikely to be effective, or where
existing arrangements have not been as successful as hoped.
12. Whilst we do not (at this stage) suggest
areas where harmonisation might be beneficial, we recognise that
some problems would be more readily resolved by harmonising rules
that produce conflicts or tensions, or which otherwise make the
desired practical cooperation and mutual recognition between Member
States unworkable (for example, problems associated with ne
bis in idem; or determining the appropriate trial venue for
those accused of cross-border crime, or even, in the longer term,
more sensitive matters of public policy such as the minimum age
of criminal responsibility).
Harmonisation and mutual recognition—linked?
13. There exists much commentary concerning
this subject. We think that it is sufficient to refute the notion
that the concepts of harmonisation and mutual recognition are
inextricably bound together or linked. There might be circumstances
in which state A recognises a decision made in state B that operates
(unlike state A) an inquisitorial system of justice, and whose
substantive law describes the underlying offence in terms markedly
different from those in State A. For example, the UK not only
meets its obligations under the two Money Laundering Directives
currently in force, but it has gone further and reduced the threshold
of mens rea from that stated in the Directives.[75]
Harmonisation would not necessarily remove all of the problems
associated with mutual recognition because local differences are
likely to remain.
14. That said, we are of the opinion that,
for Mutual Recognition to achieve its full potential, some degree
of harmonisation of the concepts on which it rests, at least as
regards cross-border cases, is inevitable. Mutual recognition
is based on mutual trust, and that trust is enhanced where there
is greater understanding of, and agreement on, underlying concepts.
Indeed, there already exist examples of this on the statute books,
most notably the European Arrest Warrant, which applies to 32
offences the definitions of which have been approximated for this
purpose.
15. We would stress that, in accepting that
some approximation of laws may be necessary to facilitate the
application of Mutual Recognition measures, we are not thereby
conceding that that approximation should also apply to purely
domestic matters, although inevitably that line will become increasingly
blurred. We consider that that approximation must first and foremost
be proportionate to, and be based on, demonstrable need, aimed
at furthering the EU's area of freedom, security and justice.
16. We are mindful of Art 29 TEU (as amended
by the Nice Treaty) which provides:
"Without prejudice to the powers of the
European Community, the Union's objective shall be to provide
citizens with a high level of safety within an area of freedom,
security and justice by developing common action among the Member
States in the fields of police and judicial cooperation in criminal
matters and by preventing and combating racism and xenophobia.
That objective shall be achieved by preventing
and combating crime, organised or otherwise, in particular terrorism,
trafficking in persons and offences against children, illicit
drug trafficking and illicit arms trafficking, corruption and
fraud, through:
— closer cooperation between police
forces, customs authorities and other competent authorities in
the Member States, both directly and through the European Police
Office (Europol), in accordance with the provisions of Articles
30 and 32,
— closer cooperation between judicial
and other competent authorities of the Member States including
— cooperation through the European
Judicial Cooperation Unit ("Eurojust"), in accordance
with the provisions of Articles 31 and 32,
— approximation, where necessary,
of rules on criminal matters in the Member States, in accordance
with the provisions of Article 31(e). "
17. Art. 31 of that Treaty provides [emphasis
supplied]:
"1. Common action on judicial cooperation
in criminal matters shall include:
(a) facilitating and accelerating cooperation
between competent ministries and judicial or equivalent authorities
of the Member States, including, where appropriate, cooperation
through Eurojust, in relation to proceedings and the enforcement
of decisions;
(b) facilitating extradition between Member
States;
(c) ensuring compatibility in rules applicable
in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction
between Member States;
(e) progressively adopting measures establishing
minimum rules relating to the constituent elements of criminal
acts and to penalties in the fields of organised crime, terrorism
and illicit drug trafficking."
18. The reference to "decisions"
in Art 31.1(a) appears wide enough to encompass many decisions,
including acquittals, and decisions that concern pre-trial and
post-trial matters.
19. Although there is an argument for saying
that Article 31.1(e) is limited to the harmonisation of penalties,[76]
we suggest that that (e) includes the constituent elements of
offences.
PART II RESPONSES
TO INQUIRY
QUESTIONS
I. Developing Practical Cooperation
20. Q.1: What benefits have accrued so
far from practical co-operation between law enforcement and judicial
authorities?
Consideration should be given to the disadvantages
of practical cooperation and not just its benefits.
BENEFITS:
— Improved evidence gathering by law
enforcement agencies;
— More effective investigations (investigations
are more thorough);
— Enhanced prospect of tackling crime
including cross-border crime;
— Improved/enhanced intelligence held
by/shared between agencies;
— More effective prosecutions or other
forms of case disposal (civil/regulatory options).
DISADVANTAGES
— Lack of regulation/unclear legal
base;
— Lack of transparency—where
are the protocols/agreements to be found by persons outside of
the agencies involved?
— Potential lack of safeguards for
persons affected by state actions in respect of systems that are
designed to promote cooperation between agencies/states;
— Lack of accountability; therefore
lack of independent scrutiny to critically examine effectiveness
and to determine whether and where there is room for improvement;
— Lack of effectiveness—given
absence of harmonisation or approximation of rules.
21. Q.2: What are the lessons of practical
co-operation for European policy and legislation?
Achieving cooperation brings into sharp relief
the differences that exist in the constitutional, legislative,
and legal processes of Member States. Cultural differences must
be kept in mind. Those differences tend to define the limit of
practical co-operation. Advancing or improving the way things
are done is achievable only where there is consensus. The upshot
is that practical cooperation between States is liable to be patchy.
There might be greater cooperation between some Member States
than others, resulting in an imbalance in the way things are done
across the EU (eg money laundering agreements have historically
been difficult to obtain in the same terms across the EU). Enlargement
to 25 Member States (soon to be 27) has increased the problem:
greater variations of systems and rules etc. However, practical
co-operation can also take the lead in shaping European policy
and legislation. In its November 2006 Report to the Council on
the review of the Hague Programme, the Finnish Presidency of the
EU expresses concern that little or no progress has been made
to implement some areas of The Hague Programme.[77]
22. Q.3: How effective is Eurojust in
spreading best practice?
There has been much praise for Eurojust in achieving
greater cooperation, offering advice and assistance, and mediating.
There are concerns about transparency, accountability, and ensuring
that the interests of third parties, suspects and defendants are
protected.
23. Q.4: In which areas does the UK government
want to advance more practical co-operation measures?
[Not applicable].
24. Q.5: What benefits does the government
see from practical co-operation over legislative solutions?
[Not applicable].
25. Q.6: What should be the role of Europol,
Interpol and Eurojust in facilitating practical co-operation?
The position of suspects, defendants and third
parties affected by state action ought to be considered. The UK
has been ready and quick to press for action in connection with
law-enforcement, but its response to EU initiatives regarding
procedural safeguards for suspects and defendants, has been disappointing
and, frankly, inexplicable on the merits.
II. Mutual recognition: development of minimum
standards
26. Q.1: In which areas is mutual recognition
currently employed (for example recognition of judicial judgements
in other member states)?
See Appendix "A".
27. Q.2: How has the principle, including
minimum standards and protocols, worked in these areas?
Our response to this question is founded largely
on anecdotal accounts but, subject to that caveat, our information
is that the EAW has proved successful in bringing persons within
the jurisdiction of the United Kingdom. That said, there remain
some concerns about the process [eg issues concerning dual criminality].
We echo the remarks of Nicola Padfield that "a policy of
`minimum rules' is clearly dangerous for the long term guarantee
of individual rights".[78]
28. Q.3: Is it an effective approach,
including in terms of cost?
The word "harmonisation" is often
misunderstood—there is a need for clarity and wider awareness
about what is meant by "harmonisation" (see above under
definitions). The word does not mean the creation of rules that
mirror each other ("carbon copies"). Harmony imports
recognition that rules might be similar in nature (as between
legal systems) but that differences exist. However, the rules
broadly correspond and differences do not constitute impediments
to mutual cooperation and/or enforcement of judgments/orders.
As stated in Part I above, for these reasons we prefer to use
the word "approximation".
29. Q.4: What are the limitations of
mutual recognition as a cornerstone of co-operation, for example
in cases such as the European Arrest Warrant where there are controversies
over dual criminality?
We have briefly addressed this issue in our
introductory remarks.
30. Q.5: What have been the successes,
and how might these be built on?
We have briefly discussed possible options in
our remarks concerning "practical cooperation" (above).
31. Q.6: What is the UK government's
position on mutual recognition as opposed to practical co-operation?
[Not applicable]
III. Current progress in and appetite for
harmonising the criminal justice system
32. Q.1: How do proposals for harmonisation
of criminal law across member states substantially differ from
mutual recognition?
See above.
33. Q.2: What are the implications for
the UK in harmonising criminal law and systems?
— An alignment of definitions of criminal
conduct (the old chestnuts are abortion and euthanasia—are
they murder?).
— Determining what conduct is to be
criminalised (this is happening anyway—eg environmental
law (though we note that this development is under the Community
Pillar)—but the efficacy of criminal sanctions is very much
open to question in academic and legal circles. We, in the United
Kingdom, have barely used the criminal sanctions for breach of
copyright although they have been available by statute for 10
years now. Breach of copyright is seen as a low priority by the
CPS in terms of resources, and essentially a civil dispute).
— The imposition of maximum and minimum
sentences for a variety of crimes—hence losing judicial
discretion (ironic, given the recent changes in the US where the
Federal Sentencing Guidelines which imposed a straitjacket on
sentencing have now been judged unconstitutional).
— Legislating a requirement to impose
pre-trial custody for some offences; or equally accepting a prohibition
on pre-trial custody for more minor offences. For example, some
countries in the EU forbid pre-trial custody where the offence
carries up to a maximum of 12 months imprisonment.
— Legislating the rationalisation of
the minimum age of criminal responsibility—currently the
age varies from seven (Ireland) to 17 (Portugal).
— The introduction of Roman law principles
of investigation (Investigating Magistrate) and evidence (eg all
hearsay is admissible—its status only goes to weight). However,
the domestic rules relating to hearsay evidence have been extensively
revised by Part 11, Chapter 2 of the Criminal Justice Act 2003:
and see the case of R v Silcock and Levin [2004] EWCA Crim
408, in the context of confiscation proceedings (such proceedings,
following conviction, are criminal in nature but aspects of civil
procedure apply to them).[79]
— Wholesale changes to rules of evidence
and to rules of procedure including the presumption of innocence.
— The introduction of a standard definition
of ne bis in idem—we have an offence-based test;
on the whole Europe (and the ECJ) favours a conduct-based test:
and see Gozutok and Brugge (2003) ECRI5689, Miraglia
[C-69/03]], Gasparini [C-467/04], Bouwens [C-272/05],
Kretzinger [C-288/05], and more recently Van Esbroeck
[C-436/04; 9th March 2006].[80]
— The introduction of a unified test
of jurisdiction over criminal matters—particularly complicated
in cross-border offences. The Commission's current Green Paper
suggests inter alia, the establishment of a new EU body
to choose the jurisdiction of trial where two or more countries
are unable to agree. Such a choice would of necessity not only
require one state (which may be short of resources, or have low
human rights priorities) to prosecute; but also forbid the second
state from prosecuting—thus impinging on sovereignty. Such
a body ought not to be established without addressing its legal
status, its independence, and its accountability.
— Legislating minimum defence safeguards
(that should not be too much problem for us, but may indeed be
very difficult for accession states with small budgets).
34. Q.3: Would particular areas benefit
from harmonisation on issues such as migration, serious crime
cases and terrorism, rather than practical co-operation or mutual
recognition?
We have briefly addressed these questions in
our introductory remarks and observations. We are willing to elaborate
if required to do so, and would welcome being consulted on a case-by-case
basis as relevant proposals arise.
IV. Process of decision-making on JHA issues
at EU level
35. Q.1: What implications might use
of the passerelle have for the UK's legal and judicial systems?
Enlargement of the EU to 25 Member States (soon
to be 27) has reduced the likelihood of reaching unanimity in
relation to third pillar measures. On many files, most notably
the proposal on procedural safeguards, this has already resulted
in progress becoming snail-like or non-existent. There is also
the risk that States that have the weakest systems and processes,
or those with a political axe to grind in a particular field,
can and do control the EU mechanism by which decisions are made.
We tentatively suggest that were a serious division
of opinion to emerge with regards to a matter of considerable
importance to a number of Member States, that some of those states
might be tempted to "go it alone". This has happened
before: the origins of JHA began with informal cooperation on
foreign policy in 1970 under the rubric of "European Political
Cooperation", and we foresee this as a possibility in the
future, if progress is not made. As for the legal base on which
that might happen, what is to stop some States forming a joint
action group and enacting corresponding domestic laws thereby
forcing the pace of change?
Indeed, some would say this fragmentation is
already starting: The Prüm Convention exists between the
Kingdom of Belgium, the Federal Republic of Germany, the Kingdom
of Spain, the French Republic, the Grand Duchy of Luxembourg,
the Kingdom of the Netherlands and the Republic of Austria. The
Convention was signed by the contracting parties in Prüm
(Germany) on 27 May 2005 and describes itself as stepping up cross-border
cooperation, particularly in combating terrorism, cross-border
crime and illegal migration. Minister Ballin described the purpose
of the Convention as follows [16 November 2006; emphasis added]:
"The Prüm Convention is viewed by the
Member States now participating as a pilot for cooperation,
particularly in relation to the exchange of information, in
preparation for European Union legislation in this area. The convention
fits within the context and the objectives of the `Hague Programme'
in the sense that it provides a foundation for the further elaboration
of the principle of availability laid down in the programme. The
convention stipulates that no later than three years after it
enters into effect, on the basis of an assessment of the experience
gained during its implementation, a legislative proposal must
be submitted with the aim of introducing the regulations of the
convention into the legal framework of the European Union. In
the meantime, the convention is in principle open to the participation
of other Member States of the European Union.
The Prüm Convention does not represent a
panacea in the field of judicial cooperation in Europe. It does
however provide a clear direction of solution for challenges with
which we are faced at EU level."
If the UK is committed to enhancing cooperation
in this field, then many of the measures proposed or envisaged
(see Annex below) must be seen as advantageous for all. That being
the case, the current Treaty arrangements are not ideal, and the
Bar would tentatively support some easing of the decision-making
process. However, we consider that activating the passerelle
as set out in Article 42 TEU is the worst solution currently on
the table. That is because it envisages the various Treaty changes,
including the move from intergovernmental to Community measures;
a switch from unanimity to QMV; no Member State right of initiative,
without providing for any "compensatory factors" as
built into the Constitutional Treaty and subject to safeguards
of the type referred to in our answer to Q.2 below.
36. Q.2: What alternative action might
improve decision-making? [see above]
Again, tentatively, we would favour either the
re-tabling of the relevant parts of the Constitutional Treaty,
or the activation of the passarelle, BUT WITH various safeguards
added on eg the emergency brake procedure; shared right of initiative
etc. However, we would wish to be consulted by HMG on the legal
and practical implications of any such proposals as and when they
are put on the table.
37. Q.3: How can transparency and accountability
at European level best be extended?
In our experience, there is now much greater
transparency than hitherto. The Commission and other institutions
of the EU must be given the credit that is due to them for improving
transparency. The Internet has clearly assisted, but this tool
depends on all relevant information and documents being put into
the public domain. A number of NGO's also act as "watch dogs".
The Commission has also held numerous Experts' meetings on many
matters relating to the criminal law, and it has produced many
working papers that are of a high standard. In recent times however,
those experts meetings have increasingly become platforms for
Member States to make their political positions clear, sometimes
at a cost to substantive debate and progress. That said, we understand
that the Commission is alive to this problem, and intends to organise
more practitioner-level workshops in the future, in tandem with
the wider "experts" meetings. We consider it essential
that EU policy in this field is informed by expertise from the
"coal face" including from practitioners such as ourselves,
as well as by academic research and government policies.
V. Internal agreements between member states
acting outside the framework of the EU
38. We have touched on this issue but this is
a matter largely outside our competence.
VI. Current Developments
39. We confine our remarks to Q.3: What are
the implications of enlargement for JHA issues, including the
impact of labour migration and confidence in new member states'
justice systems?
Enlargement, in the last few years, has been
rapid and substantial. Twenty-five Member States must now strive
to be unanimous—no mean feat. But the EU must now cater
for many more legal and legislative systems: the range of standards,
and differences between systems, is now very much greater than
it was a few years ago. Meetings are necessarily large, but time
consuming. As mentioned above, there have been anecdotal reports
that the effectiveness of some expert meetings has diminished
due to their size and lack of time to hear from NGO's. However,
aside from the plans the Commission has to remedy this, it is
arguable that the submission of carefully reasoned written representations
is another way forward.
Differences in the legal systems of Member States,
and different standards that exist across jurisdictions, must
not be minimised. Mutual recognition is rooted in confidence,
and agreement to harmonise rules is only achievable where there
is confidence that rules applied in one jurisdiction will be applied
in a corresponding fashion elsewhere. Lack of confidence undermines
cooperation, and this can only profit criminals. The temptation
to set standards at levels that enable states to reach consensus
is to be resisted in order to avoid a downward spiral that leads
to a set of irreducible minimum standards. It is with this in
mind that the CBA is disappointed that the work of the EU to secure
a meaningful Framework Decision on procedural safeguards for suspects
and defendants has not received the support it merits from Member
States.
That failure is all the more disappointing when
seen in the light of the enthusiasm with which most Member States
pursue agreement on measures in equally vital, but more populist,
fields such as the fight against terrorism. It is our view that,
to create a meaningful area of justice, freedom and security,
the one cannot exist without the other.
Appendix A
FRAMEWORK DECISIONS
AND DECISIONS
RELATING TO
JUSTICE AND
HOME AFFAIRS
MATTERS[81]
— 1-2/09/2006. General approach adopted
by the Council—"General approach on the proposal for
a Framework Decision on the [European Evidence Warrant]".[82]
— 21/11/2005. Council Decision 2005/876/JHA
on the exchange of information extracted from the criminal record.
Official Journal L 322, 09/12/2005 p 0033-0037.
— 20/9/2005. Council Decision of 20
September 2005 (2005/681/JHA) establishing the European Police
College.
— 24/02/2005. Council Framework Decision
2005/214/JHA of 24 February 2005 on the application of the principle
of mutual recognition to financial penalties. Official Journal
L 076, 22/03/2005 p 0016-0030.
— 24/02/2005. Council Framework Decision
2005/222/JHA of 24 February 2005 on attacks against information
systems. Official Journal L 069, 16/03/2005 p 0067-0071.
— 24/02/2005. Council Framework Decision
2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related
Proceeds, Instrumentalities and Property. Official Journal L 068,
15/03/2005 p 0049-0051.
— 22/12/2003. Council Framework Decision
of 22 December 2003 (2004/68/JHA) on combating the sexual exploitation
of children and child pornography, Official Journal L 013, 20/01/2004
p 0044-0048.
— 22/07/2003. Council Framework Decision
2003/568/JHA of 22 July 2003 on combating corruption in the private
sector, Official Journal L 192, 31/7/2003 p 0054-0056.
— 22/07/2003. Council Framework Decision
2003/577/JHA of 22 July 2003 on the execution in the European
Union of orders freezing property or evidence, Official Journal,
L 196, 2003 p 0045-0055.
— 18/06/2003. Council Decision 2003/659/JHA
of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust
with a view to reinforcing the fight against serious crime, Official
Journal L 245, 29/09/2003 p 0044-0046.
— 06/06/2003. Council Decision 2003/516/EC
of 6 June 2003 concerning the signature of the Agreements between
the European Union and the United States of America on extradition
and mutual legal assistance in criminal matters, Official Journal,
L 181, 19/07/2003 p 0025-0026.
— 27/01/2003. Council Framework Decision
2003/80/JHA of 27 January 2003 on the protection of the environment
through criminal law, Official Journal L 29, 05/02/2003 p 0055-0058.
— 08/05/2003. Council Decision 2003/355/JHA
of 8 May 2003 on the investigation and prosecution of genocide,
crimes against humanity and war crimes. Official Journal L 118
14/05/2003 p 0012-0014.
— 19/12/2002. Council Decision (2003/48/JHA)
on the implementation of specific measures for police and judicial
cooperation to combat terrorism in accordance with Article 4 of
Common Position 2001/931/CFSP. Official Journal L 16 22/01/2003
p 0068-0070.
— 28/11/02. Council Framework Decision
(and Council Directive 2002/90/EC) on the strengthening of the
penal framework to prevent the facilitation of unauthorised entry,
transit and residence.
— 19/7/2002. Council Framework Decision
(2002/629/JHA) on combating trafficking in human beings.
— 18/07/2002. 32002F0584. 2002/584/JHA:
Council Framework Decision of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States—Statements
made by certain Member States on the adoption of the Framework
Decision. Official Journal L 190, 18/07/2002 p 0001-0020.
— 26/06/2002. Council Decision of 13
June 2002 (2002/494/JHA) setting up a European network of contact
points in respect of persons responsible for genocide, crimes
against humanity and war crimes. Official Journal L 167, 26/06/2002
p 0001-0002.
— 13/06/2002. Council Framework Decision
of 13 June 2002 on combating terrorism. Official Journal L 164
, 22/06/2002 p 0003-0007.
— 06/03/2002. Council Decision of 28
February 2002 (2002/187/JHA) setting up Eurojust with a view to
reinforcing the fight against serious crime. Official Journal
L 063, 06/03/2002 p 0001-0013.
— 05/07/2001. Council Framework Decision
of 26 June 2001 (2001/500/JHA) on money laundering, the identification,
tracing, freezing, seizing and confiscation of instrumentalities
and the proceeds of crime. Official Journal L 182 , 05/07/2001
p 0001-0002.
— 02/06/2001. Council Framework Decision
of 28 May 2001 (2001/413/JHA) combating fraud and counterfeiting
of non-cash means of payment. Official Journal L 149, 02/06/2001
p 0001-0004.
— 22/03/2001. Council Framework Decision
of 15 March 2001 (2001/220/JHA) on the standing of victims in
criminal proceedings. Official Journal L 082, 22/03/2001 p 0001-0004.
— 14/06/2000. Council framework Decision
of 29 May 2000 on increasing protection by criminal penalties
and other sanctions against counterfeiting in connection with
the introduction of the euro. Official Journal L 140, 14/06/2000
p 0001-0003.
PROPOSALS
— 29/08/2006. COM(2006) 468 final.
Proposal for a Council framework Decision on the European supervision
order in pre-trial procedures between Member States of the
European Union. [SEC (2006) 1080]
— 29/08/2006. SEC(2006) 1079 Commission
Staff Working Document Accompanying document to the Proposal for
a Council Framework Decision on the European supervision order
in pre-trial procedures between Member States of the European
Union: Impact Assessment.
— 22/12/2005. COM(2005) 690 final.
Proposal for a Council framework Decision on the organisation
and content of the exchange of information extracted from criminal
records between Member States
— 17/03/2005. COM(2005) 91 final. Proposal
for a Council Framework decision on taking into account of
convictions in the Member States of the EU in the course of
new criminal proceedings
— 13/10/2004. COM(2004) 664 final.
Proposal for a Council Decision on the exchange of information
extracted from the criminal record.
— 28/04/2004. COM (2004) 328 final—CNS
2004/0113. Proposal for a Council framework decision on certain
procedural rights in criminal proceedings throughout the European
Union.
— 14/11/2003. COM (2003) 688.(01).
Proposal for a COUNCIL FRAMEWORK DECISION on the European Evidence
Warrant for obtaining objects, documents and data for use
in proceedings in criminal matters.
Evanna Fruithof
Rudi Fortson
22 December 2006
1. "the ne bis in idem principle,
enshrined in Article 54 of the Convention implementating the Schengen
Agreement of 14 June 1985 between the Governments of the States
of the Benelux Economic Union, the Federal Republic of Germany
and the French Republic on the gradual abolition of checks at
their common borders, signed on 19 June 1990 in Schengen, must
be applied to criminal proceedings brought in a Contracting State
for acts for which a person has already been convicted in another
Contracting State even though the Convention was not yet in force
in the latter State at the time at which that person was convicted,
in so far as the Convention was in force in the Contracting States
in question at the time of the assessment, by the court before
which the second proceedings were brought, of the conditions of
applicability of the ne bis in idem principle."
2. "Article 54 of the Convention must be
interpreted as meaning that the relevant criterion for the purposes
of the application of that article is identify of the material
acts, as understood as the existence of a set of facts which are
inextricably linked together, irrespective of the legal classification
given to them or the legal interest protected;"
Accordingly on the facts in that case, the Court
ruled that: "punishable acts consisting of exporting and
importing the same narcotic drugs and which are prosecuted in
different Contracting States to the Convention are, in principle,
to be regarded as `the same acts' for the purposes of Article
54, the definitice assessment in that respect being the task of
the competent national courts".
71 Note the terms of the proposed "Prum
Convention", and see the speech of Minister Hirsch Ballin,
Federal Minister for the Interior of the Republic of Austria,
State Secretary for the Interior of the Federal Republic of Germany,
at the Prum Seminar, 16 November 2006. Back
72
And see Informal JHA Ministerial Meeting, Tampere, 20-22 September
2006: "Next Steps in the Development of the Common European
Asylum System". See also "Combating Terrorism
and Organised Crime" [same meeting]. Back
73
See [2003] 4 Archbold News, 5. "EU Criminal
law-turning fantasy into fact? " Professor Spencer wrote:
"In principle, a properly constructed single European prosecution
system might well provide better safeguards for defendants accused
of trans-border crimes than a `horizontal' system made up of a
patchwork of independent national systems, held together by a
principle that each one recognises and enforces its neighbours'
rulings and procedural steps. Not only is it possible for defendants
to vanish down the cracks that exist between different national
systems; the same thing can happen to defendants' rights." Back
74
See "The Spread of EU Criminal Law", Nicola Padfield
and Katja Sugman, [2006] 7 Archbold News, page 5. Back
75
Proceeds of Crime Act 2002; sections 327-333. Back
76
See Steve Peers, "EU and Home Affairs Law",
Longman (2000) page 184. Back
77
"The Presidency notes that discussions in the Council have
showed it is proving difficult to move forward in the EU in areas
such as mutual recognition in criminal matters and police cooperation.
Agreement on the Commission proposal for a European evidence warrant
was reached only after extremely lengthy negotiations. No progress
has been made either in the last three years on basic minimum
standards for procedural rights applicable throughout the EU.
Discussions on a text providing for defining and condemning in
the same way throughout Europe offences of racism and xenophobia
are equally blocked for almost two years. Finally, discussions
have not progressed on a Commission proposal intended to authorise
further cross-border investigation and prosecution." [Report
on the Review of The Hague Programme, JAI 650, para 13] Back
78
See "The Spread of EU Criminal Law", Nicola Padfield
and Katja Sugman, [2006] 7 Archbold News, at p 7. Back
79
The court is entitled to receive evidence and information relevant
to determinations the court is empowered to make under confiscation
legislation: the weight of an item of information is a matter
for the court. Back
80
In Van Esbroeck, the ECJ made two important rulings on
matters of principle: Back
81
Compiling this list has not been straightforward. The list does
not pretend to be definitive. Back
82
And see the proposal, 10 July 2006; COPEN 74. Back
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