4. Memorandum submitted by Eurojust
1. THE CURRENT
STATE OF
PROGRESS IN
DEVELOPING PRACTICAL
CO -OPERATION
BETWEEN MEMBER
STATES IN
THE JHA FIELD,
AND FUTURE OPTIONS
IN THIS AREA
(a) What benefits have accrued so far from
practical co-operation between law enforcement and judicial authorities?
What are the lessons of practical co-operation for European policy
and legislation, and how effective is Eurojust in spreading best
practice?
A(a) The European Union currently has 27
Member States, each with its own criminal justice system. With
the distinct legal systems of England and Wales, Scotland, Northern
Ireland and Gibraltar the EU justice environment includes 30 different
legal systems where the investigation and prosecution of crimes
remain a national responsibility. The increasing number of cross
border criminal cases over the past 10 years has required those
responsible for investigation and prosecution within these systems
to work together to ensure that criminals operating trans-nationally
are investigated and prosecuted effectively and that the proceeds
of their crimes are confiscated. Eurojust's Annual Reports, published
each year since the organisation came into existence in 2002,
give specific examples of cases where it has facilitated practical
co-operation and effective co-ordination between the investigating
and prosecuting authorities in the member states. Case referrals
to Eurojust have increased by at least 25% each year since 2002.
About 200 cases were referred to Eurojust in 2002 and in 2006
the figure increased to over 770. Co-ordination of these cases
has resulted in a series of linked arrests, the disruption of
transborder criminal networks and provision of assistance in cases
which otherwise were unlikely to have been resolved effectively
or at all.
Since its establishment Eurojust has regularly
brought together practitioners dealing with specialized areas
of cross border crime in each of the EU's distinct legal systems
and in a variety of roles, including police officers, customs
officers, investigating judges, magistrates and prosecutors. Building
trust and confidence across the contrasting legal systems in the
EU is a key part of arranging effective co-operation where the
powers, names, methods, rules, procedures and systems themselves
are often hugely different. Linguistic barriers can also hamper
effective co-operation. Our multilingual team and interpretation
facilities help practitioners counter this difficulty. We have
held meetings for specialist investigators and prosecutors on
terrorism, drug trafficking, human trafficking and illegal immigration,
fraud and money laundering, and VAT Carousel fraud. We also hold
regular meetings with investigators and prosecutors to exchange
information in individual cases, to prepare formal requests for
assistance in obtaining evidence and to arrange co-ordinated action
in several member states, for example to search premises, to freeze
bank accounts or assets, to make arrests etc.
Delegates attending these meetings often share
their methodology and approach. There are undoubtedly benefits
gained in such open attitudes. However circulating best practice
is not often practicable as the different legal systems can require
completely different approaches. [While practices from other member
states can be interesting they cannot always be implemented or
introduced into other legal systems.] Nonetheless Eurojust [accepts]
that in the future, after delivering on its core business of improving
the effectiveness of co-operation and co-ordination, seeking to
identify and promulgate useful ideas and practices could be beneficial
for practitioners in all member states.
As part of the exchange of information and ideas
Eurojust has hosted a series of meetings following significant
cases. For example issues around the Madrid terrorist bombings
in 2004 were explained to specialist terrorism prosecutors and
investigators from across Europe who attended a presentation made
by the Spanish investigating judge leading that enquiry. Similar
presentations were made by the Head of the Anti-Terrorist Branch
from New Scotland Yard following the London bombings in 2005 and
after the arrests made in England in 2006.
(b) In which areas does the UK government
want to advance more practical co-operation measures? What benefits
does the government see from practical co-operation over legislative
solutions?
A(b) These questions are for the UK government.
(c) What should be the role of Europol, Interpol
and Eurojust in facilitating practical co-operation?
A(c) Europol and Eurojust should work closely
together to facilitate the action of the law enforcement, prosecutorial
and judicial authorities in the member states, and elsewhere,
to help them deal effectively with serious cross border crime.
Europol and Eurojust should help to bring together the police
and legal authorities in the member states so that all available
information is available for Europol to analyse and to use and
so that Eurojust can, if needed, use its powers to request national
authorities in member states to investigate and/or prosecute,
to co-ordinate activity, to work in Joint Investigation Teams,
and otherwise act when they are reluctant to do so.
Close co-operation between Eurojust and Europol
in the EU arena is vital to ensure all investigators and prosecutors
are able to draw on the synergies from both organisations. A formal
co-operation agreement between Eurojust and Europol was signed
in June 2004 to provide a framework for this essential collaboration.
The implementation of this agreement should be reviewed [with
a view to improvement] in the next 18 months.
The national desks within both organisations
work closely together. The United Kingdom's teams at Eurojust
and Europol were the first amongst all member states to sign a
memorandum of understanding to develop closer and more practical
working arrangements. This example has been followed by a number
of other member states. In the future Eurojust and Europol should
be located, if not in the same premises, in close proximity to
each other in The Hague.
2. THE CURRENT
STATE OF
PROGRESS IN
MUTUAL RECOGNITION,
INCLUDING THE
DEVELOPMENT OF
MINIMUM STANDARDS,
ACROSS THE
EU, AND WHETHER
FURTHER STEPS
IN THIS
DIRECTION ARE
DESIRABLE
In which areas is mutual recognition currently
employed (for example recognition of judicial judgements in other
member states)?
A. The European Commission or the Council
Secretariat will be able to supply up to date information on this
subject but we understand that there are currently four Mutual
Recognition instruments in force in the EU. They are the European
Arrest Warrant (EAW), agreed in July 2002; Freezing Orders for
Property and Evidence, agreed in August 2003; Recognition of Financial
Penalties, agreed in February 2005; Confiscation Orders agreed
in October 2006.
Again the Commission or Council Secretariat
will confirm but we understand that a range of other mutual recognition
instruments are currently being considered for proposal or under
negotiation including:
— Taking into account convictions in
new proceedings.
— Sentences imposed involving deprivation
of liberty.
— The European Evidence Warrant (EEW).
— Financial penalties on road traffic
cases.
— Common disqualification measures.
— Making disqualification effective
throughout the EU.
— Settlement of conflicts of jurisdiction.
— Recognition of non-custodial pre-sentencing
measures.
How has the principle, including minimum standards
and protocols, worked in these areas? Is it an effective approach,
including in terms of cost?
Each Mutual Recognition instrument is introduced
by a Framework Decision of the Council. At present such decisions
can only be reached by unanimity. Once a Framework Decision is
reached then it has to be implemented in the national legislation
of each of the EU member states. The quality of implementation
is a key factor in operational effectiveness and the extent to
which the co-operation envisaged under the framework decision
can be delivered in practice. The European Arrest Warrant has
been extremely successful during the time it has been in existence
although its practical operation in some member states has not
been with out problems. The surrender of Mr Osman from Italy to
England in a case relating to the terrorist allegations in July
2005 is a high profile example of the successful operation of
the EAW.
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? What have been the successes, and how might
these be built on?
A. The manner of implementation of a framework
decision in the national law of member states is one of the factors
which can limit effectiveness. Inconsistent implementation means
that co-operation or co-ordination based on these instruments
may not be so quick, or so effective, as when the implementation
has been consistent with the commitment agreed in the framework
decision. It is a natural development to consider linking key
milestones in the criminal justice process and asking that those
milestones: acts or decisions, be recognised in other states.
Movement between these milestones in each system will be disparate,
given the procedures and powers required to progress an investigation,
including arrest, prosecution, trial and sentencing, and the fact
that these have been defined over centuries in each of the different
systems based on different national, social and legal cultures.
These are limiting factors.
The deadlines for action and surrender introduced
by the EAW have been very effective in reducing the time taken
for suspects to be surrendered to requesting states. The implementation
and effectiveness of the mutual recognition instruments should
be evaluated and action should be taken to improve their effectiveness.
What is the UK government's position on mutual
recognition as opposed to practical co-operation?
A. This question is for the UK government.
The current state of progress in and appetite
for harmonising criminal justice systems across the EU, and whether
further steps in this direction are desirable. How do proposals
for harmonisation of criminal law across member states substantially
differ from mutual recognition?
A. Harmonisation seeks to introduce changes
which bring the practices and procedures in different legal systems,
and so the legal systems themselves, closer to one another. For
example setting parameters for sentencing. Mutual recognition
builds on key parts of the legal process: for example actions
or decisions; which are acknowledged, recognised and where necessary
acted upon by those operating in another legal systems.
What are the implications for the UK in harmonising
criminal law and systems?
A. Harmonisation would bring more consistency
within legal systems but depending on the type and extent of harmonisation
which is negotiated may impinge upon some of the principles and
structures of the United Kingdom's common law systems. Harmonisation
would in theory also help to ease co-operation and co-ordination;
in practice it is likely that even with a good deal of harmonisation,
they will not become sufficiently compatible to remove all the
problems encountered when seeking rapid and effective co-operation.
Would particular areas benefit from harmonisation
on issues such as migration, serious crime cases and terrorism,
rather than practical co-operation or mutual recognition?
A. A combination of harmonisation in specific
crime type areas with better practical co-operation and improved
mutual recognition would add further benefits for co-operation
and co-ordination.
3. THE PROCESS
OF DECISION-MAKING
ON JHA ISSUES
AT EU LEVEL:
IN PARTICULAR,
THE EXTENT
TO WHICH
CURRENT DIFFICULTIES
IN REACHING
AGREEMENT DERIVE
FROM "THIRD
PILLAR" VOTING
PROCEDURE AND
MIGHT BE
REMEDIED BY
IMPLEMENTATION OF
THE PASSERELLE
CLAUSES IN
PREVIOUS TREATIES
What implications might use of the passerelle
have for the UK's legal and judicial systems? What alternative
action might improve decision-making? How can transparency and
accountability at European level best be extended?
A. The "passerelle" could be a
useful mechanism to improve action and accountability in judicial
co-operation in criminal matters; it could have a number of potentially
beneficial effects:
— Facilitation and acceleration of
decision-making in the Council, through the use of qualified majority
voting, putting an end to the frequent deadlocks associated with
decision-taking in criminal matters.
— An increased level of harmonisation
in the areas transferred in the first pillar. With qualified majority
voting, perhaps the differences in the Member States' legal systems
will no longer need to be taken extensively into account in order
to reach a compromise and so an agreement.
— An increased role for the European
Parliament to be a co-decision maker, with the application of
co-decision, will respond to the European citizens' criticism
about the lack of involvement of the European Parliament and the
lack of accountability and scrutiny in the third pillar.
— An enhanced role for the ECJ, by
use of "enforcement action", which is not currently
available under the third pillar, and which could prove crucial
for the systematic enforcement of the instruments adopted in these
areas.
On the other hand using the "passerelle"
would, immediately or ultimately, have far reaching consequences
for the Member States, such as:
— A loss of their right to propose
the adoption of measures as this right would be given exclusively
to the Commission.
— In case of application of qualified
majority voting within the Council, a loss of the Member States'
current "veto rights" in these areas.
The effects of passarelle on decision making
for the UK might be an obligation to legislate to implement a
Council Decision which might be very difficult to incorporate
into UK law or which might be at odds with common law principles.
However one of the key success factors in relation
to any third pillar decision making is not so much the speed at
which the decision is reached but rather, its operational effectiveness
which relies on the quality of the implementation of a Council
Decision into the national law of each member state. Where the
decision has been reached by unanimity there should be few problems
and few inconsistencies in implementation. In practice, even with
unanimous decision making, implementation is not always consistent.
However if decisions are to be made by qualified majority voting,
one wonders if the quality and consistency of the implementation
in national law will be so good in those member states who were
in the minority when such decisions are made.
Given that judicial co-operation in criminal
matters remains a sensitive area for Member States it is doubtful
whether they will be ready to give up their right to propose the
adoption of measures and to renounce their veto right. Some Member
States have already manifested strong opposition to the use of
the "passerelle" which shows the political sensitivity
of this issue. Consequently it will be difficult to reach the
required unanimity for the use of Article 42 TEU.
4. How significant is the recent trend towards
internal agreements between groups of member states outside the
framework of the EU, for instance the Schengen countries, or the
Prüm convention? To what extent is this due to unanimity
or difficulties in decision making? What are the implications
for the UK and for EU fragmentation?
A4. It is perhaps inevitable that in a structure
of 27 countries and 30 different legal systems in diverse member
states issues of mutual importance can be, and will be addressed
in smaller groups of countries whose common regions, frontiers,
cultures, problems or objectives are linked. In the justice field,
as a state with a common law legal system, the UK is already operating
legal systems which are very different from over 20 other EU states.
Such arrangements are likely to allow better and more efficient
co-operation between these groups of states; in some ways it may
be a fast track approach. One implication for the UK of further
fragmentation is that the UK investigating and prosecuting authorities
will have to work hard to build practical co-operation relationships
with those states either individually or collectively. However
such arrangements could be seen as advantageous as they could
operate as "pilot" arrangements which could easily be
embraced, adapted or adopted by other states when they have been
operating in practice and when initial issues and problems have
been resolved. There have been such agreements and regional structures
in the past for example within the Nordic States in Scandinavia;
when special "Nordic only" mutual legal assistance arrangements
were in place.
5. What are the current developments in the
area of common border controls and visa arrangements? What implications
does the proposed new policy on illegal migration have for the
UK and our role in the EU? Will the proposed changes to the short-stay
visa arrangements in relation to the eastern neighbours of the
EU open up new channels for illegal migration further westward
in the EU? What are the implications of enlargement for JHA issues,
including the impact of labour migration and confidence in new
member states' justice systems?
A5. This question raises issues which are
outside the competence and experience of Eurojust and consequently
we feel it would be inappropriate respond.
Michael Kennedy
President of the College
17 January 2007
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