14. Memorandum submitted by Dr Valsamis
Mitsilegas
INTRODUCTION
1. Justice and Home Affairs is perhaps the
fastest-growing area of European Union law and policy, with developments
in the field challenging traditional perceptions of State sovereignty
and having potentially far-reaching implications for the protection
of fundamental rights and the relationship between the individual
and the State. Recent years have witnessed a proliferation of
EU laws (such as the European Arrest Warrant) and structures (such
as Eurojust and the European Borders Agency), and sustained political
pressure—most notably via the Hague Programme and its aftermath—towards
the intensification of co-ordination and operational co-operation
between national law enforcement agencies. However, these developments
have not always been accompanied by an open, democratic debate
in the future direction of EU action in the field, with both the
European Parliament and national parliaments having a limited
say. On the other hand, attempts for further integration have
repeatedly stumbled upon current institutional constraints—such
as decision-making by unanimity in the Council—which remains
in place in the light of the rejection of the Constitutional Treaty,
at the expense of the adoption of mostly "protective"
measures for the individual (such as proposals on the rights of
the defendant). This contradiction between the political pressure
towards more EU co-ordination in enforcement and Member States'
reluctance to cede sovereignty in the sensitive sphere of criminal
law is reflected in the Hague Programme and has led to two major
tendencies in the development of EU law and policy in the field:
an emphasis on mutual recognition rather than harmonisation of
criminal law; and an emphasis on operational co-operation rather
than the development of a coherent legal framework to regulate
co-operation between national authorities. My contribution will
focus on these two aspects of EU action.
MUTUAL RECOGNITION
IN CRIMINAL
MATTERS
2. Mutual recognition of judicial decisions
has been central in the development of EU criminal law post-Tampere
and confirmed in the Hague Programme as the cornerstone of EU
action in criminal matters. The emphasis on mutual recognition,
instead of harmonisation of criminal law, has been a convenient
choice for Member States concerned about ceding sovereignty in
criminal matters. The political appeal of mutual recognition for
such Member States lies in the fact that, instead of embarking
in a very visible attempt to harmonise their criminal laws at
EU level, they can be seen to promote judicial co-operation by
not having to change in principle their domestic criminal laws.
For EU institutions promoting the principle, on the other hand,
mutual recognition would avoid stagnation in European integration
in criminal matters (linked to Member States' reluctance to harmonise
criminal law and the decision-making constraints of the third
pillar) and would lead to a "spill-over" harmonisation
of minimum procedural standards justified as facilitating the
practical operation of mutual recognition and leading to the establishment
of a common level playing field across the EU. [99]The
Commission's proposal on defence rights is a clear example of
such "spill-over" harmonisation strategy. [100]
3. The central element of the mutual recognition
mechanism is that—instead of a common standard negotiated
and adopted at EU level—it is a national standard,
judgment or order (for example, a European Arrest Warrant) that
must be recognised by the equivalent authorities of other Member
States. [101]In
recognising these standards in specific cases, national judicial
authorities implicitly accept as legitimate the national legal,
constitutional and judicial system which has produced them in
the first place. In that sense, mutual recognition represents
a "journey into the unknown", where national authorities
are in principle obliged to recognise—with a minimum of
formality and limited grounds for refusal—standards emanating
from the national system of any given EU Member State. The basis
for the smooth operation of the principle is therefore a high
level of trust in each other's criminal justice systems, which
would facilitate the quasi-automatic recognition of national judicial
decisions in the sensitive sphere of criminal law by judges across
the EU.
4. However, the issue of the extent to which
one can successfully "borrow" the mutual recognition
principle from its internal market framework and transplant it
to the criminal law sphere is contested. The main objection that
could be voiced to such transplant is one of principle, namely
that criminal law and justice is an area of law and regulation
which is qualitatively different from the regulation of trade
and markets. As I have noted elsewhere, "Criminal law regulates
the relationship between the individual and the State, and guarantees
not only State interests but also individual freedoms and rights
in limiting State intervention. Court orders and judgments in
the criminal sphere may have a substantial impact on fundamental
rights, and any inroads to such rights caused by criminal law
must be extensively debated and justified. Using mutual recognition
to achieve regulatory competition (as has been the case in the
internal market) cannot be repeated in the criminal law sphere,
as the logic of criminal law is different and market considerations
cannot give a solution. While market efficiency requires a degree
of flexibility and aims at profit maximisation, clear and predictable
criminal law principles are essential to provide legal certainty
in a society based on the rule of law. The existence of these—publicly
negotiated—rules is a condition of public trust to the national
legal order." [102]
5. It comes thus as no surprise that the
application of the mutual recognition principle in criminal matters
on the terms described above, has raised a number of constitutional
concerns. A major objection has centered on the abolition of the
dual criminality requirement for 32 offences in the mutual recognition
instruments, which is seen to constitute a breach of the legality
principle (or nullum crimen sine lege). It is doubtful
whether it is acceptable to execute an enforcement decision (such
as an arrest warrant) related to an act that is not an offence
under the law of the executing State and whether a State should
be asked to employ its criminal enforcement mechanism to help
prosecuting/punishing behaviour which is not a criminal offence
in its national legal order. A further concern involves the legitimacy
of criminal law at the national—and EU—level. Criminal
law is fundamental in a society governed by the rule of law, as
it contains rules delineating the relationship between the individual
and the State and providing guarantees and safeguards for the
individual regarding the extent and limits of acceptable behaviour
and reach of State power and force. Criminal law and the limits
that it sets must be openly negotiated and agreed via a democratic
process, and citizens must be aware of exactly what the rules
are. However, mutual recognition challenges this framework. Contrary
to harmonisation, which would involve a set of concrete EU-wide
standards which would be negotiated and agreed by the EU institutions,
mutual recognition does not involve a commonly negotiated standard.
Agreeing on the procedure to recognise national decisions,
rather than substantive rules in the field of criminal
law reflects a legitimacy and democracy deficit. Mutual recognition
without any level of open, democratic debate contributes towards
a lack of clarity as to the objectives, content and direction
of EU criminal law. [103]
6. The recent decision by the German Constitutional
Court on the compatibility of the German legislation implementing
the European Arrest Warrant is indicative of such concerns. While
the Court avoided to clash with the Union legislator and the European
Arrest Warrant itself, it sent a clear warning that any attempt
to render judicial co-operation in criminal matters automatic
would have to take into account the constitutional protection
that—at least citizens—of EU Member States feel that
they enjoy in their country of citizenship. Rather than emphasising
trust in "each other's legal and judicial systems" which
is at times taken for granted by EU institutions and certainly
flagged up as the basis for mutual recognition, the German Constitutional
Court rather emphasised the trust that the citizen has in his/her
own legal system—and subsequently annulled the German implementing
legislation of the European Arrest Warrant.
7. The Commission on the other hand attempted
to address these concerns mainly by tabling a draft Framework
Decision on defence rights, which was presented as a corollary
to the European Arrest Warrant and justified on the basis that
it would enhance trust in each other's criminal justice system.
Given the measure's rather weak legal basis, the requirement of
unanimity in the Council, and Member States' reluctance to agree
on such issues, the proposal is still under negotiation in the
Council. Bearing in mind that the European Arrest Warrant has
now been fully implemented, this creates an imbalance in EU criminal
law, which is exacerbated by the constant focus on mutual recognition
at the expense of (and not in conjunction with) harmonisation
of criminal law or an attempt to achieve a better common understanding
of the aims and objectives of criminal law in a borderless Union.
With the majority of Member States seemingly reluctant to use
the "passerelle" provision to transfer criminal law
decision-making in the first pillar, prospects of more harmonisation
remain unclear. At the same time, though, mutual recognition is
increasingly under attack (if the German Constitutional Court
and the outcome of the negotiations on the European Evidence Warrant
are credible indications). This state of flux can be seen as an
opportunity to address the incrementalism in the development of
EU criminal law and opening a far-reaching debate on the future
and direction of EU action in criminal matters.
OPERATIONAL CO
-OPERATION, COUNTER-TERRORISM
AND THE HAGUE
PROGRAMME
8. The main novelty in the rather "pragmatic"
Hague Programme has been the emphasis on "operational"
measures and a multi-pronged strategy to enhance operational co-operation.
Measures aim in particular at boosting operational co-operation
between national law enforcement (and to some extent intelligence)
agencies, by introducing new concepts such as the principle of
availability, enhancing the exchange of personal data and strategic
information between these agencies and their EU counterparts,
and developing European Union databases.
Intensifying co-operation between national police
authorities
9. The key element in this process is the
facilitation of exchange of information between national authorities
on the basis of the "principle of availability".
According to the Hague Programme, this means that "throughout
the Union, a law enforcement officer in one Member State who needs
information in order to perform his duties can obtain this from
another Member State and that the law enforcement agency in the
other Member State which holds this information will make it available
for the stated purpose, taking into account the requirement for
ongoing investigations in that State". The principle of availability,
as evidenced by the Commission original proposal for a related
Framework Decision and based on a maximal version of mutual recognition,
is extensive and may have far-reaching implications for both the
protection of human rights but also for the legitimacy of EU action
in the field:
— It calls for the provision of information
to "equivalent" authorities of other Member States almost
exclusively on a "need to know basis".
— Exchange of information takes place
on the basis of standard, pro-forma documents, becoming thus quasi-automated.
— No questions as to the purpose and
use of this information by the requesting authority are asked
(although the proposal currently includes a ground for refusal
on human rights grounds).
— Requesting police authorities cannot
ask for information to be obtained—with or without coercive
measures—by the requested authority solely for the purposes
of co-operation—but information already lawfully collected
by the requested authority by coercive measures may be provided
(even though these measures may not be lawful in the requesting
State—something that would potentially infringe national
constitutional provisions through the "back door").
— Authorities that can benefit from
the principle of availability will be defined by a "comitology"
Committee, and not by the ordinary EU legislative procedure (currently
in the third pillar)—this move would bypass parliamentary
scrutiny both at EU and national level and shields the issue of
"availability" from public debate.
Developing EU databases and enhancing their "interoperability"
10. One of the main priorities in this context
is the development of the "second generation" Schengen
Information System (SIS II). These developments may bring about
fundamental changes in the nature and purpose of the Schengen
Information System, which may be transformed into a general, law
enforcement database, with the boundaries between the so-called
"immigration" and "police" data in the SIS
database becoming increasingly blurred. Key in this process are
proposals to interlink SIS alerts. Parallel developments are visible
in negotiations regarding the Visa Information System (VIS), with
calls for the database to be accessed not only by immigration,
but also by police authorities. There are also calls for the VIS
to include biometric identifiers, and a 2004 Regulation has introduced
the requirement for EU passports to include biometrics. These
developments raise important privacy concerns, which become more
acute in the light of the recent emphasis on the need to ensure
"interoperability" between EU databases. Following the
example of the EU Declaration on combating terrorism produced
after Madrid, the Hague Programme calls for maximising interoperability
of EU information systems "in tackling illegal immigration
and improving border controls" on the one hand, and "reciprocal
access to or interoperability of national databases" for
security purposes, or "direct (on-line) access", including
for Europol, to existing central EU databases such as the SIS.
[104]This
could create a situation where databases including different categories
of data and established for different purposes—not necessarily
related to law enforcement—are "interoperable"
and thus easily accessed by a wide range of authorities. The logic
of maximum availability dictates that personal data—regardless
of their nature and the purpose for which they have been collected—be
readily available to any State/EU authority which may claim that
access is necessary.
The proliferation of EU structures
11. There exist now a number of bodies and
agencies dealing with operational co-operation in JHA matters
and counter-terrorism in the EU. Europol and Eurojust are the
most obvious references, both third pillar agencies established
by and regulated extensively by EU law. Other structures, however,
are less formal. The post of the EU Counter-terrorism Co-ordinator
was established by the European Council after Madrid. There is
no clear legal basis in EU law for this post, nor is there, quite
some time after the establishment of the post, a clear description
of the Co-ordinator's mandate (although he reports to Mr Solana)[105].
The Police Chiefs' Task Force, working within Council structures,
has also been called to assist on counter-terrorism, as has SitCen,
a second pillar intelligence centre also reporting to Mr Solana.
The recently established European Borders Agency is also called
to co-operate. We thus have a combination of first, second and
third pillar bodies and structures, some founded on legal rules,
some more informal. The work of all these agencies—especially
if, as in the Hague Programme, they are called to co-operate and
exchange data with each other—raises important issues of
democratic control and scrutiny as well as accountability, but
this is especially the case with the informal structures: it is
not clear who checks the exercise of their powers, especially
if these are coercive and involve the exchange of personal data.
[106]
EU ACTION IN
CRIMINAL MATTERS—A
DEMOCRACY AND
LEGITIMACY DEFICIT?
13. The development of EU action in the
field of criminal law and counter-terrorism and its potential
impact on human rights have not been properly debated in the EU
or its Member States, and from that perspective the legitimacy
of the operational project for the EU is questionable. Three are
the main elements contributing to this democratic and legitimacy
deficit:
— the current limits of the EU institutional
and constitutional structures regarding democratic control:
the third pillar envisages a very limited role for the European
Parliament. Scrutiny is even more limited in third pillar international
agreements and EU operational action. The European Parliament's
role is even more limited when Europol and Eurojust are involved.
National parliaments, on the other hand, have virtually no opportunities
to scrutinise operational action, and intervene in the making
of EC and EU law only in the negotiation stage, before measures
are adopted. The proposed involvement of national parliaments,
jointly with the European Parliament, in scrutinising the work
of third pillar agencies is an option worth exploring.
— The proliferation of agencies
and informal structures and the push towards co-operation:
many of the structures created were established with minimal debate
and even without a legal basis. All these bodies are asked to
co-operate, but the nature of co-operation is unclear. Cross-pillar
co-operation is desirable but the legal framework of each pillar
is different—as is the legal framework of specific agencies
and structures. There is a danger of operational co-operation
which is totally unchecked. Greater attention should be placed
on the scrutiny and accountability of third pillar agencies and
the control of operational co-operation. Operational action and
co-operation must be placed within a clear legal framework.
— The chosen method of integration—the
emphasis on mutual recognition: this is the case both in criminal
matters (with the European Arrest Warrant being the prime example)
and to some extent in police co-operation (with the principle
of availability). Co-operation takes place on the basis of trust
in the legal systems of other Member States almost automatically,
without examining how a judgment has been reached or how information
has been obtained or how it will be used. This may have considerable
constitutional implications for the Member States involved. It
also serves to avoid or pre-empt EU wide scrutiny and debate on
the level of co-operation desired by citizens and the standards
that should underpin this. The lack of consultation and engagement
with the public may however, as demonstrated by the rejection
of the Constitutional Treaty in France and the Netherlands, be
counter-productive, especially when one deals with matters of
that importance.
Valsamis Mitsilegas
2 October 2006
99 See V Mitsilegas, "Trust-building Measures
in the European Judicial Area in Criminal Matters: Issues of Competence,
Legitimacy and Inter-institutional Balance" in S Carrera
and T Balzacq, Security versus Freedom? A Challenge for Europe's
Future, Ashgate, Aldershot, Hampshire and Burlington, VT,
2006, pp 279-289. Back
100
For background to this proposal, see House of Lords EU
Committee, Procedural Rights in Criminal Proceedings, 1st
Report, 2004-05, HL Paper 28. Back
101
For further details, see V Mitsilegas, "The Constitutional
Implications of Mutual Recognition in Criminal Matters in the
European Union", Common Market Law Review, October
2006. Back
102
Mitsilegas, ibid. Back
103
Ibid. Back
104
Point 1.7.2, p 25 and 2.1, p 28 respectively. Back
105
See House of Lords EU Committee, After Madrid: the EU's
Response to Terrorism, 5th Report, session 2004-05, HL paper
53. Back
106
See V Mitsilegas, "Operational Co-operation and Counter-terrorism
in the EU", in F Pastore (ed), Supranational Counter-terrorism.
A test under duress fort EU principles and institutions, Centro
Studi di Political Internazionale (CeSPI), Rome, Working Paper
22/2005. Back
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