House of Commons - Home Affairs

Select Committee on Home Affairs Written Evidence

22. Joint memorandum submitted by Dr Helen Xanthaki and Dr Constantin Stefanou[162]

1. Effective cooperation in criminal matters within the EU is being promoted further by recent legislative instruments in the area of EU criminal law: [163]the 2000 Mutual Legal Assistance Convention and its Protocol, the Framework Decision on Joint Investigations Teams, [164]the Framework Decision on Combating Terrorism, [165]the Framework Decision on Money Laundering, [166]the European Arrest Warrant, [167]the Framework Decision on the Execution of Orders Freezing Property or Evidence. [168]At the same time, however, recent legislative instruments seem to require effective cooperation in criminal matters as a platform on which they can function: this is certainly the case with mutual recognition instruments and the draft Framework Decision on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. [169]

2. A number of studies have attempted to evaluate the level of effectiveness of mutual legal assistance. Many of those have been undertaken by the Institute of Advanced Legal Studies of the University of London under our coordination. [170]These studies have demonstrated that mutual legal assistance is a sine qua non tool in the combat against organized crime which could make the area of freedom, security and justice in the EU a reality for its citizens.

3. However, mutual legal assistance continues to be plagued by diversity. At the national level the majority of EU Member States introduce mechanisms for the exchange of legal assistance by reference to international, bilateral and national legal instruments. With reference to international agreements, the majority of EU Member States are signatories to the 1959 Council of Europe Convention, the 1978 Additional Protocol to the Convention and the Schengen Conventions. Moreover, a cluster of EU Member States are signatories to the Benelux Conventions while others are part of the Nordic Conventions on legal assistance. However, the value of international agreements in the national laws of the Member States remains diverse. A cluster of countries place international agreements above the Constitution in the hierarchy of sources of national law, others place them below the Constitution and above national laws, whereas other lack any concept of hierarchy with relation to international agreements altogether. Moreover, some Member States require ratification of international agreements whereas others introduce direct automatic application. Furthermore, a cluster of countries have opted for the introduction of framework laws regulating the issue of legal assistance within one legal text, whereas others have left the regulation of the matter to a set of scattered provisions found in a number of national legal instruments. However, it must be accepted that gradually more EU Member States opt for the framework law option. A small number of national laws do not introduce national provisions on mutual legal assistance, leaving this to regulation via international agreements. This paints a picture of high obscurity and ambiguity in the provisions on mutual legal assistance at the national level.

4. At the international level EU member states are subjected to further fragmentation and uncertainty. National officers are confronted with dilemmas on the best choice of legal assistance instrument with regards to the requested state, the nature and the form of the request. First, international instruments are implemented in dissimilar terms, if at all: reservations, declarations and signature dates fuzz the picture further. Officers in the requesting state must be aware of the status of compliance and implementation of each instrument in each of the member states. Second, fiscal, political and military offences are subject to individual agreements on mutual assistance usually on a bilateral basis. The choice of the best instrument requires deep understanding of all bilateral, multilateral and international instruments with reference to each member state. Third, drug offences are covered in parallel by the 1959 and 1988 Council of Europe Convention and the Schengen Convention, whose hierarchical relationship is far from clear. Fourth, considerations of dual criminality, additional grounds for refusal and, increasingly, reciprocity render the choice of instrument for the requesting state a complicated affair requiring deep knowledge of the legal provisions of the requesting state. Fifth, practical problems render the request and response to mutual legal assistance a complicated affair: discrepancies in the national procedural laws endanger the legal value of data offered in response to mutual legal assistance requests. Moreover, although the problem is less pronounced in the UK, the language of request and response is rarely common. [171]

5. At the EU level mutual legal assistance is provided by use of the Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty of the European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. The Convention is supplemental, albeit hierarchically superior, to prior Conventions which maintain their applicability where the 2000 Convention either fails to regulate an issue altogether, or fails to so in the most favourable manner. The Convention applies to criminal proceedings and also proceedings brought by administrative authorities for acts punishable under the national laws of either or both states involved. The Convention provides a solution to many ambiguous issues of mutual assistance. First, the Convention resolves the discrepancies in the recognition of criminal liability to legal persons in the national orders of member states: criminal liability of legal persons is within the field of application of the Convention. Second, the Convention resolves the problem of doubtful admissibility of data or evidence traced via mutual legal assistance: it awards precedence to the procedural rules applicable at the requesting rather than the receiving state and introduces the possibility of cooperation between the two authorities for the best possible result. Third, delays in the provision of mutual assistance, which often render its final provision useless in practice, are expressly discouraged by the Convention: not only must national authorities in the requested state respond at their earliest convenience but, where delays are envisaged, consultation with the requesting state is compulsory. Direct postal serving of procedural documents, limited translation of only relevant extracts of documents and spontaneous exchange of data facilitate mutual legal assistance and free national authorities' time and resources. The 2000 MLA Convention is a bold, progressive and focused attempt to resolve most of the plagues of previous instruments. The question is whether its application in practice leads to the desired effect.

6. There is little doubt that this depends on the reception of the Convention by Member States. Unfortunately, the 2000 MLA has not been ratified by seven EU member states: Greece, Ireland, Italy, Latvia and Luxembourg. The Protocol to the Convention has not been ratified by Estonia, Greece, Ireland, Italy, Luxembourg, Malta and Portugal. [172]

7. The problem is accentuated by the fragmentation of EU law in the area of mutual legal assistance, which may be viewed as an inevitable result of its subjection to the third intergovernmental pillar.

8. There is no doubt that steps have been taken to achieve closer collaboration amongst the competent authorities of the EU. Eurojust, the European Judicial Network and a number of bilateral initiatives have assisted considerably to this end. However, it is fair to state that the EU actors in the area lack the teeth to achieve their ambitious aims. Until Member States ratify and implement the international instruments in this area, until the correct complete and prompt implementation of the European Convention becomes a reality, and until the Schengen and Eurojust Conventions are fully implemented by all Member States, the inherent problems of bilateral or multilateral communication between national authorities functioning in diverse environments will remain. The table below demonstrates the current level of implementation of relevant EU instruments by EU member states as on 24 November 2[173] and relates this to the use of the Eurojust mechanism. [174]

Table

NON TRANSPOSITION OF OPERATIONAL INSTRUMENTS AT EUROJUST'S DISPOSAL

	Eurojust Decision	MLA 2000	Protocol to MLA	FD on JIT	FD on Terrorism	FD on Mon Laun	FD on EAW*	FD on execution of orders	2005 request received	2005 requests sent
BE								●	57	12
CZ		●			●	●		●	8	18
DK									17	17
DE							●	●	59	50
EE			●					●	8
EL	●	●	●	●				●	28	16
ES									98	20
FR									46	35
IE		●	●					●	7	5
IT		●	●	●				●	64	41
CY					●		●	●	12
LV						●		●	8
LT								●	13	1
LU	●	●	●			●		●	15	9
HU									12	2
MT		●	●					●	5
NL									80	3
AT									15	8
PL									12	22
PT			●					●	24	26
SI									8	5
SK		●	●		●				6	3
FI									6	11
SE									11	34
UK								●	65	42

* Entries in this column relate to non implementation of the EAW against their own nationals.

9. With specific reference to Eurojust, there is little doubt that Eurojust enjoys shared enthusiasm for results produced. [175]The question is whether demands for further powers are justified by the current indicators of effectiveness. Lack of express transposition of the Eurojust Decision seems prima facie to impede the use of the agency by the incompliant member states. However, records of requests made and received via Eurojust from and to these member states demonstrate that the usage of the agency is not hindered by the choice to proceed without national legislation on Eurojust.

10. There are two areas of concern with reference to the agency's operational framework. First, the constituting instruments refrain from the introduction of operational tools for the new agency. The preamble of the Eurojust Decision directs to the MLA Convention as the main operational tool. Unfortunately, the record of implementation of the MLA by member states demonstrates clearly that its provisions, and consequently the main operational tools of Eurojust, are not yet into force in a large number of member states. The problem is accentuated by similar low records of implementation of EU instruments that supplement the MLA and introduce new operational tools for the agency.

11. Second, a deeper look at the regulatory framework of Eurojust unearths further problems directly related to the effectiveness of the agency. These relate to two main issues: the discrepancies in the powers of national Eurojust members; and the inadequacy of operational tools offered to Eurojust members due to timid EU regulation accentuated by lack of national implementation.

12. EU member states rely on national, international and EU instruments for mutual legal assistance. At a time where increased movement of persons instigates increased movement of crime thus promoting transnational and multinational criminal behaviours and organizations, national authorities have no other viable option but to turn to transnational and multinational solutions. Mutual legal assistance carries inherent problems. In the EU these are accentuated by diversity in the national provisions of substantive and procedural criminal law and by fragmentation in the implementation of regional and international agreements. Problems in this area have been identified at two levels: first, at the operational and, second, at the regulatory framework of mutual legal assistance and EU agencies in the area of criminal law. The identification of these two levels of problems leads to the determination of two levels of recommendations of the future: first, the current operational framework of mutual legal assistance must be strengthened by complete implementation of current instruments; and second, the regulatory framework must be fortified by further collective legislative solutions either at the intergovernmental or, preferably, at the EU level.

4 December 2006

162 Dr Helen Xanthaki, LLB (Athens), MJur, PhD (Dunelm) is a Senior Lecturer and Academic Director of the Sir William Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London; Dr Xanthaki serves as an expert of the Ministry of Justice of the Hellenic Republic in the Council of the EU Working Group on Judicial Cooperation in Criminal Matters; Dr Constantin Stefanou, BA (NEC), MA (Essex), Phil (Essex), PhD (Kent) is a Fellow at the Institute of Advanced Legal Studies, School of Advanced Study, University of London. Back

163 See Council of the EU, The Hague Programme: strengthening freedom, security and justice in the EU, 16054/04 JAI 559, Brussels, 13 December 2004, p 22. Back

164 Framework Decision 2002/465/JHA/ of 13.6.2002 on joint investigation teams, OJ L 162, 20.6.2002, p 1. Back

165 Framework Decision 2002/475/JHA of 13.6.2002 on combating terrorism, OJ L 164, 22.6.2002, p 3. Back

166 Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182, 5.7.2001, p 1. Back

167 Framework Decision 2002/584/JHA of 13.6.2002 on the EAW and the surrender procedures between member states, OJ L 190, 18.7.2002, p 1. Back

168 Framework Decision 2003/577/JHA of 22.7.2003 on the execution in the EU of orders freezing property or evidence, OJ L 196, 2.8.2003, p 45. Back

169 See Council of the EU, COPEN 119, doc no 15445/1/06, Brussels, 24 November 2006. Back

170 See "The Use of Criminal Records as a means of preventing organized crime in the areas of money-laundering and public procurement: the EU approach", European Commission FALCONE Study (Ref No 1999/FAL/197); "A European Criminal Record as a means of combating organized crime: the EU approach", European Commission FALCONE Study (Ref No 2000/FAL/168); "National Means of Implementation of Third Pillar Instruments: the EU approach", European Commission GROTIUS Study (Ref No 2000/GR/109); "Methods of preventing the infiltration of legal entities by the organized crime and terrorism: EU approach", European Commission JHA Study (Ref No DG JAI-B2/2003/01); "Feasibility study on the creation of a database on prosecutions and investigations: the EU Approach", European Commission AGIS Programme Study (Ref No JAI/AGIS/ 2003/002). Back

171 Helen Xanthaki, "The Present Legal framework of Mutual Legal Assistance within the EU" [2003] Revue Hellenique de Droit International, Vol 56, No 1, pp 53-90. Back

172 Council of the EU, "Adendum to the I item note-Implementation of the Strategy and Action Plan to Combat Terrorism", doc no 15266/06 ADD1 REV1, Brussels, 24 November 2006. Back