Examination of Witnesses (Questions 199
- 219)
TUESDAY 24 JUNE 2008
Mr Jose Luis Lopes da Mota, Ms Miche"le Coninsx,
Mr Aled Williams, Mr Jacques Vos, Ms Frederica Curtol and Ms Muriel
van der Klooster
Q199 Chairman:
President, thank you for having us here. I am sorry that we are
starting rather later than was scheduled. You may know that this
is a Sub-Committee of the principal European Select Committee
of the House of Lords in London. The principal Committee has a
series of Sub-Committees of which this is one. We concern ourselves
with issues which are covered by the Home Office in London. We
did a report very recently on Frontex. We have published one within
the last couple of weeks on PNR, Passenger Name Records, and we
are delighted to be with you today to pursue further our current
investigation on Europol. We are hoping to complete our evidence
sessions some time in July and then put together a report when
our Parliament reconvenes after the summer in October, and to
publish it some time towards the end of the year. I wonder if
I might begin, unless, President, you would like to make some
remarks to begin with.
Mr Lopes da Mota: I would just like to
welcome you, my Lord Chairman. My Lords and my Lady, welcome to
Eurojust. We are very pleased to be able to meet you in our building
and to provide you with all the answers and information you need
for your inquiry. I am the President of the College of Eurojust.
On my left is Miche"le Coninsx, who is Vice-President and
national member for Belgium. Miche"le also deals with terrorist
matters and is the Chair of our terrorism college team. On my
right is Aled Williams, the national member for the United Kingdom
and also Chair of the Europol college team specifically dealing
with issues concerning Europol. Jacques Vos is our acting Administrative
Director, Frederica Curtol is our Case Management Legal Analyst
and is working directly with national members and supporting our
operational work and also those matters related to the operations
of Europol, and Muriel is my Assistant and Assistant to the Presidency
Team. Thank you very much for your visit and for coming to Eurojust
for this inquiry. We are very pleased to meet you and we are happy
to provide you with all the information you need.
Q200 Chairman:
President, you say you can provide us with all the information
we need. If by chance there is an odd piece of information—I
think it is very doubtful—which you are not able to provide
we shall be delighted to receive it later, either by email or
in hard copy. That would be most helpful. I am not going to introduce
my team. I do not know whether you have had all our CVs but I
think it is probably unnecessary. I wonder if I could begin by
asking you to explain the role of Eurojust within the Architecture
of Internal Security and if you could give us some assessment
of this reference framework both now and in the future.
Mr Lopes da Mota: Thank you for offering
us the possibility of sending further information. We have some
documents we can provide to you on specific aspects and you can
find in them more detailed information which will confirm what
we say during this meeting. Regarding your first question, my
answer is that Eurojust is already playing a crucial role in this
area. We are a judicial co-operation body. We deal with investigations
and prosecutions. Our role is to support our national authorities
when they have to deal with these types of cases. Co-ordination
is a very difficult task in practice. It is work that involves
police, prosecutors and even judges in the systems which have
the so-called investigating judge, the juge d'instruction.
That means we are a very flexible body. We have to adapt to the
different national legal systems. In Europe at this moment we
are 27 Member States but we have 29 or even 30 different legal
systems and 23 different languages, so co-ordination is a very
complex task in practice and we have to work always on the basis
of our national legislation and on the basis of our differences
and making things happen in spite of the differences and respecting
these differences. That means that different actors play different
roles, the police, prosecutors and judges, according to the national
legal systems, and this is also the reason why Eurojust is composed
of members coming from different bodies. National members may
be prosecutors, judges or police officers of equivalent competences.
It is then up to Member States to implement and adapt this Decision
to the national legal system. After five years of experience we
can say that we have already provided real added value to our
investigations and prosecutions. Our role is to promote co-ordination
in the framework of judicial co-operation. That means addressing
this activity from a judicial point of view. When we have to collect
evidence we need to send letters of request. We need to act on
the basis of the national legislation and then we have to be sure
that investigations will lead to successful prosecutions and this
means that they should lead to convictions in trial. That means
that we have to continue the work that is being done, starting
with the police bodies at national level and also working on the
basis of police co-operation in Europe. Europol is our privileged
partner. That means that Europol deals with police co-operation
and we deal with judicial co-operation. Our aim is to have police
co-operation and judicial co-operation working together from an
early stage of the investigations in order to have a common overall
approach to criminal phenomena affecting two or more jurisdictions.
We can then organise the work in such a way that we can gather
evidence and co-ordinate the different players in the different
Member States, and at the end maybe we also have to discuss problems
related to competition between jurisdictions, for instance. If
it is a cross-border crime that means that we should have parallel
instigations in different countries and lots of problems arise
when we have to apply different legal systems and then see which
legislation we have to apply when gathering evidence, and in the
end (and this is also an important role for Eurojust) see which
is the jurisdiction that is in the best position to deal with
the case, the best place to prosecute in the most efficient way.
This is also a challenge for Eurojust. Experience shows that we
have already put in place very fruitful co-operation. Our relations
with Europol are developing in a very positive way. We have worked
together in concrete cases, in the last year at least 27 cases,
and very successfully. Of course, there are still pending and
open issues more related to the exchange of information. You know
that here we have to take into consideration national legislation,
not only on criminal matters but also in data processing, data
protection and security, and then you have a very complex combination
of different regimes. We signed an agreement with Europol in 2004.
We have already approved a memorandum of understanding in order
to implement the agreement. Now we are working on a table of equivalences
because we need to offer the same level of security classification
and we have created a strong basis for continuing this successful
work.
Q201 Chairman:
You did in passing just now mention security of information. I
personally have some experience of some of these things. I was
years ago President of one of the European Union Councils of Ministers
and I am currently involved with NATO through the NATO Parliamentary
Assembly, and I take a pretty dim view in both those organisations
of the security of information, and I can say that a lot of people
are very wary of giving either of those organisations certain
information. My suspicion would be that there is a problem in
Europol over this too with 27 members. How serious a problem do
you see this being?
Mr Lopes da Mota: Do you mean on the
exchange of information?
Q202 Chairman:
Yes, the sanctity of information and the fact that it should not
leak but does.
Mr Lopes da Mota: I think that in these
matters of security, exchange of information and protection of
information there are some common standards that we have to observe
and that by developing those standards we can always find a balanced
solution. Of course, in order to be effective we need to exchange
at least some basic information; otherwise we cannot work. We
are not an investigative body so we do not generate information
ourselves. We have to work on the basis of the information that
comes from our colleagues, from the national authorities, from
the 27 Member States, and also information we can exchange with
other European bodies. The principle in this matter regarding
the organisation and function of Eurojust is that the information
which we receive and which is sent by our authorities to Eurojust
is received and processed by the national member of that state.
That means, for example, that information coming from the UK comes
to the UK national member and information that comes from Belgium
comes to the Belgian national member. The information also comes
to me if my country is involved and then it is up to us to decide,
on the basis of the principle of need to know, which information
we have to share in order to work together in specific cases.
That means that at Eurojust at the end of the day we have 27 different
databases that are organised in a very complex technical way and
also have very strong legal basis because we have to comply with
all requirements on security. We have different levels of exchange
of information. The principle is that all the information has
an owner, so that means national members are the owners of the
information they receive from the Member States and then all the
processing of that information at Eurojust is dealt with by the
owner of that information. The same happens with the information
we have to receive from and send to our partners. That means that
with Europol the rules and principles are the same, the principle
of need to know and the principles relating to security. Then
we have an additional point that is related to the classification
of information. We have different levels of classification—restricted,
confidential, secret and top secret -, and we also have to take
into account the legal requirements for people to deal with that
specific information, which apply to the members of the national
desks and the staff. That means that from that point of view we
have a basis for working. At Eurojust we deal mainly with so-called
judicial information, in other words, information related to concrete
investigations and prosecutions when we need to put in place judicial
co-operation between Member States. Judicial co-operation can
involve different players—judges, prosecutors or even police
officers; it depends on the national legal systems, and they can
provide information that is needed to create the basis for successful
prosecutions and to take evidence. In general terms, taking into
account that the national members are the controllers, the owners
of the information, and taking into account the rules of security,
we are in a condition to ensure appropriate protection of all
the information we deal with.
Q203 Chairman:
Forgive me, but what I am really after is this. Europol is an
organisation with whom you do business?
Mr Lopes da Mota: Yes.
Q204 Chairman:
As an observer of the scene to what extent do you think that within
Europol information which you legitimately get, or other information
which has nothing to do with you maybe, leaks out of Europol which
should not leak?
Mr Lopes da Mota: From the Eurojust point
of view what we need from Europol is information on cross-border
investigations and prosecutions that have to be followed up at
a judicial level. Once Europol provides that information to Eurojust
our concern is that this information should be transmitted to
Eurojust in a more systematic way so we can ensure from this side
at Eurojust that that information is protected and is only disseminated
to the national members of the countries that are really involved
in the investigations and prosecutions because Europol also works
on the basis of information it receives from Member States.
Chairman: All right; let us leave that there.
Q205 Lord Harrison:
President, we have just had the opportunity to meet your counterpart,
Mr Ratzel, in Europol, and I asked him this question about the
relations between Eurojust and Europol which our Chairman has
broached. I wonder whether you would like to expand on that. I
understand the 2009 Agreement foresees meeting on a quarterly
basis, but certainly from what Mr Ratzel said there are many not
only formal links but informal links as well. I would like to
ask you how you see matters between the two institutions developing,
and, if I can perhaps put it in context, I believe there was an
idea that the two of you should be under the same roof at one
time. Would that be too close and too cosy an arrangement? I know
you are going to be very close to each other, but does it imply
that there is the necessity to demarcate between Eurojust and
what it does and Europol and what it does? Could you talk a little
bit about that and how you foresee what obviously seems to have
been a good start for Mr Ratzel in the relations might be developed
over the years to the benefit of all of us?
Mr Lopes da Mota: Regarding relations
with Europol, I have to say that we have excellent relations between
the President of Eurojust and the Director of Europol. We meet
regularly, we meet informally, we call each other, so things move
excellently. We also have a steering committee composed of Europol
representatives and Eurojust representatives. Aled is the head
of our representation on that steering committee which has to
monitor the implementation of the co-operation agreement we have
with Europol which we signed in 2004. The relations we have in
our work, as I said, are very positive and in fact we work in
complementary areas. That means that Europol deals with police
co-operation as it is defined in the legal texts. They are a body
that processes criminal information. The information they receive
and they are able to process is essential in order to find links
with cases, to find links with countries and then to have a broader
picture on these criminal activities. The information they receive
comes basically from the police side. We deal with judicial co-operation.
In some countries judicial co-operation is also part of the police
co-operation. In other countries it is separated. We have different
players. That is why Eurojust has also the possibility of different
combinations. We have police officers working at Eurojust, we
have prosecutors and we have judges. What is important is to ensure
that all this work that is done at police level and the judicial
co-operation level is consistent and leads to successful prosecutions
and investigations. We have to develop a more consistent basis
for us to be able to act on the basis of the analytical work done
by Europol. As you know, the Eurojust Decision says clearly that
one of the tasks of Eurojust is to provide assistance to national
authorities on the basis of the analytical work of Europol and
our other competence is to support Europol in its analytical work,
but we mainly deal with the law, if I may simplify it in that
way. That means we have to address all this work from a legal
and judicial perspective and then we are in a position to provide
advice in order to develop all this work at prosecutorial and
judicial level. The basis of the creation of Europol and Eurojust
is the idea of complementarity of roles.
Q206 Lord Harrison:
I think what you are saying is that you have to exercise a degree
of flexibility on a case-by-case basis in your relations with
Europol because it depends a little bit on the jurisdictions and
the relationships that the prosecuting authorities have with the
police in each country, but, of course, that may stretch over
a number of countries on the European scene as well. It is really
quite a complex dance that you have to do from time to time. Is
that right? Is that fair, to discuss it in that way?
Mr Lopes da Mota: Yes, that is the idea,
the idea of flexibility. You are right: this is not easy. I will
ask Miche"le if she wants to add something because she has
interesting cases that she has dealt with with Europol and the
different Member States and different political systems and also
Aled may want to be more precise in relation to this question,
just taking some examples perhaps.
Ms Coninsx: Coming back to your very
down-to-earth question, do we need to be together in the same
building, I think that in 2001 the heads of states in Laeken decided
that we had to be sent to The Hague so that we would be able to
co-operate with Europol there. In 2002 we moved to The Hague and
we are still not in the same area. We are split up by a distance
of 15 minutes between the two institutions and this is not what
the heads of state had in mind, I presume. Why? Because we operate
in exactly the same areas, covering exactly the same phenomena
without any exception and our goals are exactly the same, and
those are to dismantle criminal networks, to stop organised crime
and terrorism, and indeed in terrorism to be as preventive as
possible because we are talking also about prevention of terrorism.
Hence, we are still split up and we are working to be together.
Why? Because there is no such thing as police co-operation without
judicial co-operation. When we talk about the launching of EAWs
(European Arrest Warrants) and the co-ordination of the execution
of EAWs, especially on the Continent, we are working in the judicial
area. If we are working on a simultaneous synchronised execution
of house searches in four or five different countries we are talking
about judicial monitoring. Of course, this is linked to operations
which start from criminal investigations where we should work
hand in hand together in a structured way to stop organised crime.
We have some examples, like the operation we led yesterday, about
which Aled was being interviewed today by Dutch television, with
ten Member States in a human smuggling and illegal immigrants
case. We mounted the whole co-ordination together with Europol
thanks to the Analysis Work File, in this case Checkpoint. Thanks
to the helicopter view offered by the Analysis Work Files we manage
to have an overview of who is concerned, who should be meeting,
not in the later stages but in the early stages, because from
the beginning we have to stipulate what is present, who is present
and at what stage, where exactly we have good evidence and what
we have to do to bring better evidence in front of the leading
country. This is the whole work, to mount the co-ordination, and
hence we need to work in the very early stages together with the
police and that is exactly what we have been doing, not only in
Operation Baghdad but also in Operation Koala, and each time we
were successful because we made good use of the Analysis Work
Files.
Q207 Lord Harrison:
Chairman, could I just pursue that from Ms Coninsx, because that
is a very interesting answer? I sense a degree of frustration
from what you are saying, that you do a very good job but you
could perhaps do an even better one. Is the reason for the non-co-location
of the two institutions a practical problem or is it that someone
from higher up has frowned on it for some reason?
Ms Coninsx: Co-location would be the
ideal situation. The proximity is, of course, leading to a better
relationship. It is for each couple the same; also for the couple
Europol and Eurojust. If you split you tend to forget each other
and not get along with each other. There is room for improvement,
especially when talking about added value, the real added value
of the 18 Analysis Work Files. We have been associated so far
with 12 Analysis Work Files but they are running 18. With regard
to AWF Dolphin, the one which is related to terrorism, and to
AWF Hydra, which is related to Islamist extremist terrorism, we
are not so far associated with them. The reason why is not Europol;
it is the Member States, so we have a political problem, a problem
of sovereignty. Hence, if we want to be proactive, if we want
to be more effective in fighting organised crime, we should have
this helicopter view in time and not have to be waiting for requests
from one or another Member State to help them. If we can, together
with Europol, hand in hand, have an overview of the situation
together with the processing and analysis of information, in other
words be one step ahead, we will be more effective and stop further
developments in the area of organised crime. There is room for
improvement and hence there is indeed at our level, at the level
of the practitioners, a lot of frustration.
Q208 Chairman:
Will there still be a disadvantage then when you both move into
the juxtaposed buildings in two or three years' time, whenever
it is?
Mr Lopes da Mota: We are already working
with the Dutch Government and the municipality of The Hague on
different scenarios, so our intention is to be as close as possible
to Europol.
Q209 Chairman:
Sorry; that is not what I meant. What I meant was, you are going
into adjacent buildings as I understand it. Is that a significant
disadvantage compared with being in one building?
Mr Lopes da Mota: Of course, if we were
in the same building we would use the same facilities and be in
direct contact in our daily work, so that would be the ideal solution,
but it was not possible so we have to be in different buildings.
That is already decided in what concerns Europol.
Q210 Lord Harrison:
Why was it not possible?
Mr Lopes da Mota: At this stage it would
be difficult as far as I know but Jacques is dealing specifically
with this matter of the buildings.
Mr Vos: My Lord Chairman, following the
situation in 2005 Europol and Eurojust came together to study
actively and pursue the option of what the host state at the time
called a no-regret option, one facility for two organisations
with a clear separation within the building for the two organisations.
The unfortunate thing is that the site chosen already for the
Europol location was too limited in scope, with the additional
expansion that would be required for the growth of both Eurojust
and Europol over the next ten to 15 years, to allow both organisations
to cohabit in one facility. All our efforts are currently geared
to cohabiting in the same area. The College of Eurojust has decided
that a proximity of one kilometre maximum would be the acceptable
distance that would still allow for, give or take if it rains
or not, walking distance between the two organisations and allow
for the counterparts of each organisation to meet on a regular
basis. Hence we are working currently very arduously to reach
a point where we are going to be, as I say, 200 metres or maybe
smack next to each other, if that is possible, because there is
a lot of synergy to be gained from two agencies of this kind cohabiting,
in cost savings, in sharing facilities that we both need. Certain
services like security services could have been combined, and
so we really regret it and Eurojust expressed its dismay also
that that option was not considered when it was decided for Eurojust
to come to The Hague. It was a missed opportunity for all parties
concerned, and currently we are struggling to find a house near
the new Europol site that will meet our needs for the coming 15
to 20 years, and that is proving to be very challenging.
Chairman: I have to tell you that British Governments
make just as absurd decisions. My thought is, "Oh, dear",
which takes me to Lord Dear.
Q211 Lord Dear:
Just to sweep up on that, I guess what you will do on a needs
basis, a case-by-case basis, if you do need a joint team working
together is put them together either in your building or their
building for so long as that case lasts. That is the sort of thing
that practical people do, but I take the point, which everyone
agrees with, which is that ideally you would be under one roof
or on the same campus. President, thank you very much for your
time and the time of your colleagues. I want to continue, if I
may, the theme of working together. As I understand it, only a
few days ago the Justice and Home Affairs Council were talking
about the need for mutual co-operation and they were particularly
interested in mutual exchange of information. That, of course,
is brand new and I wondered what you had in mind and what you
could help us with as to how that exchange of information might
be better in the future. Do you have plans or will you be making
plans that you could share with us in that regard?
Mr Williams: So far as that is concerned,
there are plans, yes. As you know, following the Council's Statement
on 6 June a task force is going to be established involving the
Commission, Europol and Eurojust, and we are looking precisely
at how information exchange can be improved. The idea is that
we should be in a position to report back, I think by the end
of the year, on the progress on that. It is true that there remain
issues. Co-operation is good but it could be better. I think that
is the main message which came from that Council Statement.
Q212 Lord Dear:
I take it from the rather guarded nature of your reply, which
I understand, that you are not in a position yet to share with
us exactly what will happen but you are working on it.
Mr Williams: That is right. There are
already, as you know from the Council Statement, indications of
where the attention should be concentrated, where the task force
should be centring its interest, in particular on the relationship
of Europol and Eurojust in Analysis Work Files, so that is clearly
going to be the main focus of interest.
Q213 Lord Dear:
If you were writing our report for us on this topic how far would
you go? I think we want to get something into the report but I
do not want to push you too far on things which clearly are as
yet unformed. Would it be possible to give us a steer on the sorts
of areas you would be looking at? Is it just on that illustration
or are there other things as well?
Mr Williams: I think it is primarily
from the Council Statement, at least on Analysis Work Files. From
our point of view, if at all possible, and I stand to be corrected
by the President if I am going too far on this, we would like
Eurojust to have the status of privileged partner so far as our
relationship with Europol is concerned. I do not think we do have
that at present and very often it works to our disadvantage in
that we are seen, as it were, as not only a third party but almost
a third state, which is perhaps the wrong way of conceiving our
role which is clearly to be complementary.
Q214 Lord Dear:
Thank you. Could I move on, and I guess I know what your answer
is going to be to this? We are looking also at the structural
links between the two organisations and we have covered a lot
of that already. What would you like to tell us on the record
about the improvements that might be made on the structures between
the two agencies, particularly on the core business? I think probably
you have covered it but is there anything formally you wanted
to say to us on that?
Mr Williams: I think in general terms,
and you have obviously seen that I am being fairly guarded, an
opportunity was probably missed from our point of view in that
there were not provisions for exchange of information on a better
basis than currently exists when the Europol decision was finalised.
We would have welcomed the opportunity to have some kind of automaticity
or at least some kind of systematic exchange of information between
the two organisations. What we are looking for in the amendments
to the co-operation agreement is moving at least some way to ensuring
that information flows between our two organisations are improved.
Q215 Lord Dear:
I do not want to pursue this because time is short and the example
I am going to give is perhaps not altogether relevant, but I had
a career in policing at one stage and I remember way back the
Crown Prosecution Service, which very generally would equate with
your own organisation, were a thousand miles away from the police
in Great Britain. The police, I think, wanted to speak to the
CPS. The CPS did not want to speak to them because they did not
want to compromise their judicial independence. Would I be right
in surmising that that is perhaps one of the problems that you
are having to overcome? Certainly, the two sides, recognising
their respective roles and protecting the essential independence
of both, now work very closely together but I have seen that sort
of reluctance myself on a much smaller scale within one country
and I wondered if it was the same model here.
Mr Williams: My own view would be that
I do not think that is the problem, to be honest, so far as the
relationship between Europol and Eurojust as organisations is
concerned. I think the greater difficulty is the one which was
identified previously, and that is perhaps the reluctance in some
Member States to provide information to Europol, for example,
which can then be adequately shared. I can quite understand the
parallel you draw, I was a prosecutor for the Crown Prosecution
Service, but I do not think it quite reflects the position so
far as the relationship between Europol and Eurojust is concerned.
Q216 Baroness Garden of Frognal:
On a slightly different tack, we have discussed in various places
the issues around language and terminology and I wonder whether
in your particular work there are difficulties in either the common
language that is used or in the interpretations in law in the
different countries and different legal systems.
Mr Lopes da Mota: That is an interesting
issue. Part of our role is just to understand each other, so what
does a particular concept mean according to different legal systems?
We are developing what we might call a common language at Eurojust,
a common approach from a legal point of view. Sometimes we use
the same words but with different meanings. Take, for instance,
the word "prosecutor". What is a prosecutor? We cannot
define exactly because it is a different concept for example for
the Portuguese or the Spanish or the French systems. Even on the
Continent we have different positions, different roles, different
tasks, different types of relations between the different players,
and even the definition of some legal concepts is different because
legal systems are creations of the States. Now what we can observe
in practice is that in spite of the differences we are able just
in this communication to understand exactly what we are expected
or asked to do, and this is important as well from our side in
this area.
Ms Coninsx: I am very grateful for this
question because it has been following us since the start, especially
in the field of terrorism. We started in 2001 and we managed to
have our first operational meetings in June 2001 but we did not
understand each other because terrorist groups did not exist in
all the concerned countries dealing with Islamist extremist terrorism.
Then we had the 9/11 atrocity and we had lots of initiatives at
the legal legislative level and we have seen the impact of the
Council Framework Decision giving us for the first time in history
a common approximated so-called harmonised approach, and now in
the 27 we have the same comprehension of what is a terrorist group,
and now we know what we are talking about. Of course, the UK,
France, Spain, the most experienced countries have had a law,
they knew what they were talking about. We are talking about the
24 other countries which are not so much involved in terrorism
and this is what we have tried to do throughout our annual reports,
and also to influence decision makers in other matters, like paedophilia
on the internet. We have seen that there are different levels
of sexual age which are leading to different approaches. The viewing
of pornographic images on the internet is not an offence in all
the Member States. This is what we will put in our next report,
"Please work on this". We need more than an approximation
because it is not only about communication and 23 languages. It
is also about translating the physical fact with the criminal
intent into a provision which is understandable by all. We have
had other meetings where we were stuck between two countries,
France and the UK, where the French asked for une confrontation
de témoins whereas the UK representative was speaking
as if he was falling out of heaven because it does not exist in
your system. It is also not only about harmonisation of legislation
but also about criminal procedure law. That is what we are working
on. Let us have a common basis, a common denominator, and then
we will be able to be more effective. We can already work at this
point because that is our added value. That is what we are doing
during co-ordination meetings, making it possible that the participants
around the table understand one another.
Q217 Lord Marlesford:
I would like to go back if I may, President, to the linkage, particularly
as it relates to the Analysis Work Files. I would like to know
specifically what the benefits of Eurojust access to the Analysis
Work Files are in practical terms, and perhaps you would take
terrorism because it is an easy one to describe. For example,
we have had a lot of evidence about the fact that you are physically
separated, but nowadays with computers you are not separated really.
For example, can you log directly into the Analysis Work File
or would you like to be able to? Would it help you in following
leads in other countries or other situations to see what is in
them? We had a description from Europol that they have a mass
of information and they distil that for their particular purposes
but perhaps you could distil it if you had access to it for your
purposes.
Mr Lopes da Mota: We do not need to have
access to the database itself. What we need is to work on the
basis of the analytical work that is done by Europol and that
is the core activity of Europol. Then if you have the result of
the analysis you have a full picture and you know at that moment
that there is a criminal organisation that is acting in different
countries and they have committed different acts that constitute
criminal offences. Then we have to say, okay, here we have a basis
for undertaking an investigation or prosecution in this area,
and that is the time for Eurojust to act. The most intense power
of Eurojust is to ask national authorities to undertake an investigation
or prosecution, to co-ordinate between themselves, to accept that
one state is in a better position than another one to prosecute.
The work done by Europol in providing this basis could be an excellent
start in order to be more effective, to have an overall approach,
the co-operative approach that Miche"le mentioned before,
and then to involve different bodies, different jurisdictions,
which can co-ordinate among themselves, and then to define common
strategies and help to develop successful investigations, to exchange
letters of request complying with the legal requirements. This
is an important point which Miche"le has already mentioned
but I would like to underline this point because there may be
difficulties at this moment that are not so much related to the
definition of types of crimes. They are mostly related to the
procedural criminal law, the formalities we have to observe, and
then, when Member States say, "Okay, I cannot accept this
evidence because in the requested country you are dealing with
your legislation and this is not acceptable from the point of
view of our legislation". This is very important from the
point of view of our tasks in order to prevent these types of
problem. I will give you an example. We had an investigation in
my country and we needed a document that was crucial to be used
as evidence in trial. That document was in another country, we
organised everything, we put the prosecutors and judges in communication
and a letter rogatory was sent. Everything was agreed. But then
the document was obtained in the context of a home search that
took place during the night. It was gathered in accordance with
the legislation of the requested state, it was sent to my country,
and then it could not be used in trial because the Portuguese
legislation says that in that type of crime it is not possible
to make these searches during the night, between midnight and
six in the morning, so that document could not be used in trial
and the person could not be convicted. This is a very small example
that shows how difficult it sometimes is just to take into consideration
all the procedural requirements and formalities, and this is a
main problem we have to address in our work. In relation to the
main types of crime we have more or less common legal definitions.
They come from international conventions, international instruments
that have already defined them and then it is a matter of implementation
of these conventions in domestic legislation. I do not know if
Aled wants to add something to this point.
Mr Williams: No, that seems a very full
answer from the President. What we do not want to do at Eurojust
is try to duplicate the analytical work of Europol for which they
are far better equipped. That is not really our role.
Q218 Lord Young of Norwood Green:
I think we have touched on this area anyway but the statement
at the June 2008 Justice and Home Affairs Council envisages changes
to the procedure for Eurojust's participation in an Analysis Work
File. What specific changes are envisaged and how will they improve
Europol/Eurojust co-ordination?
Mr Lopes da Mota: This is the main point
and it is one of the reasons for setting up this task force that
is of course in the declaration of the Council. The point is that
currently we are participating in six Analysis Work Files and
we are about to participate in another six, so that means 12 this
month. We are considered experts by third parties so we are invited
by Europol on a case-by-case basis to provide our expertise. This
is the starting point, and the point is what is expertise from
a body which also has to deal with criminal investigations and
prosecutions? We can assist by giving legal advice but for that
we need to know what the case is about. That means we need information
on the content of the criminal information itself. Otherwise we
cannot provide it because our business is judicial co-operation,
so we need to know the facts and then we can see what the law
is and what is to be done on this basis. That means the legal
instrument of Europol, the Convention, and the new Decision do
not have mirror provisions. That means we have provisions in the
Eurojust Decision saying that Eurojust shall assist the competent
authorities of Member States at their request in ensuring co-ordination
in particular on the basis of Europol's analysis, and we do not
have an equivalent provision in the Europol instrument, and it
also says that we may assist Europol in particular by providing
opinions based on the analysis carried out by Europol, and you
do not have a similar provision. That was the point that was discussed
in Brussels in the Article 36 Committee and we have provided our
contribution regarding the need to find a better basis for co-operation
on this point. Last year Eurojust used the powers of Article 7
of the Eurojust Decision once. We have dealt with 1,085 cases.
We are convinced that if we have this result from the work of
Europol that enables Eurojust on a more systematic basis to take
more and more initiatives. That means being more efficient in
prosecution and judicial co-operation and better co-ordination.
From our point of view this is crucial for being effective against
crime in Europe. What happens currently is that the Danish Protocol
that allows Europol to invite Eurojust to be associated is not
a sufficient basis for exchanging information, that is the point,
in order to allow Eurojust to exercise these functions. We intervened.
We proposed that the Europol Decision should have a similar provision
but it was not possible and then we insisted on the need to work
on the co-operation agreement and this was accepted by the Council.
That means we now have six months to identify the points of our
co-operation agreement in order to provide this basis. We have
sent this contribution to Brussels and we are very happy to send
a copy to you on our point specifically because this is crucial.
Q219 Lord Young of Norwood Green:
So in summary if I said you were breaking down the barriers to
improve your ability to co-operate and improve your successful
prosecutions, et cetera, based on the availability of information,
is that a reasonable summary?
Mr Lopes da Mota: Yes.
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