Vermeulen, Gert

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Ghent University Academic Bibliography

Europol and the Criminal Law:Approximation of Substantive Crimesand Procedural Rules as Prerequisitefor Cross-Border Task Forces ?Prof. dr. Gert VermeulenGhent University6 October 2000Seminar “A Legal Framework for Europol”Academy of European Law, TrierStructure– methodology - sources– preliminary questions/remarks– link between approximation criminal law andEuropol?– approximation criminal law as a prerequisitefor Europol’s extended powers?– actual prerequisites for Europol’s extendedpowers1. Methodology - Sources– TEU (post-Amsterdam/October 1997)– Vienna action plan (December 1998)– Tampere European Council (October 1999)– OC millennium strategy (March 2000)– mutual assistance convention (May 2000)– draft implementation plan on mutual recognition(to be adopted in December 2000)– draft decision setting up Eurojust          (December 2001)TEU– 3rd pillar TEU: Articles 29-42– common action in the fields of– police co-operation (Article 30 TEU) – judicial co-operation (Article 31 TEU)– new  instruments– framework decisions– 3rd pillar directive- no direct effect– for the purpose of approximation of the Member States’ lawsand regulations- i.e. in the field of substantive criminal law– decisions– no direct effect– for any purpose but approximationVienna Action Plan– December 1998– Council/Commission action plan on how best toimplement the provisions of the A’dam Treatyon an area of freedom, security and justice– Para 10: the aim of the Treaty is not tocreate a common territory where uniformdetection and investigation procedures wouldbe applicable to all law enforcement agenciesin Europe in the handling of security mattersTampere European Council– October 1999– 1st EU summit ever of heads of state andgovernments specifically devoted to JHA– new developments, announced at the summit– development towards mutual recognition– establishment of Eurojust– with regard to criminal law, efforts to agree oncommon definitions, incriminations and sanctionsshould be focused in the first instance on a limitednumber of sectorsOC Millennium Strategy– JHA Council March 2000– adoption of a ‘European Union strategy forthe beginning of a new millennium’ in the fieldof prevention and control of organised crime– = follow-up action plan to the EU action plan tocombat organised crime, adopted in April 1997– setting the lines/goals to be followed/achieved inthis area in the coming years– 39 detailed recommendations in various fields andsetting target dates to implement themMutual Assistance Convention– additional to traditional multilateral legalinstruments– Benelux– CoE– bilateral treaties– Schengen level– tough negotiations: 1996-2000– many new developments, inter alia– forum regit actum– joint investigation teamsForum Regit Actum– 1962 Benelux/1959 CoE: locus regit actum– forum regit actum– undertaking to comply with formalities/proceduresexpressly indicated by the requesting state, providedthat these are not contrary to its fundamentalprinciples of law– rationale: procedural and investigative actionsrequested for should, to a maximum extent, beregarded as an extra-territorial extension of thecrimininal investigations or procedures in forum state– international compatibility of evidence gathering is ofgrowing importance– not applicable as regards controlled deliveries,undercover operations and joint investigation teamsJoint Investigation Teams (1)– composed of judicial, police and/or customsofficers or even of officials of internationalorganisations/bodies (e.g. Europol)– may be set up for a specific purpose and fora limited period– where difficult and demanding investigations havinglinks with other states are required– where coordinated, concerted action between thestates concerned is necessary– headed and led by an official from the statewhere the team is operating– seconded team members operating in anotherstate shall be bound by the law of that stateJoint Investigation Teams (2)– apart from being allowed to be present wheninvestigative measures are taken, seconded teammembers may be entrusted with the task ofcertain investigative measures – team members may request their ownauthorities to take the necessary investigativemeasures in their own state as if they would betaken in a domestic investigation– information lawfully obtained by seconded teammembers may be used in their own state– also in Naples II Convention (different rules)Draft Implementation Plan onMutual Recognition– Tampere European Council– implementation plan of mutual recognitionprinciple to be adopted in December 2000– 4 categories– obligation to taking account of earlier, final judicialdecisions– recognition of procedural judicial decisions– recognition of convicting judicial decisions– recognition of decisions taken in the context of thefollow-up of criminal judgements– very ambitious French Presidency proposal– programme of measures, designed as a package– concerning all 4 above mentioned categoriesDraft Decision Setting up Eurojust– Tampere European Council: political recognitionneed to establish judicial counterpart for Europol– international body, composed of nationalprosecutors, magistrates or police officers ofequivalent competence, detached from each MS– to work closely together with the EuropeanJudicial Network and Europol– legal instrument to be adopted by end 2001– ongoing work: German proposal/4-Presidencies’proposal (Portugal, France, Sweden, Belgium)– draft decision setting up a Provisional Judicial Co-operation Unit– draft decision setting up Eurojust2. Preliminary Questions/Remarks– regarding the current developments withregard to– approximation of criminal law– substantive criminal law– procedural criminal law– Europol’s extended powers, including thepossibility to participate in cross-border taskforcesApproximation of Criminal Law (1)– substantive criminal law– proper legal basis for approximation– Article 29 TEU: approximation of rules on criminal matters, inaccordance with the provisions of Article 31(e)– Article 31(e) TEU: progressively adopting measures establishingminimum rules relating to constituent elements of criminal actsand penalties in the fields of organized crime, terrorism andillicit drug trafficking (i.e. substantive criminal law only)– via framework decisions (Article 34(2)b)– in connection to that: no proper legal basis forrecourse to framework decisons for the purpose of– introducing binding rules on extraterritorial (regional universal)jurisdiction (examples: protection against counterfeiting inconnection with the introduction of the e, through penal andother sanctions -combating fraud and counterfeiting of non-cash means of payment) -convention needed– mutual recognition (example: orders to freeze assets)Approximation of Criminal Law (2)– procedural criminal law: no proper legal basis forapproximation– a contrario ex Article 29 TEU juncto Article 31(e) TEU– Article 31(c): ensuring compatibility in rules applicablein MS as may be necessary to improve co-operation– Para 10 Vienna action plan (supra)– whereas the OC millennium strategy foresees– instrument introducing possibility of mitigating onus of proofregarding source of assets of a person convicted for OC-relatedoffence– instrument on confiscation regardless of presence of offender– approximation of national legislation on criminal proceduregoverning investigative techniques, so as to make their use morecompatible and render OC investigations more efficient– instrument on position/protection of witnesses/persons co-operating with the judicial systemEuropol’s Extended Powers (1)– Article 30(2) TEU: within 5 years– Europol must be enabled to facilitate/support thepreparation/encourage the coordination and carryingout, of specific investigative actions by the MS,including operational actions of joint teams comprisingEuropol representatives in a support capacity– a proper legal basis must be created allowing Europolto ask the Member States to conduct/coordinatetheir investigations in specific cases (i.e. right ofinitiative)– Vienna Action Plan– joint investigative teams & adoption of additional legalbasis within 2 years– feasibility study on setting up of database of pendinginvestigations within framework Europol Convention?Europol’s Extended Powers (2)– Tampere European Council– joint investigative teams to be set up without delay, asa first step, to combat trafficking in drugs and humanbeings as well as terrorism– in near future: should be authorised to initiate, conductor coordinate investigations or create joint teams– OC millennium strategy– target date: 31 July 2001 (= 23 months after A’dam)– ongoing discussions– joint teams– anticipated entry into force Article 13 mutual assistanceconvention versus revision of Europol Convention– revision Convention necessary (two types)– right of initiative/coordinating role investigations– revision Convention necessary, which is not the prevailing opinion– quid role Eurojust (infra)3. Link between ApproximationCriminal Law and Europol= EU Core Crimes Concept– process of approximation of substantivecriminal law (1)– Article 29 TEU: preventing and combating (organized)crime, in particular terrorism, trafficking in personsand offences against children, illicit drug and armstrafficking, corruption and fraud– Article 31(2) TEU: progressively adopting measuresestablishing minimum rules relating to constituentelements of criminal acts and penalties in fields ofOC, terrorism and illicit drug trafficking– process of approximation substantive criminal law(2)– Tampere European Council: substantive criminal lawapproximation efforts to be focused in 1st instance on alimited number of sectors, such as financial crime,drugs trafficking, trafficking in human beings,particularly exploitation of women, sexual exploitationof children, high tech and environmental crime– OC millennium strategy: approximation at least for:financial crime (money laundering, corruption, ecounterfeiting, tax fraud), drug trafficking andterrorism related offences, trafficking in human beings(particularly exploitation of women), sexual exploitationof children, high tech (computer fraud and offencescommitted by means of Internet) and environmentalcrime– competence ratione materiae of Europol– mandate as contained in Convention: OC - traffic inhuman beings (extended definition) -connected moneylaundering activities– extended mandate: terrorism, counterfeitinge/money/means of payment– political consensus on extension to money laundering ingeneral– proposal to widen mandate to all crimes connected tocrime types within mandate (Portuguese Presidency)– proposal to technically extend TECS to all crimes listedin annex and to follow normal procedure Article 2 toextend mandate (Belgian Presidency?)– proposal to simply extend mandate to all crimes listed inannex (Europol?)– link with competence ratione materiae Eurojust– offences within Europol’s (extended) mandate (i.e.including: child pornography, terrorism, counterfeitingof money/means of payment)– + computer crime, protection of the EC’s financialinterests, laundering of the proceeds of crime– connected forms of serious crime4. Approximation as a Prerequisitefor Europol’s Extended Powers?– substantive criminal law– no need for approximation in addition to existingoperational/law enforcement definitions of crimes withinEuropol mandate– Convention: forms of crime within mandate shall be assessed bycompetent national authorities in accordance with own national law– = realistic and sufficient– output Europol not dependant on approximation– initial texts on mutual recognition: approximation needed to theextent that non-approximation would prevent mutual recognition(no functional link between approximation and Europol powers)– procedural criminal law– approximation (moreover lacking a proper legal basis)unrealistic/unnecessary in addition to– forum regit actum principle (supra)– mutual recognition principle (supra)5.  Conclusion: Actual Prerequisitesfor Europol’s Extended Powers– recognition of information lawfully obtained byforeign team members in joint team– provided for in mutual assistance convention– participation Eurocops in joint teams– revision Europol Convention– coordination investigations– limitation (regional universal) extra-territorialjurisdiction claims (opposite to current trend)– improved application ne bis in idem principle– Ghent University research project: draft EU conventionconcerning improved application of the ne bis in idem principle(reinforcing SIC provisions, apllication to final decisions thatprevent prosecution, following penal mediation or granting ofimmunity to persons co-operating with the judicial system, ...)– coordination investigations (continued)– implementation mutual recognition with regard to– pending investigations/ongoing prosecutions in other MS– aiming at settlement of conflicting claims of jurisdiction andavoiding multiple prosecutions for the same facts– foreseen in Ghent University draft EU convention concerningimproved application of the ne bis in idem principle (supra)– principal coordinating role to be attributed to Eurojust– judicial counterpart for Europol– rationale establishment Eurojust: structural measures needed tofacilitate coordination of investigations and proceedings coveringthe territory of several MS by improving/facilitating co-operation between their investigating/prosecuting authorities– ask MS to undertake investigation, to prosecute or to allow thatanother MS may be in a better position to do so– ensure that MS’ competent authorities are informed reciprocallyon interrelated investigations and prosecutions under way– must be informed of requests to set up joint investigation team– in close co-operation with Europol– remaining question: criteria?Discussion/Questions

Europol and the criminal law: approximation of substantive crimes and procedural rules as a prerequisite for cross-border task forces?

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Europol and the criminal law: approximation of substantive crimes and procedural rules as a prerequisite for cross-border task forces?

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Ghent University Academic Bibliography