'THE ROLE OFEUROJUST AND ITS DIRECT COOPERATION WITH THE EUROPEAN JUDICIAL NETWORKING AS WELL AS THE COMPETENT NATIONAL AUTHORITIES FOR A COMBINED FIGHT AGAINST CRIMINALITY'
The European Council (Tampere, October 1999), decided on the setting up of EUROJUST, a unit composed of prosecutors, magistrates or police officers of equivalent competence as a means to facilitate the optimal coordination of action for investigationsand prosecutions covering the territory of more than one Member States. By the Council Decision 2002/187/JHA the EUROJUST was set with a view to reinforce the fight against serious crimes.
For this reason it is important all M-S and mainly their competent authorities to:
a) be informed about the existence of these fundamental changes and adjust accordingly their function and procedures of work,
b) promote systems of cooperation between competentnationally and/or trans-nationally according to the new conditions
c) harmonize accordingly their legislation aiming not only to penal laws and procedures, but also to their influence in the constitutional and fundamental human rights which citizens may feel that are offended.
The Public Prosecutor's Court of First Instance of Athens,consider that a global and in depth examination of this new legal instrument is of an immediate necessity in relevance to the questions that may arise by the competent national services and the expression of worries by the policy makers that should be satisfied. This service applied for a co- financing by the competent authority of the European Commission (GROTIUS PENAL Programme). This application was kindly adopted and we were also honored with the acceptance to participate in the Conference onbehalf of the Commission of Mrs. Gesele Vernimmen. Because of this, our Ministry decided to put it under its auspices as a main activity of ours during the Greek Presidency of the European Council of 2003.
This project was realized including: a) the organization ofa Conference in Athens, where three representatives (the responsible functionary of the Ministry of Justice, a public prosecutor or judge and a police officer) from each M-S and two representatives from the countries in adhesion were invited to participate, as well as representatives from EUROJUST, EUROPOL and European Judicial Network, b) the publication and distribution of an informative manualin English and Greekwith all data relating to the legislation in force and the existing structures in each European State though a questionnaire that was prepared the by Public Prosecutors Court of First Instance of Athens and forwarded to and answered by all 25 states participants in the Conference and d) the facilitation of collaborations and contacts between competent Community institutions and corresponding national authorities.
In more detail:
In the Conference (6/7 of March 2003), more than 60 representatives from Member and candidate countries and from Bulgaria and at least 100 Greek public prosecutors, judges as well as other representatives of competent authorities (police, bar Associations, ministries etc) participated in seances and work-shops receiving information by experts (members of the EUROJUST, EUROPOL and European Judicial Networkservices, Professors of Penal Lawfrom Greece and abroad, functionaries of the Commission, politicians etc) about the aims of these innovations, the procedures of their functioning and cooperation and the needs they cover as well as explanations, clarifications and interpretations of articles that are not clear enoughto the participants.
In the informative manual, published after the Conference, all conclusions of the work-shops and plenary seances were elaborated as well as other information collected through the above mentioned questionnaire. In its 330 pages this manual, that was published in English and Greek, includes also conclusions and recommendations agreed upon as well as a final assessment of the present legal framework of mutual legal assistance in national and international level.
The main points of this valuable information collected are summarized as follow:
1. From the brief analysis of the legal framework of mutual legal assistance at the national level the lack of harmonisation in the national approaches to the topic becomes rather evident. 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 of 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, other Member States require ratification of international agreements whereas other 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. The question is, whether the issue is indeed better regulated via international agreements.
2. The brief analysis of the present framework of mutual legal assistance at the international level (the European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters; the Additional Protocol of 17 March 1978 to the European Convention on Mutual Assistance in Criminal Matters; the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders; the Council of Europe Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime; and the United Nations Convention of 19 December 1988 against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) has demonstrated beyond doubt the number and extent of problems by which it is plagued such as the country of offence, theConvention applicable, the dual criminality, the grounds for refusal, the reciprocity etc.
As a result, the current picture of legal assistance amongst EU Member States at the international level is far from satisfactory. What is needed is a common, uniform approach to the issuewith the same provisions applicable without reservations and exemptions to all EU Member States.
3. The main legal framework of mutual legal assistance at the EU level at present are a) 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 and b) Eurojust and its contribution to mutual legal assistance in the EU
This project has demonstrated that mutual legal assistance is a sine qua non tool in the combat against organised crime which could make the area of freedom, security and justice in the EU a reality for its citizens. However, the fragmentation of EU law in this area, which is an inevitable result of its subjection to the third intergovernmental pillar, prohibits effective judicial cooperation in criminal matters. This is accentuated by the lack of harmonisation in the national criminal laws of the soon to be 25 EU Member States.
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 draft European Convention for Europe places the creation of an area of freedom, security and justice amongst the two main priorities for the EU. Perhaps this will create the necessary impetus for further EU legislation in the area of mutual legal assistance in criminal matters, and for the full and complete implementation of existing instruments by the Member States.
4. The above conclusionsmay lead to the following COMMENDATIONS:
a) In view of the increasing numbers of beneficiaries of the four freedoms introduced by EU law (persons, capital, goods and services), the amplified transnational criminality in the international environment and the augmented focus of the EU to the creation of an area of freedom, security and justice as reflected in the draft Convention for Europe, efforts must be made for the achievement of even closer judicial mutual assistance in the EU;
b) In order to achieve effective judicial cooperation the EU must play a leading role in the international combat against crime though the ratification and implementation of international instruments in this area;
c) As enlargement constitutes a challenge for the acquis, and much more so for EU mutual assistance in criminal matters, the ratification of international and EU Conventions by the new Member States is imperative; this is particularly necessary with relation to the Europol and Schengen conventions;
d) The current position of Member States as to the ratification and application of international Conventions in mutual legal assistance in criminal matters must be clarified in order to counteract the confusion invoked by the fragmentation on EU criminal law;
e) The regime on mutual legal assistance in the area of fiscal and drug must be simplified; the introduction of an EU instrument incorporating existing competing international instruments in this field may prove beneficial;
f) The competence of Eurojust, Europol, OLAF and other actors in the area of mutual legal assistance must be clarified further in order to open the ground for mutual respect and collaboration towards the common aim which is the effective combat of crime;
g) The European Judicial Networks role as a point of contact and source of information for national authorities can be utilised as an efficient and immediate response to the problem of the shyness and insecurity of some national judicial authorities in seeking legal assistance: the availability and accessibility of the EJN must be disseminated further;
h) The mechanism of Eurojust, as the only proactive direct mechanism for judicial cooperation, must be frequently utilised by national authorities in national and transnational investigations and prosecutions;
i) The role of Eurojust as a catalyst for mutual legal assistance must be extended to offences not included in its establishing Council Decision: crime threatens the security and safety of EU citizens who have the right to protection from it; this right can not be limited by competences and types of offences;
j) The implementation of the Council Decision on Eurojust, and especially its Article 42, must be closely scrutinised by the EU in order to ensure that it takes place correctly, adequately and on time;
k) The Solon glossary of legal terms must be completed in order to pave the way for further mutual understanding of the corresponding legal terms utilised by national judicial and police authorities;
l) The use of tele-meetings assisted by interpreters as a means of direct and prompt contact amongst judicial authorities as introduced in Denmark must be adopted by Member States;
m) Training of national competent authorities in the legal and practical developments in the area of mutual legal assistance must be intensified;
n) Direct contact amongst competent authorities must be enforced as it may constitute an effective and quick way of collaboration; for this purpose training of national competent authorities and the provision of fora for the strengthening of contacts must be encouraged;
o) The competence of EU actors in the area of mutual legal assistance must not be limited to the borders of the EU: cooperation with third countries must be encouraged.
5. The main points of the informative manual are based on the responses of representatives of M-S to the questionnaireand those are :
1st question: Is there any need for national legislation to comply with the Council decision of 28.2.2002 establishing EUROJUST in accordance with Article 42 of the Decision?If yes, has the relevant law been enacted or is there a draft law?Did you encounter any problems or barriers?
Many of the countries such as Belgium, France, Germany, Italy, Portugal, Slovenia and Sweden responded that there is a relative need (to a greater or less extent) for coverage, and a draft law is already being prepared. Other countries, such as Ireland, Spain and Poland, despite the fact that they acknowledged the need for such a law, have not yet enacted one, nor was there reference to preparation of a draft law.
In Austria, Bulgaria, Denmark, Estonia and Lithuania, no law is required to establish EUROJUST.Nonetheless, certain of these countries (Finland) have enacted such a law while others such as Austria intend to enact relevant legislation in order to regulate certain procedural issues affecting its operation.
Certain candidate countries such as Bulgaria, Latvia, and the Czech Republic, consider that for the time being itis not possible or necessary to comply with Article42 of the Decision until the date referred to therein, since they have not become Members of the European Union.Nonetheless relevant discussions are being carried out and legislative reforms are being prepared which will be required for compliance with Decision when they do enter the Union.
The main issues dealt with by draft legislation or existing legislation are set out below:
- The binding nature or otherwise of letters rogatory dispatched by EUROJUST to national authorities.Despite the fact that the Council Decision stipulates that these letters rogatory shall not be mandatory for national authorities, certain countries have taken the approach that apart from in the case of certain exceptions, they will be binding.
- The system of communication between EUROJUST National Members and national authorities.Certain countries have taken the approach of establishing a consolidated system in which communication will be conducted via a central prosecuting authority.
- The inclusion of the EUROJUST National Member in the hierarchy of national judicial authorities.This issue is related in particular to the need to establish the independence of EUROJUST, which is not compatible with the subjection of National Members to the orders of more senior figures in the judicial hierarchy.
- The range of powers of the National Member.There is concern particularly in relation to the granting of powers to carry out investigations, commence criminal proceedings, etc.
- The enactment of provisions which will permit Joint Investigation Teams to act on their territory.
2nd question: Which authorities are competent for implementing Articles 6(a), (b), (c), (f), (g) and (g)(i) and (ii), 7(a), (b), (c), (d), 8, 9(5) and 12 of the Decision?
The powers to implement the aforementioned provisions usually lie with the national authorities which are charged with duties of handling extradition or judicial assistance issues.
In certain cases (Latvia, Lithuania, the Czech Republic) the competent authority for implementing all the aforementioned provisions is only considered to be Prosecutor General or senior prosecutor, while in certain cases his competencies have been allocated between theProsecutor General and the Minister of Justice (Bulgaria).
In many countries the local competent prosecutor has been appointed as the competent authority (Austria, Belgium, Germany, Denmark, Italy, Portugal and Sweden) while in a few countries competence has been assigned for most provisions either alternatively or exclusively to investigating judges (France) or general and special investigating officers (Cyprus, Slovenia, Finland).
In order to implement Article 9 of the Decision Germany intends to make it possible to exchange information with all judicial and other authorities which could contribute to the operation of EUROJUST.
Lastly, there are certain cases of countries (Estonia) which have not yet appointed competent authorities.
3rd question: Are there problems in cooperation between competent authorities in your country and the EUROJUST National Member?
In most countries (Austria, Belgium, Germany, Denmark, Spain, Italy, Cyprus, Lithuania, Slovenia, Sweden, Finland) the answers were negative.
Nonetheless, certain problems were identified.The majority of the difficulties confronted by National Members were in relation to access to information maintained by national authorities concerning pending procedures (France), the hesitancy of national authorities to dispatch letters rogatory to EUROJUST (France) and fact that the existence of EUROJUST is not yet widely known (Portugal).
4th question: Was it necessary for your country to enact new national legislation to establish the European Judicial Network in accordance with the joint action of 29 June 1998?
The response from all countries was negative.The only exception was Poland, in which the provisions for joint action where included in a ministerial decision.
5th question: What contribution have the European Judicial Network and EUROJUST made in the sector of judicial cooperation in criminal matters?Mention two examples
The answers to this question show that the distinction between the functions and the contribution of these two bodies has not been clearly understood by certain parties.For example, Denmark considers that their contribution is joint and refers to facilitation and acceleration of mutual judicial cooperation, stressing the primary role of EUROJUST in cases where more than two countries are involved as the main difference only.Nonetheless, most countries identified the contribution of these two bodies in different sectors.
A.The contribution of EUROJUST identified by most countries was primarily in relation to coordination of the activities of proceeding authorities.However, from the responses one can discern a trend towards acknowledging its contribution to general coordination of the activity of all judicial functionaries.
Certain countries (France, Finland) consider that this contribution lies primarily in ensuring technical support to facilitate contacts (which are often multilateral) and cooperation with judicial functionaries in other countries, involved in combating the same crime.The ability to directly identify judicial authorities to which letters rogatory should be addressed, rapid dispatch and provision of information about its progress where mentioned as advantages of EUROJUST in this sector by Belgium and Slovenia.
Others took the approach that the role of the organisation is more substantive.For example, Germany considers that EUROJUST can contribute to coordinating prosecuting authorities during prosecution of crimes committed by the same person in a manner that does not generate problems from the temporal overlap of several procedures taking place in different countries.Moreover, it mentions a relevant case where coordination was achieved between Germany, Spain, Belgium and Finland, while acknowledging that the role of the European Judicial Network is to provide advice and support to public prosecutors and judges who send and received letters rogatory(France).
Certain differences can be identified in responses relating to the type of crimes which EUROJUST can assist in combating.Most countries did not specify precise categories of crimes while certain countries identified the importance of the organisation primarily in international organised crime (Bulgaria, Portugal). Other countries (Italy) consider its role significant in cooperation in combating serious crimes in general, referring to basic sectors in which practical results of such cooperation have been ascertained, such as in combating terrorism and people trafficking (Italy).
Despite the positive assessment of the role of EUROJUST in the foregoing sectors, certain weaknesses in its operation today were also highlighted.Certain countries (Belgium) pointed out that its operation today demonstrates that its contribution is limited to bilateral activities only and there have been no examples of facilitating multilateral cooperation between more than two countries.
B.In relation to the European Judicial Network, its contribution is seen as facilitating international judicial cooperation by means of direct and informal contacts between relevant judicial authorities.In particular the ability of the Network to collect useful information for preparing letters rogatory (for extradition and other issues) and in assessing their usefulness is praised (Belgium, Portugal, Finland).Examples of rapid identification and dispatch of documents from Belgium to Germany thanks to the network were mentioned (Belgium) as was the submission of letters rogatory to a Danish Court to examine a witness within 24 hours, whose testimony was be used in a Dutch court, as well as the ability to carry out investigations in Spain following a request from Denmark which was done in less than 24 hours.
It was also acknowledged that the role of the European Judicial Network is to provide advice and support to public prosecutors and judges who send and receive letters rogatory (France).Other advantages of the network mentioned include accelerating enforcement of letters rogatory, monitoring their enforcement and exchanging information about current national legislation in force (Germany, Portugal, Latvia).
6th question: Provide an outline of cooperation between the European Judicial Network, EUROJUST, and national authorities in such a way that there are no overlaps.
From the responses to this question it can be concluded that certain countries (Germany, Italy, Portugal) consider that there is no overlap in competencies between EUROJUST and the Network and they do not mention any problems in this regard.However, no shared view can be ascertained about the precise limits of the powers of each organisation, particularly if one takes into account the fact that many countries accept that there are no absolutely clear criteria for choosing one or the other.Thus, it seems acceptable to freely choose between one or the other in order to achieve cooperation (Slovenia).A consequence of this fluidity in criteria is that the resolution of related problems is imposed by ad hoc arrangements between the Network's point of contact and the EUROJUST National Member (Denmark).
In order to avoid overlap of competencies, certain countries have appointed employees who coordinate the activities of the two organisations and national authorities.Moreover, instructions are followed about relations between two organisations which were adopted at the Network meeting in Aarhus on 2-3 December 2002 (France).
In order to confront the same problems certain countries are examining the introduction of special legislation (Belgium).
From certain responses it can be concluded that the Network is primarily considered a forum for directly resolving problems faced by judicial authorities, since it operates rapidly and allows for informal communication (Denmark, Italy, Slovenia).The separate role of EUROJUST, on the contrary, lies in strategic planning and identifying means of combating international organised crime, and must be utilised particularly in cases of complex international cooperation, involving two or more countries (Denmark, Italy, Slovenia).Based on the aforementioned function of the two organisations, their competencies must be separated.
7th question: Has the Convention on Mutual Legal Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 been ratified by your country?
Countries which have ratified it: Spain, Portugal
Countries in which a relevant draft law is being debated in Parliament: Italy
Countries in which a relevant draft law is being prepared: Belgium, France, Germany, Ireland, Sweden, Finland
Countries which have not ratified it and which do not mention preparing a draft law: Austria, Estonia, Cyprus, Latvia, Poland, Slovenia, the Czech Republic
Countries which have not ratified it but have adapted their domestic legislation: Denmark, Slovakia
In this project besides the Public Prosecutors Court of First Instance of Athens and our Ministry main partners werethe Prosecutor Service of the Copenhagen Metropolitan Police, the Italian Ministry of Justice, the Court of Slieven ,in Bulgaria where as all relevant services in all Member States and candidate countries of E.U. substantially contributed with there interventions.
For further information please contact Mr. Ioannis Angelis, Public Prosecutor of First Instance in the First Instance Court of Athens.