28 March 2012
EU Justice and Home Affairs (JHA) ministers are set to approve the creation of a European prosecutions unit - "Eurojust". It will be located in the Hague alongside Europol and will coordinate criminal cases with investigating and prosecuting officials from the member states, Europol and other agencies. The measure raises the long-term prospect of Eurojust one day bringing public criminal prosecutions for trial at the European Court of Justice. The Eurojust "unit" is being created on the back of well-documented problems in prosecuting international organised crime cases. However, its mandate is tied to the increasingly broad EU definition of "organised crime" which already goes well beyond the traditional concept of gangsters, Mafia's and traffickers.
A short history?
Eurojust is credited as a "Tampere initiative" (called for in paragraph 46 of the EU's October 1999 summit conclusions). Discussions on the Eurojust proposal can be traced to a working document in February 1999 on the
implementation of the 1997 Amsterdam Treaty posed the following question:
"Is the establishment of a European Public Prosecutor's Office and a penal competence of the European Court of Justice the long-term objective... ?"
According to the minutes of the Europol Working Party of May 1999, "The idea of an European Prosecutors Office was at this moment rejected by all delegations". Nevertheless, nine-months later, the Portuguese presidency had tabled "Exploratory thoughts concerning Eurojust" (the question of giving a penal competence - sentencing powers - to the ECJ is far more contentious and will certainly not progress so rapidly).
Eurojust builds on earlier EU legislation which also provides a workable structure within which the unit will operate. In 1996 an EU Joint Action created a "framework for the exchange of liaison magistrates" which served as guidelines for member states to make bilateral or multilateral arrangements for the exchange of their officials in order to enhance cooperation "by establishing direct links [between] competent departments and judicial authorities". Two years later the liaison magistrates were given a more formal role as the European Judicial Network (EJN) was created.
Paving the way: the European Judicial Network
The EJN has contact points in every member state, meets twice a year, has its own dedicated telecommunications network and is soon to be given its own permanent secretariat. Contact points informally expedite requests for
assistance in criminal investigations or prosecutions (international judicial orders or "letters rogatory") and the network provides up to date information on the different procedures and laws in the member states. Meetings of the EJN cover EU policy on judicial cooperation, international criminal case studies and the development of practical cooperation. The EJN is to be further developed under the EU's "strategy for the prevention and control of organised crime", an action plan adopted in March of this year. Recommendation no 24 (of 39) states:
"The European Judicial Network should be implemented effectively and, where appropriate, further developed, for example by exploring ways in which to equip it with modern tools to make efficient cooperation possible, and ways in which to make it more operational."
In the first of six drafts of the organised crime strategy, this recommendation (then no 49 of 75) originally continued:
"... particularly by ensuring that it can contribute in specific cases to the coordination of the investigation and prosecution of international cases... Consideration of closer involvement of the Network should begin in the field of interception of telecommunications and of special investigative techniques."
UK delegates to the last EJN meeting included two officials from the Home Office, two from the NCIS (National Criminal Intelligence Service) and one each from the Customs and Crown Prosecution services.
Legislating for Eurojust
Eurojust is being proposed by five EU member states and has been drawn-up in three separate initiatives which has made the development of the policy quite difficult to follow. Germany's proposed Draft decision on the setting up of a EUROJUST team was forwarded to the Council General Secretariat. This was followed by two joint proposals from Portugal, France, Sweden and Belgium (the EU Presidencies January 2000-December 2001) on 1) the setting up of a Provisional Judicial Cooperation Unit and 2) the setting up of EUROJUST with a view to reinforcing the fight against serious organised crime. It is this second joint initiative that sets out the structure, mandate and powers of Eurojust. The draft Decisions are scheduled for adoption at the JHA Council on 30 November and the first JHA Council of 2001 under the Swedish Presidency of the EU. Further legislation will be required for Eurojust to become fully operational, but like the Europol Drugs Unit allowed the pre-ratification establishment of Europol, a "provisional unit" will set Eurojust on its way.
According to the minutes of the Council's Article 36 Committee, the proposals aim:
"firstly to facilitate existing judicial cooperation and smooth out disparities and secondly to form a fully-fledged institutional unit."
The Eurojust "team" will be comprised of one "prosecutor magistrate or police officer of equivalent competence" from each member state. The fifteen will decide which among them should be the President and be in charge of running the unit for a four year period. The "management team" will be completed by one or two vice-presidents. Each of the Eurojust officials will be supported by a permanent staff seconded from their member state, the unit will also have permanent interpreters and translators. In addition to the team member, each member state may appoint one or more "national correspondents" to the unit (but who will work within the member states) - these can be members of the EJN and are likely to be so. The salaries of Eurojust officials will be met by the member states, with all other expenses considered "operational expenditure" and met by the Community budget (under Article 41(3) TEU).
Eurojust's competencies (provided for in Article 5 [all articles referred to are from the Draft Decision contained in the joint initiative on the setting up of EUROJUST with a view to reinforcing the fight against serious organised
crime]) are tied to Europol's and cover all types of crime and offences covered by Article 2 and the Annex of the Europol Convention, and the Decisions on the extension of this mandate to include trafficking in human beings, terrorism and the protection of the euro. Additionally, Eurojust is also mandated to deal with "computer crime" (this is likely to be tied to the Council of Europe Convention on "cybercrime" which is currently being negotiated), the protection of the European Communities' financial interests, the laundering of the proceeds of crime [as defined in the 1998 Joint Action on "identification, tracing freezing, seizing and confiscation of] and, like Europol, any "other forms of serious crime committed in connection with the offences referred to in this Article" (Article 5 (h)).
The Article 36 Committee meeting on 6 April 2000 noted contrasting positions on the extent of Eurojust's powers among the member states:
"The discussion had shown that there were different approaches Certain delegations wanted a "light" Eurojust while others insisted on the Tampere conclusions, which spoke of "unity".
Within two months "unity" had prevailed. The Eurojust unit will, "where appropriate", "help coordinate actions for investigations and prosecutions" (Article 8, 1(c)). In order to do this, each Eurojust member shall have direct contact with their relevant national authorities. The 15 officials will, in accordance with their national law, "be empowered to consult the criminal record" database, and (subject to the same reservations) be able to access the
SIS (Article 8,3). When acting within their own territories, Eurojust officials will be subject to national law and procedure. The question of them acting in another state in the future is alluded to:
"Each member state shall define the nature and extent of the powers it grants its national member in its own territory. The other Member States shall undertake to accept and recognise the prerogatives thus conferred" (Article 8, 2)
In respect to the "setting-up" of criminal investigations, Eurojust may make (non-binding) requests for the member states to create a "joint-team" (Article 6 (a)) and must be informed when any of the Member States set one up within the framework of the Mutual Legal Assistance (MLA) Convention.
Joint investigation teams
Joint teams "to conduct criminal investigations in one or more Member States" are provided for in Article 13 of the MLA Convention (adopted in May 2000).
Due to the length of time the Convention took to agree, the joint team provisions have been on the table for five years. The member states are thus loath to wait until the MLA Convention has been ratified by all 15 national
parliaments (see Statewatch vol 10 no 2), so a draft framework decision has been prepared to allow the joint teams to become operational. Although some states will still not be able to participate until they have ratified MLA, others, including the UK, are not constrained in this way. The sticking point has been the role of Europol officials in the investigation teams, who, under the existing limits of the Europol Convention, will be (nominally) restricted to an "operational support" capacity.
Eurojust officials look set to head the fully functioning joint investigation teams of the future, which will be comprised of police officers from the member states involved, Europol agents, Eurojust national correspondents and members of the EJN. The discussion paper "Guidelines on Eurojust" contained the suggestion:
"if all the Member States participating in a joint investigation team agree, a national member of Eurojust may be designated as the team leader."
Intelligence and investigative data
During "coordinated" investigations Eurojust will coordinate meetings between the relevant judicial authorities, and ensure communication and information exchange. The national correspondents will facilitate the exchange of the
relevant data and information. Eurojust may also request the member states to bring prosecutions against suspects, and:
"shall process the data relating to the cases falling within its sphere of competence (Article 10, 1). This data shall relate to the facts involving offences "and to persons who, under the national Member States concerned, are suspected of having committed, or are being prosecuted for, one or more offences defined in Article 5" (Competencies]." (Article 10, 2)
If the member states supply the "data" to Eurojust, it may include:
"(i) the names, forenames and, where appropriate, the aliases or assumed names of the persons being investigated; (ii) the description and nature of the facts, the date on which they were committed, their criminal status, the level of progress of the investigations; (iii) the links with the other Member States concerned, the facts pointing to an international extension of the case and the known details enabling persons likely to be involved in the case abroad to be identified and located." (Article 10, 3(a))
And if the data comes from Europol or another body:
"the names, forenames and, where appropriate, the aliases or assumed names of the persons being investigated; (ii) the description and nature of the facts, the date on which they were committed, their criminal status in the various Member States concerned, the stage of the proceedings in each of them; (iii) an analysis of the coordination requirements." (Article 10, 3(b))
Data protection and supervision
Data access and protection provisions are set out in Articles 1115, on "Access to data", "Confidentiality", "Correction and deletion of personal data", "Time limits for the storage of personal data" and "Data security". The only specific reference to data protection legislation is that:
"EUROJUST and each Member State shall take the necessary measures to guarantee a level of protection for personal data at least equivalent to that resulting from the application of the principles of the Council of Europe Convention of 28 January 1981."(Article 15(2))
The 1981 Convention provides for some fairly broad exemptions from data protection standards where the use of personal information relates to ongoing law enforcement or national security matters.
Like the SIS, Europol and the CIS, a supervisory body to oversee Eurojust will be set-up.
Relationship with Europol
Eurojust is to be located alongside Europol in the Hague (Holland). This has been common knowledge for quite sometime. Yet in all the draft initiatives the Council has refused to concede this point, replacing the Hague with "[...]" (Article 22). The explanatory memorandum states that the HQ will be placed wherever Eurojust can "carry out its mandate to the best effect". Regardless of this point, it is clear that the two agencies will work very closely
indeed. Article 9(1) states:
"The judicial authorities and the Member States and Europol may exchange with EUROJUST any information that is useful for carrying out its tasks"
This appears to have informally solved the problem of how Europol agents can access SIS data, a contentious legal and political issue.
Article 9(2) entitles Eurojust to ask Europol and national judicial authorities for information. In addition, Eurojust is tasked with assisting Europol "at its request", particularly by providing opinions on Europol's analyses (Article 6 (g)).
In addition to the national authorities and Europol, agents from OLAF (the Commission's European Anti-Fraud Office) and liaison magistrates may also participate on a case-by-case basis.
Broader horizons: policy-making and the improvement of judicial cooperation Beyond its operational role (innocuously described as a 'round table' for international investigations), Eurojust will also "contribute towards
simplifying the execution of international letters rogatory" (Article 6, 1(e)) and set-up, in collaboration with the EJN, a document database to provide "legal and practical information", and assist the member states through "advice & research" (Article 6 (f)). Crucially, Eurojust may also draft proposals (to the Council) in order to improve judicial cooperation in criminal matters in the EU (Article 20 (2)).
Decision-making process and a "fledgling" Eurojust
Eurojust has been drawn-up exclusively by members of the law enforcement community and permanent EU officials. It will be formally created through several Framework Decisions of the JHA Council. The European and national parliaments and the public are "consulted" through the publication of the initiatives in the Official Journal, but have no scope for input into the Decisions (the European Parliament will be consulted). National parliaments
will have to ratify any convention(s) implementing Eurojust but will not be able to make any amendments.
Before parliaments are presented with anything to ratify however, a fledgling Eurojust is likely to be up and running. The joint initiative proposing a Council Decision on the setting up of a Provisional Judicial Cooperation Unit, scheduled for adoption in November and taking immediate effect, will allow the future Eurojust officials to meet in Brussels "supported by the infrastructures of the Council". In "close cooperation with the General Secretariat and the EJN" the provisional unit will:
"(a) within the scope of each Member State's national legislation, help to ensure proper coordination between the competent national authorities with regard to investigations and prosecutions involving two or more Member States and requiring coordinated action; (b) facilitate judicial cooperation in criminal matters between the competent authorities of the Member States; (c) assist Member States and the Council, as necessary, with a view to the negotiation and adoption by the Council of the act establishing EUROJUST" (Article 2).
The Decision to set up Eurojust "proper" takes effect three months after its publication in the Official Journal, and will replace the Decision on the provisional unit. The EP's opinion has been requested for l February 2001 so
it is likely that the full Decision will be adopted after this.
Eurojust will be an international law enforcement agency with an operational and policy-making role and its own legal personality, yet provisions on accountability are minimal. Given that it is effectively being created solely by law enforcement officials, subject to the nod of the ministers of state, this is perhaps unsurprising. Not only will Eurojust adopt its own rules of procedure, it will not have to produce an annual report to the public (unlike national agencies with equivalent roles).
The only provisions on accountability are in the form of an annual report to the JHA Council and a "special" report to the European Parliament (for special read shorter and less informative).
Joint Action of 22 April 1996 adopted by the Council on the basis of Article K3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union (96/277/JHA), OJ L 105, 27.4.96; Joint Action of 29 June 1998 adopted by the Council on the basis of Article K3 of the Treaty on European Union, on the creation of a European Judicial Network (98/428/JHA), OJ L 191, 7.7 98; Implementation of the Treaty of Amsterdam and the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam establishing an area of freedom, security and justice with a view to Europol, 6245/99, Limite, Europol 7, 26.2.99; Outcome of Proceedings of the Europol Group on 4 May 1999, 8207/99, Limite Europol 27, 12.5.00; The prevention and Control of Organised Crime: A European Union Strategy for the beginning of the new Millennium, NOTE from Incoming Finnish Presidency to Multidisciplinary Group on Organised Crime, 9423/99, Limite', Crimorg 80, 21.6.00; Outcome of Proceedings of the European Judicial Network on 28 January 2000, 5959/00, Limite, EJN 4 Crimorg 20 Copen 4, 14.2.00; Guidelines on Eurojust, NOTE from Portuguese, French, Swedish and Belgian delegations to Article 36 Committee, 7384/00, Limite, Eurojust I Cats 21, 28.3.00 Outcome of Proceedings of the Article 36 Committee on 6 April 2000 8007/00 Limite, Cats 29 Comix 360, 20.4.00; Outcome of Proceedings of the Article 36 Committee on 18 April 2000, 8004/00 Limite, Cats 28 Comix 360, 20.4.00; The prevention and Control of Organised Crime: A European Union Strategy for the beginning of the new Millennium, OJ C 124, 3.5.00; French Presidency Proposal on Europol support for joint investigative teams, NOTE from incoming French Presidency to Europol Working Party, 9639/00, Limite, Europol 18, 26.6.00; Initiative of the Portuguese Republic the French republic, the Kingdom of Sweden and the Kingdom of Belgium with a view to the adoption of a Decision setting up a Provisional Judicial Cooperation Unit, 10356/00, Limite, Eurojust 7, 20.7.00, Initiative of the Portuguese Republic, the French republic, the Kingdom of Sweden and the Kingdom of Belgium with a view to the adoption of a Council Decision setting up EUROJUST with a view to reinforcing the fight against serious organised crime, 10357/00, Limite, Eurojust 8, 20.7.00.
Statewatch bulletin, June-August 2000, vol 10 no 3/4
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