EU: Unaccountable undercover teams set up
01 May 2002
Quite unnoticed, and unreported, the EU's Justice and Home Affairs Council adopted at their meeting on 25/26 April, without debate (an "A" Point), a "Recommendation establishing multinational ad hoc teams for gathering and exchanging information on terrorists". The Recommendation, is intergovernmental (ie: outside of EU treaties) and is not binding on EU states and so there was no obligation to refer it to national parliaments or to the European Parliament for scrutiny.
The discussions made clear that the object of these ad hoc teams is not to arrest and bring suspects to court - and thus they would not compete with existing EU plans for the creation of "joint investigative teams" for criminal offences. Rather small groupings of EU states - led by Spain and Italy - will set up unaccountable, undercover teams of police and internal security officers and agents to target and place under surveillance suspected groups and individuals.
"There is no need for rules of procedure”
Why would EU governments adopt this Recommendation when they had already agreed, on 6 December 2001, on a "Council Framework Decision on joint investigation teams" which includes the provision that:
The Council considers that such teams should be set up, as a matter of priority, to combat offences committed by terrorists
What distinguishes this Framework Decision on joint investigative teams from the Recommendation on ad hoc multinational teams is that the former was: subject to parliamentary scrutiny, lays down rules of procedure (eg: allowing for the use of "Information lawfully obtained") and contains provision for civil and criminal liability. The Recommendation contains no such provision, and for a very good reason.
The first report from the Spanish Council Presidency set out the explicit purpose (29.1.02) to tackle terrorist groups "and their support networks". It argued that there was an "operational shortfall" in the "case of non-judicial or pre-judicial operational investigations" by "law enforcement or intelligence agencies". Further that "many activities" by terrorist groups:
which directly or indirectly harm Member States' interests or national security, do not come under criminal legislation, not being criminal offences, and thus do not and cannot give rise to any actual judicial proceedings
The proposal was that teams should be set up "made up of specialists from the law enforcement and intelligence agencies" for:
investigation, information-sharing, searching, tracing and any other effective action generally in combating terrorism, in specific operations in any European Union country
The Spanish Presidency organised a Seminar on 27/28 February in Madrid attended by officials from all member states. Presentation were made by delegates from France, Greece, Italy and Spain. The meeting concluded that there was "a serious terrorist problem in the EU, generated by local groups and violent radical Islamic groups" which required the intervention of "pro-active" multinational teams collecting "information". It proposed that a series of "Recommendations" should be adopted which included:
There is no need for rules of procedure (flexible framework)" [and] "Flexibility, confidentiality and mutual confidence are necessary for the work of these teams" [and logically] "The main objectives should be approved by common agreement of all parties participating in the multinational teams
The second report from the Spanish Presidency and first draft of the "Recommendation" stated that there would be "no danger of conflict or overlap" between this proposal and the Framework Decision on joint investigative teams as: "they operate in quite different spheres" because the operations of the ad hoc multi-national teams: "do not come under criminal legislation, not being criminal offences, and thus do not and cannot give rise to any actual judicial proceedings"
There was some opposition from the EU member states to the "Recommendation". At a meeting of<