EN EN

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 7.1.2005 SEC(2004) 1725

COMMISSION STAFF WORKING PAPER

Annex to the

Report from the Commission

on national measures taken to comply with the Council Framework Decision of 13 June 2002 on Joint Investigation Teams

{COM(2004) 858 final}

EN 2 EN

TABLE OF CONTENTS

1. INTRODUCTION ....................................................................................................... 4

1.1. Background .................................................................................................................. 4

1.2. Method and criteria for evaluation for this Framework-Decision ............................... 4

1.2.1. Framework-Decisions ex-Article 34, paragraph (2), point b) of the Treaty on European Union ........................................................................................................... 4

1.2.2. Evaluation criteria ........................................................................................................ 5

1.2.3. Context of evaluation ................................................................................................... 5

1.3. General purpose of the Framework-Decision .............................................................. 6

1.4. General purpose of the report....................................................................................... 7

2. ANALYSIS OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION ........................................................................................ 7

2.1. National measures ........................................................................................................ 8

2.1.1. Denmark....................................................................................................................... 8

2.1.2. Germany....................................................................................................................... 9

2.1.3. Spain........................................................................................................................... 10

2.1.4. France......................................................................................................................... 12

2.1.5. Latvia ......................................................................................................................... 13

2.1.6. Lithuania .................................................................................................................... 14

2.1.7. Hungary...................................................................................................................... 15

2.1.8. Malta .......................................................................................................................... 17

2.1.9. Netherlands ................................................................................................................ 17

2.1.10. Austria ........................................................................................................................ 20

2.1.11. Portugal ...................................................................................................................... 21

2.1.12. Finland ....................................................................................................................... 22

2.1.13. Sweden ....................................................................................................................... 23

2.1.14. United Kingdom......................................................................................................... 25

2.2. Analysis of the legislation in progress ....................................................................... 27

2.2.1. Belgium...................................................................................................................... 27

2.2.2. Italy ............................................................................................................................ 27

2.2.3. Cyprus ........................................................................................................................ 28

2.2.4. Hungary...................................................................................................................... 28

2.2.5. Slovak Republic ......................................................................................................... 28

3. CONCLUSIONS........................................................................................................ 29

ANNEX ................................................................................................................................... 32

EN 3 EN

1. INTRODUCTION

1.1. Background

The growth of cross-border crime and the spread of terrorism prompted Member States to adopt a legislative instrument providing for harmonised legislation which establishes clear rules on the setting up and operating of joint investigation teams. In practice, informal teams were already operating, but there was no common legislation in place to govern their action.

A first step in this direction was the 2000 Convention on Mutual Assistance in Criminal Matters1 (hereinafter referred to as “the 2000 Convention”), which deals with joint investigation teams (Article 13) and also provides for many other instruments to combat cross-border crime, such as spontaneous exchange of information, covert investigation, controlled deliveries, etc.

Owing to the delay in ratifying the 2000 Convention, the Council adopted the Framework Decision on joint investigation teams2 (hereinafter referred to as ”the Framework Decision”) on 13 June 2002, to provide a more timely means of enhancing the operation of joint investigation teams.

The Framework Decision will cease to have effect when the Convention on Mutual Assistance in Criminal Matters has entered into force in all Member States (Article 5).

Under Article 4 of the Framework Decision, Member States have to take the necessary measures to comply with the provisions of the Framework Decision by 1 January 2003.

Following the terrorist attacks of 11 March 2004 on Madrid, in its Declaration of 25 March 20043, the European Council urged Member States to adopt any measures that remain necessary to fully implement the Framework Decision by June 2004 and to ensure that Europol and Eurojust representatives are associated with the work of joint investigation teams as far as possible.

1.2. Method and criteria for evaluation for this Framework-Decision

1.2.1. Framework Decisions, Article 34, paragraph (2), point b) of the Treaty on European Union

This Framework Decision is based on the Treaty establishing the European Union (TEU), and in particular Article 34(2)(b) thereof. Framework decisions are binding upon the member States as to the result to be achieved but leave to national authorities the choice of form and methods. They have no direct effect.

1 Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European

Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197/1 of 12.7.2000

2 Council Framework Decision of 13 June 2002 on Joint investigation teams, OJ L 162/1 of 20.6.2002 3 Council document 7906/04 JAI, 100

EN 4 EN

1.2.2. Evaluation criteria

To be able to evaluate on the basis of objective criteria whether a framework decision has been fully implemented by a Member State, some general criteria are developed with respect to directives which should be applied mutatis mutandis to framework decisions, such as:

1. form and methods of implementation of the result to be achieved must be chosen in a manner which ensures that the directive functions effectively with account being taken of its aims4;

2. each Member State is obliged to implement directives in a manner which satisfies the requirements of clarity and legal certainty and thus to transpose the provisions of the directive into national provisions having binding force5,

3. transposition need not necessarily require enactment in precisely the same words in an express legal provision; thus a general legal context (such as appropriate already existing measures) may be sufficient, as long as the full application of the directive is assured in a sufficiently clear and precise manner6;

4. directives must be implemented within the period prescribed therein7.

Both instruments are binding ‘as to the results to be achieved’. That may be defined as a legal or factual situation, which does justice to the interest, which in accordance with the Treaty the instrument is to ensure8.

The general assessment provided for in Article 4, of the extent to which the Member States have complied with the Framework Decision, is -where possible- based on the criteria mentioned above.

1.2.3. Context of evaluation

A first preliminary observation concerns the (legal) context and follow up of the evaluation report. Whereas the Commission has within the first pillar the authority to start an infringement procedure against a Member State this possibility does not exist within the TEU. The nature and purpose of this report differ, therefore, from a report on the implementation of a first pillar directive by Member States. Nevertheless, as the Commission fully participates in third pillar matters9, it is coherent to confer on it a task of a factual evaluation of the implementation measures enabling the Council to assess the extent to which Member States have taken the necessary measures in order to comply with this Framework Decision.

4 See relevant case law on the implementation of directives: Case 48/75 Royer [1976 ECR 497 at 518]. 5 See relevant case law on the implementation of directives: Case 239/85 Commission v. Belgium [1986]

ECR 3645 at 3659. See also Case 300/81 Commission v. Italy [1983] ECR 449 at 456. 6 See relevant case law on the implementation of directives for instance Case 29/84 Commission v.

Germany [1985] ECR 1661 at 1673. 7 See substantial case law on the implementation of directives, for example : Case 52/75 Commission v.

Italy [1976] ECR 277 at 284, See, generally, the Commission annual reports on monitoring the application of Community law, for instance COM (2001) 309 final.

8 See PJG Kapteyn and P. Verloren van Themaat ‘Introduction to the Law of the European Communities’, third edition, 1998, p. 328.

9 Article 36 (2) Treaty on European Union.

EN 5 EN

In order to make this kind of evaluation, the Framework Decisions must not be regarded as a series of fragmentary provisions, but as a whole: a global system whose elements are inevitably intertwined. On this view effective implementation very much depends on the consistency and coherency of national provisions put in place by the member States according to the fundamental principles and objectives of the framework decision itself.

Difficulties in the assessment have also arisen from the fact that the Framework Decision was created by taking over Articles 13, 15 and 16 directly from the 2000 Convention. Provisions concerning joint investigation teams were agreed in the 2000 Convention as part of a complex system involving several instruments concerning co-operation in combating cross-border crime. The Framework Decision on joint investigation teams does not reproduce the whole of the 2000 Convention and this could lead, in this transition period before the entry into force of the 2000 Convention, to a lack of clarity concerning aspects such as the authority competent to set up the teams or the fact that certain investigative activities (for example covert investigation or controlled deliveries which may usefully be performed by the team) are not governed by the Framework Decision.

In this light, the fact that the 2000 Convention has now been ratified by eight Member States (Denmark, Estonia, Spain, Latvia, Lithuania, the Netherlands, Portugal, Finland) must be taken into account. Certain Member States which ratified the 2000 Convention also adopted specific legislation enacting the Framework Decision (Spain, Latvia, Portugal, Finland), whereas others implemented the Framework Decision by means of the law ratifying the 2000 Convention (Denmark and the Netherlands). One Member State (Lithuania) forwarded only the text of specific domestic legislation without annexing the ratifying law, and one (Estonia) did not give any information on implementation, despite having ratified the 2000 Convention.

1.3. General purpose of the Framework-Decision

The general purpose of the Framework Decision is preventing and combating crime through closer co-operation between police forces, customs authorities and other competent authorities in the Member States.

Joint investigation teams already exist in practice and law enforcement authorities already work together in teams when the fight against cross border criminality so requires. Basically, the Framework Decision aims to provide Member States with an harmonized legislation dealing with clear rules on the cases in which the setting up of a joint team is appropriate, the composition of the team, the powers of the members of the team, the leadership of the team, the operating rules and the use of the information gathered (Article 1) and on officials’ liability (Articles 2 and 3).

On 28 November 2002, the Council adopted a Protocol10 amending the Europol Convention in order to enable Europol officials to take part in joint investigation teams.

In order to facilitate the setting up of joint teams and bearing in mind that it should be comprehensive but also flexible, on 8 May 2003 the Council adopted a Recommendation on a

10 Council Act of 28 November 2002 drawing up a Protocol amending the Convention on the

establishment of a European Police Office (Europol Convention) and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, OJ C 321/1 of 16.12.2002

EN 6 EN

Model Agreement for setting up a joint investigation team11 which deals with the parties of the agreement, the purpose of the team, the period covered by the agreement, Member States in which the team will operate, the leader, the members of the team, the participation of officials from Europol/Eurojust/the Commission (OLAF), the general conditions of the agreement, as well as specific arrangements and organisational arrangements.

1.4. General purpose of the report

This report is intended to enable the Council to assess the extent to which the Member States have taken the necessary measures to comply with the Framework Decision.

2. ANALYSIS OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION

The Commission reminded Member States of their obligation by means of a letter sent on 5 February 2003. At that point in time only one Member State (United Kingdom) had already forwarded information on implementation. By 31 December 2003, nine Member States (Germany, Spain, Italy, Luxembourg, Austria, Portugal, Finland, Sweden and United Kingdom) had provided the Commission with information on the implementation. In April 2004, one Member State (France) forwarded information on implementation and one Member State (Austria) informed the Commission that new legislation concerning joint investigation teams was due to enter into force. In May 2004 the Commission again contacted the Member States which had not provided any information (Belgium, Denmark, Greece, Ireland and the Netherlands) and obtained answers from three of them (Belgium, Greece and the Netherlands).

In the light of enlargement, on 13 April 2004 the Commission contacted the acceding Member States, asking for information on the implementation of the Framework Decision. Six of them have answered (Cyprus, Hungary, Latvia, Lithuania, Malta and Slovakia).

Although the deadline for submitting the report to the Council was 1 July 2004, in order to assess the implementation in as many Member States as possible, further information provided by 15 August 2004 has been taken into account.

Only three Member States (Denmark, Latvia and Finland) had adopted the transposing legislation by the deadline set in Article 4 of the Framework Decision and only one (United Kingdom) -which also adopted part of the transposing measures before the deadline- forwarded the relevant information to the Commission on time.

In total, 14 Member States forwarded the relevant legislation to the Commission (Denmark, Germany, Spain, France, Latvia, Lithuania, Hungary, Malta, the Netherlands, Austria, Portugal, Finland, Sweden and United Kingdom). No information was received from five Member States (Estonia, Ireland, Poland, Czech Republic, Slovenia), while four Member States forwarded the text of a bill (Belgium, Italy, Cyprus and Slovakia) and two Member States informed the Commission that a draft was in preparation (Greece and Luxembourg).

11 Council Recommendation of 8 May 2003 on a model agreement for setting up a joint investigation team

(JIT), OJ C 121/1 of 23.5.2003

EN 7 EN

The quality of the national information received by the Commission inevitably influences the value and the punctuality of this report. The Commission has encountered many difficulties in gathering the relevant information. Furthermore, the domestic legislation was partial and made reference to other provisions not supplied to the Commission. The evaluation of the information received highlighted the fact that, even where legislation was not indispensable, it might nevertheless be useful to put in place guidelines or circulars clarifying certain essential issues.

The report will first assess the legislation already in place and later on will take into consideration bills.

2.1. National measures

2.1.1. Denmark

The Framework Decision in so far as it required amendments to Danish legislation, has been implemented by means of the Act No 258 of 8 May 2002.

Article 1

No specific provision has been forwarded.

Article 2

Section 3 (1) of the above mentioned law provides that “the provisions of Chapter 14 of the Criminal Code concerning offences against the public authorities etc; and of Chapter 16 concerning offences in public service or activities, etc. shall also apply if the act has been committed by or against officials of another State in the course of their duties in Denmark under Articles 12 and 13 of the Convention of 29 May 2000 on Mutual assistance in criminal matters or other EU legislation”. The text of Chapters 14 and 16 of the Criminal Code has not been annexed.

Article 3

Section 3 (2) of the same law states that whenever an official of a Member State in course of his duties in Denmark under Articles 12 and 13 of the 2000 Convention or other corresponding provisions of other EU legislation, performs acts that give rise to liability to damages, damages shall be payable by the Minister of Justice.

Assessment: the provisions received from Denmark do not deal with Article 1 of the Framework Decision. It may be argued that because of the ratification of the 2000 Convention, provisions in it contained, automatically have become part of the Danish legal system but no guideline or circular indicating this has been forwarded to the Commission. On this basis the assessment of the implementation is not easily feasible. Even if information on the transposing of Article 2 is not complete, Section 3 (1) seems to be in line with the Framework Decision. On the other hand Section 3 (2) is not fully compliant with Article 3 because some provisions (Article 3 (2),(3) and (4) of the Framework Decision) are missing.

EN 8 EN

2.1.2. Germany

Article 1

Germany communicated to the Commission that no implementing law was needed regarding Article 1 of the Framework Decision because, “Article 1(5) imposes only a right for foreign investigation officials to be present when investigations are conducted”. Section 138(1) of the Richtlinien für den Verkehr mit dem Ausland in Strafrechtlichen Angelegenheit (RIVAST) (Directive on relations with foreign countries in criminal law matters) states that a foreign judge or civil servant may take part in official acts in Germany, only with the previous consent of the competent authorities or where the approval has been given in general terms for specific States. Section 138(2) provides that a German judge or civil servant shall conduct the investigation and shall ensure that the foreign judge or civil servant participates actively in the investigation only to the extent required by the circumstances of the case and that such conditions, as are imposed by the relevant authority, are complied with. No information has been given on the implementation of the other provisions of the Framework Decision except concerning Article 1 (6) and Article 1 (12). With regard to these provisions Germany reported that it intended to implement them when transposing the 2000 Convention on Mutual Assistance in Criminal Matters so that for the moment no individual power of action has been conferred on foreign national.

Article 2

As occurred with regard to Article 1, Germany communicated to the Commission that there is no need to transpose Article 2 because according to the legislation transposing the Protocol of 27 September 1996 to the Convention for the Protection of the Financial Interests of the European Communities, foreign officials are already treated in the same way as German officials.

Article 3

Concerning Article 3 Germany says that as “long as the powers of action of foreign officials are confined to the right of presence provided for in mandatory form by the Framework Decision, there is no need for provisions governing their civil liability”.

Assessment: legislation in place is not compliant with the requirements of the Framework Decision. With regard to Article 1, it deals only with the possibility for foreign officials, judges and prosecutors, to participate in German investigations. Nothing is said about the setting up of the team, its purposes, the leadership, the applicable law and the organizational arrangements, investigative measures to be taken and assistance to be required, the use of information gathered and the participation in the team of people other than representatives of Member States. Regarding Article 2 it has to be stressed that Section 1 of the Act to give effect to the Protocol of 27 September 1996 to the Convention for the protection of the Financial Interests of the European Communities concerns only certain types of crime (dealing with active and passive corruption) so that it is partial. In fact the letter received by the Commission explains that assimilation will be necessary only when the option of transposing further provisions conferring powers of action of foreign nationals under the 2000 Convention is exercised. Article 3 has no corresponding provision.

EN 9 EN

2.1.3. Spain

Spain implemented the Framework Decision by means of the Organic Law 11/2003 on Joint investigation teams within the European Union and the supplementary Organic Law 3/2003 establishing the rules concerning seconded members’ criminal liability. Both legal instruments entered into force on 23 May 2003.

Article 1

Article 1 of the Organic Law 11/2001 sets out the purposes of the law (governing the establishment of joint investigation teams).

According to Article 2 a joint investigation team is the team established by agreement of the competent authorities of two or more Member States, for specific purpose and limited period, to investigate cases where coordinated action is needed. Seconded Members are members from a State other than the one where the investigation is carried on. Article 2(b) provides that when members are officials as defined in their national law, they shall be known as ”seconded officials”. Investigative measures are defined as “any type of operation carried out as part of the investigation provided in the agreement”.

The competent authority to set up a joint investigation team is specified by Article 3: “Audiencia National” when investigation concerns offences attributed to this Court and judges and prosecutor take part in the team; the Ministry of Justice when investigation deals with other offences and judges and procurators participate in the team; the Ministry of the Interior, represented by the Secretary of State for Security, where no judges or prosecutors take part in the team.

Section II deals with the establishment of a joint investigation team to operate in Spain. According to Article 4 the agreement setting up the team has to be adopted by the competent authority as identified by Article 3. Investigations related to terrorist offences have the priority. Article 5 lists the minimum content of the agreement: the explicit will to set up the team expressed by the involved Member States, the sufficient justification of the necessity of the team and period of activity, purpose and aim of the investigations, proposal for the composition of the team (taking into account that the leader will be appointed by the Spanish competent authority), explicit reference to the legislation governing the operations, the stipulation of an agreement concerning the organisational measures (where appropriate), the powers of the team leader, rules on the use of information obtained because of the membership.

Article 6 states that the Spanish competent authority shall appoint the leader of the team, when it operates in Spain. The duty to adopt every organisational arrangement to enable the team to operate in Spain is up to the Spanish competent authority. Powers of seconded members are provided by Article 7, dealing with “Investigative measures”. It states that the team leader may entrust seconded members with the task of participating in or taking certain investigative measures for themselves. The following paragraph implements Article 1(7) of the Framework Decision stating that whenever it is necessary to take an investigative measure in the territory of one of the Member States involved, the seconded member may ask the competent authority to adopt such measures on the same conditions as if they have been requested as part of a national investigation. When the investigative measure to be taken relates to a third State, the Spanish competent authority shall assume the task of drawing up the request.

EN 10 EN

Article 8, dealing with the purposes of the information obtained while participating in a joint investigation team, has the same content of Article 1(10) of the Framework Decision. There is just a difference concerning the lack of the reference to the possibility to deny the consent to use information obtained in cases where Member States could refuse mutual assistance. The consequence is that the Spanish law provides for less ground for refusal than the Framework Decision.

According to Article 9, in the event of a change of the circumstances that gave rise to the setting up of the team, investigations may be extended to include acts directly connected to the purpose or the period initially agreed may be extended with the consent of each participating Member State and without a further agreement. When one of the involved Member States notifies the new circumstances, Spain may advise them of the need to adopt a new agreement.

Article 1(12) of the Framework Decision has been implemented by Article 10 and the Second additional measure (Participation of European Union specialist Unit), dealing with the possibility to let persons not representing a Member State (in particular officials of bodies established under the Treaty on European Union) participate in the team. These persons may not be entrusted with the rights conferred to the Members or Seconded Members of the team if not otherwise provided in the agreement setting up the team (Article 5, i)).

Section III deals with the establishment of a joint investigation team to operate outside Spain. The Spanish competent authority is responsible for requesting the setting up or deciding on the Spanish participation in a team set up abroad. When a team is established at the request of the Spanish competent authority, the request must contain the elements listed in Article 5, as well as those requested by the law of the other Member States involved.

Article 2

Article 2 of the Framework Decision has been implemented by Organic Law 3/2003 dealing only with criminal liability relating to officials taking part in joint investigation teams in Spain. The law states that official are subject to the same rules provided for Spanish officials with respect to offences committed against them or by them.

Article 3

Article 3 has been implemented by means of Article 11 of the Organic Law 11/2003. It establishes that when acting within a joint investigation team, seconded members will be subject to the same rules on civil liability as Spanish officials. Spanish competent authority shall indemnify individuals for any damage against their property of rights as a consequence of the operation or activities of the team except in the case of force majeure. Whenever the damage is attributable to a seconded member Spanish competent authority may claim compensation from the Member State represented by that member.

Assessment: Article 1 is very well implemented and each provision has been transposed in the Spanish law. Only Article 1(9) has not been expressly transposed but since there are provisions concerning the use of information gathered while part of a joint investigation team, it may be concluded that members and seconded members may provide the team with information. Article 2 of the Framework Decision fully corresponds to the transposing provision. Article 3 has been more or less implemented. The reference to the force majeure

EN 11 EN

corresponds to general principles and does not seem to be contrary to a correct implementation.

2.1.4. France

In France the Framework Decision has been implemented by means of Article 17 of Law 9/3/2004 adding two new Articles to the Criminal Procedure Code.

Article 1

Article 695-2 of the French Criminal Procedural Code states that with the previous consent of the French Minister of Justice and the other involved Member State(s), the competent judicial authority may set up a joint investigation team where, with regard to French proceedings, it is necessary to lead complex investigations requiring substantial means and concerning other Member States or where investigations require co-ordination between several involved Member States. No mention is given to the composition of the team. Foreign officials detached to a joint investigation team, within the limits of the competences defined by their national status conferred by the seconding Member State, and under the supervision of the competent local judicial authority, may operate, where necessary, over the whole French territory under the direction of the competent judicial authority and in particular may note down offences and make written reports on them, receive declarations made during the whole proceedings from people able to give information on the offences and where needed, with the formalities required by the seconding Member State, assist French police officials while operating, act in surveillance and covert investigation without the formalities usually required in these cases. They may act only in the investigation for which they have been seconded and may not be entrusted with the specific police powers conferred upon the French judicial police official in charge of supervising the team. The transcripts concerning the operation have to be written or translated into French and the original copy has to be annexed to the French investigation dossier. Article 695-3 provides that French police officials (not judges and prosecutors) seconded to a joint investigation team may act within joint investigation teams over the whole territory of the Member State where they operate under the direction of the team leader, within the limits of the powers conferred upon them by the French Criminal Procedure Code. Their tasks are defined by the guest competent authority. With the consent of the Member State where the team is acting they may receive declarations and note down offences with the formalities required by the French Code.

Article 2

No provision deals with Article 2.

Article 3

No provision deals with Article 3.

Assessment: legislation in place is not fully compliant with the Framework Decision and its scope is limited to the cases provided in Article 1(1)(a) and (b). The need for the consent of the Minister of Justice could make the process slower and more difficult because every time the judicial authority wants to set up a team, it has to wait for such consent. No mention to the composition of the team. With regard to Article 1(3) of the Framework Decision it is not clearly said that the leader is the member of the State where the team acts and that the applicable law is the one of the place where the team is placed but the existing provisions

EN 12 EN

suggest these rules. No mention is made of the organizational arrangements. Nothing is said on Article 1(5) of the Framework Decision but it may be argued that seconded members may be present when investigative measures are taken only in the cases listed in Article 695-2. With regard to Article 1(6)of the Framework Decision, Article 695-2 of the French Criminal Procedure Code lists the operations that may be carried out by seconded members under the direction of the French competent authorities. The consent of the seconding Member State is always required. No provision deals with Article 1 (2), (3)(c) (7), (8), (9), (10), (11) and (12). Articles 2 and 3 have not been implemented.

2.1.5. Latvia

Provisions on joint investigation teams have been introduced in the Latvian Criminal Procedure Code by amendments adopted on the 20 June 2000 and entered into force on the 1 November 2002.

Article 1

According to Article 614 of the Criminal Procedure Code “The joint investigation team consists in the activity of officials from Latvia and the other involved countries authorised to perform pre-trial proceedings within the framework of criminal proceedings taking place in one country”. The joint team shall be formed in order to prevent unjustified delays in proceedings involving several countries (not only Member States) and in particular when they carry on investigations on the same cases or when a part of the investigations needs to be carried out abroad. The involved States have to find an agreement on the composition of the team, its leader and the tasks of the team. The agreement has to be signed by the Latvian Prosecutor General (Article 615) or by somebody else on his/her behalf.

Article 616 provides that the legal bases for the activities carried out by the team when it operates in Latvia are to be found in the agreement signed by the Prosecutor General. Article 617 deals with the leadership of the team. The leader shall be the representative of the country where the “criminal proceedings” take place. The appointment of the leader shall be a part of the agreement and he/she may be replaced only with the consent of all the States involved. Whenever the leader is Latvian he/she shall exercise the powers accorded by the Latvian law for domestic proceedings, entrust another member of the team to “independently perform procedural activities” in Latvia or to carry on investigation in his/her country and decide to what extent information gathered may be available to members of the team.

Article 618, dealing with “Member of the team designated by the foreign country” provides that members of the team are representatives of the countries involved but they may be also “staff members of an international organisation if he/she has that right in one of the member countries”. Seconded members may be entrusted by the leader with investigative measures to be executed in Latvia or in the country where the seconded member comes from. Whenever assistance is needed from a third country, the seconded member charged with the operation by the leader shall submit requests for mutual assistance according to its domestic legislation.

Concerning the powers of the Latvian participant in a joint team, Article 619 states that the Latvian representatives in a team operating in Latvia may be more than one and their authority and relationship with the leader will be the same as if the team were set up to investigate in internal cases. The Latvian members shall have the right to independently carry on investigations in Latvia “to the extent determined by the team leader”.

EN 13 EN

According to Article 620 if the team leader is Latvian, “criminal proceedings” shall take place according to the Latvian law. Seconded members shall apply their domestic law to investigative measures taken in their countries unless the leader asks to apply the Latvian law and it is permitted by their domestic law. Each investigative measure adopted in Latvia may be subject to review according to Latvian legislation. Unless otherwise provided in the agreement, the team leader and the prosecutor shall control the activities of the team.

Article 2

No provision deals with Articles 2.

Article 3

No provision deals with Article 3.

Assessment: Latvia communicated the text of the provisions in its English translation and the assessment of the implementation is on the basis of that translation. According to the text it is possible to set up joint investigation teams although, with reference to Article 1(1), no mention is done to the “specific purpose” and the “limited period”. Nevertheless the competent authority to sign the agreement is well indicated and the content of the agreement involves the most important aspects: leader, composition and activities. No provision deals with the organisational arrangements. As the implementing legislation refers to “procedural activities”, it is not clear what the powers of seconded members are. Article 618 mixes up Article 1(3), (6), (8) and (12) in an unclear way. No mention is made of the use of information gathered except for the power of the leader to deny access to information to other members of the team. Such a power seems contrary to the spirit of the Framework Decision. Articles 2 and 3 have not been implemented.

2.1.6. Lithuania

According to the communication received by the Commission, legislation in place already enables Lithuania to comply with the provisions of the Framework Decision. In particular 5 articles of the Criminal Procedural Code, Criminal Code and Civil Code provide for the legal basis to the set up joint investigation teams.

Article 1

Concerning Article 1 of the Framework Decision, the involved provisions are the ones inserted in the Criminal Procedure Code: Article 171 states that Prosecutors may create an investigative team composed by officials belonging to one or several pre-trial investigative institutions. According to Article 67 the acts of the officials of foreign state courts, prosecutor offices and pre-trial institutions or international Criminal Court or other international organisations in the territory are allowed on the Lithuanian territory only where provided for in Lithuanian International Treaty and with the participation of Lithuanian officials. Article 4 explains that if the International treaty of the Republic of Lithuania provides different rules than this Code, international rules shall be applied.

Article 2

Article 230 of the Criminal Code provides that “for the purpose of this chapter” (which is unknown because the Commission received only Article 230) a person having appropriate powers and duties at an institution of another state, an international organisation or at

EN 14 EN

international judicial institutions shall be held to have the status equivalent to that of a “public servant”.

Article 3

Article 6.272 deals with the responsibility for damage originating from unlawful acts of the pre-trial investigation officers, prosecutors, judge or court and provides that despite the guilt of the officials involved, the State has to fully reimburse damage originating from unlawful conviction, unlawful application of the custody measures, unlawful detention, unlawful application of the procedural constraint measures, unlawful imposition of arrest as administrative punishment. The State has also to reimburse the damage originating from the unlawful acts of the judge or court committed during civil proceedings if it occurred as a result of the guilty acts of the judge or other officer in the court. Damage may be both material and moral and whenever the damage results from the intentional acts of the pre-trial investigation officers, officers of the prosecutor’s office or officers of the court, the state has the right of recourse to appropriate officers.

Assessment: Lithuanian legislation provides for a very general legal basis for the setting up of joint investigation teams which does not deal with most of the provisions provided by the Framework Decision and therefore is not compliant with the Framework Decision. Concerning Articles 2 and 3, implementation is partial and do not cover all the cases provided by the Framework Decision. The Commission has been informed that, in order to transpose more detailed regulations of the Framework Decision, Lithuania is preparing a draft implementing resolution which will embody specific provisions and the Model Agreement concerning creation, status and activities of the joint investigation teams.Despite the ratification of the 2000 Convention on Mutual Assistance in Criminal Matters, which should deal also with joint investigation teams, by 15 August 2004 nothing has been forwarded to the Commission.

2.1.7 Hungary

Hungary informed the Commission that according to Articles 20-23 of the 2002 Act on International co-operation of law enforcement agencies (entered into force on 1st April 2003), law enforcement agencies may take part in joint teams “before official criminal investigation has been launched”. If an official criminal investigation has already been launched, the international co-operation falls under the competence of the “judicial-co-operation” and this case is regulated by Articles 55-59 of the Act CXXX of 2003. While the 2002 Act has entered into force on 1 April 2003, the corresponding provisions of the 2003 Act have not yet done so, so that, for the moment, in Hungary it is possible to set up joint investigation teams only in a “pre-investigative phase”.

Article 1

According to the 2002 Act in Hungary only “joint crime detection teams” may be set up. “Crime detection” activity is the activity of the law enforcement agencies carried out in order to prevent and detect criminal offences and, for the purpose of this Act, falling out of the scope of judicial legal assistance (Article 2 of 2002 Act). They are set up by means of an agreement between the competent law enforcement authorities involved. The team may be set up when more than one State leads investigations on the same case and co-ordinated or concerted action is required or when the investigation has links with more than one State and needs difficult operations. The offence has cross-border links when it is committed or planned

EN 15 EN

to be committed in more than one State, the preparation, direction, or control takes place in a State which is not the one where the action develops, it involves a criminal organisation operating also in other States or the effects of the offence fall on the society or the economy of another State.

Articles 21 concerns the content of the agreement for the setting up and more or less it reflects the provisions of the Framework Decision and the content of the Model Agreement for setting up a joint investigation team.

Article 22 states that the joint crime detection team operating in Hungary shall be led by the Hungarian member. Whenever the team conducts “criminal intelligence gathering” requiring Prosecutor authorisation, the involvement of seconded members has to be authorised by the Prosecutor. Seconded members may have access to classified information on State and Secret Service (this provision refers to Act LXV of 1995 which has not been annexed).

Article 23 deals with agreements with Europol. In this case all data gathered while operating in the joint detection team has to be forwarded to Europol.

Article 24 deals with “the involvement of persons co-operating with the law enforcement agency” and provides that seconded members operating in Hungary may involve persons co-operating with the foreign authority in Hungary as well. The meaning of this provision is not very clear. Seconded Hungarian members acting abroad may involve persons operating with the Hungarian law enforcement agency only if the foreign state provides the same protection for such persons or for the data provided by them as the Hungarian legislation does.

Article 2

No provision deals with Articles 2.

Article 3

No provision dealing with Article 3 has been forwarded to the Commission.

Assessment: many provisions of the Framework Decision have been implemented and the content of the agreement needed to set up the team should cover almost every aspect even if at the moment it is possible to set up joint detection teams only before an official investigation has been launched. Nevertheless no provision deals with Article 1 (5) and (6) (powers of seconded members), (7) (investigative measure to be taken in a State other than the one where the team operates), (8) (assistance needed from a State other than the one where the team has been set up or from a third State). Concerning Article 1 (9) and (10) (providing and use of information) of the Framework Decision, it has to be said that Articles 22 and 24 of the 2002 Act refer to “gathering of information” and to “data provided” by Hungary but they don’t provide for the same rules contained in the Framework Decision. With regard to Article 1 (12) of the Framework Decision it has to be pointed out that even if Article 23 deals with Europol, it seems not to comply with the Framework Decision. Articles 2 and 3 have not been implemented.

EN 16 EN

2.1.8 Malta

Malta informed that the possibility and the reality of joint investigation teams were operated in Malta also before 2002 without the need of specific legislation.

Article 1

According to the communication received from Malta there was no need to legislate to implement the Framework Decision, nevertheless certain specific aspects have been regulated by inserting in the Criminal Code Article 435E Paragraphs 3 and 4. These provisions state that, “pursuant to any arrangement, including any treaty, convention, agreement or understanding to which Malta is a party or which is applicable to Malta, the Attorney General may authorise the competent authorities of another country, to conduct in Malta, jointly with or under the supervision or direction of the executive Police, investigations into criminal investigations by officers acting under covert or false identity, provided that the Attorney General is satisfied of the true identity and official capacity of the officers in question and is fully informed of the nature of any documents which purport to guarantee, certify or authenticate the false identity assumed by any such officers.

Article 2

Article 435E (4) of the Criminal Code provides that any official from another country taking part in any authorized criminal investigation shall, for the purpose of any criminal liability incurred under the Criminal Code or any other law by that official or by others for conduct against that official, be deemed to be a police officer.

Article 3

No provision deals with Article 3.

Assessment: although Malta assumed that existing legislation already enables the setting up of joint investigation teams, no guideline or circular has been annexed to the information provided to the Commission, thus the assessment has been made on the basis of the legislation received (Article 435E of the Criminal Code). Provisions contained in Article 435E (3) deal only with covert investigation which can be one of the tasks of a member of a joint investigation team but certainly does not cover the whole Article 1 of the Framework Decision. Article 2 seems to be implemented while no provision concerns Article 3. In conclusion, legislation in place does not appear to be compliant with the requirements of the Framework Decision.

2.1.7. Netherlands

In the Netherlands the Framework Decision has been implemented under the enacting legislation concerning the 2000 Convention on Mutual Assistance in Criminal Matters (Law of 26 April 2002 amending certain provisions of the Criminal Procedure Code and the Law on police registers and extending the Criminal Procedure Code with a view to implementing the MLA 2000 Convention). This legislation entered into force on 1 July 2004. The college of prosecutors-general has also issued implementing instructions. A form to be filled with the view to setting up the team is annexed to the documents provided to the Commission.

EN 17 EN

Article 1

Article 552qa section 1 of the Criminal Procedure Code provides that “Insofar as provided by treaty or convention, the public Prosecutor may set up a joint investigation team for a limited period to carry out joint criminal investigations together with the competent authorities of other countries”. The wording is more general than Article 1(1) of the Framework Decision and seems to allow the setting up of joint investigation team whenever the Public Prosecutor deems it appropriate but the scope is limited: “insofar as provided by treaty or convention”.

Article 552qa Sections 2 and 3 refer to the agreement. The public prosecutor will agree on the establishment of the team “in writing”. Concerning Section 2 the explanatory memorandum explains that a written agreement promotes transparency both internally (within the MS involved) and externally (“as the agreement is included in the criminal file and thus shows how the criminal investigations are conducted”) and that the agreement can refer to the criminal investigation phase but also to the prosecution phase. According to Section 3 the agreement shall include, as a minimum requirement, details of its purpose, the period it is supposed to operate, where it is to be based, who its members are, investigative powers of Dutch officers on foreign territory and vice versa. Dealing with this Section, the explanatory memorandum says that according to Article 152 of the Criminal Procedure Code (not forwarded to the Commission), seconded members of the investigation team should be obliged to appear in court hearings and therefore a duty to appear has been included both for the legal and court examination phases. Article 552qb deals with investigative powers. They shall be exercised on Dutch territory in accordance with the provisions of the Dutch Criminal Procedure Code and pursuant to it and the treaties between the countries involved in the joint investigation team. The explanatory memorandum explains that this covers investigations to be carried out by both Dutch and foreign officers and that “the government believes that the only investigative powers accruing to foreign officers are those in or under the criminal procedure code” i.e. when the team operates in the Netherlands both Dutch and foreign members of the team have the investigative powers accorded by the domestic Dutch legislation and whenever a seconded member according to his/her legislation has more powers, he/she, cannot exercise them. It is not clear whether the team leader may decide not to entitle seconded members to be present while investigative measures are taken. Article 552qc seems to state that documents provided by a foreign member of the team gathered during the team’s investigation abroad, in the Netherlands have the same evidential force they would have if they had been gathered in the Netherlands, if it does not exceed it. The explanation memorandum refers to other provisions which have not been annexed. Article 552qd Section 1 provides that evidence and data media containing information where seized in the Netherlands or obtained there for the purpose of a joint investigation team established outside the Netherlands “may be placed at the investigation team’s disposal immediately”. The explanatory memorandum points out that because of the fact that exercising investigative powers on behalf of a joint investigation team is no longer based on requests for legal assistance, evidence and data media containing information, must be immediately placed at the disposal of the team. Section 2 specifies that the public prosecutor involved in the joint investigation team will subject this “provisional disposition” to two conditions: that Dutch law shall remain in force in respect of documents and evidence and that

EN 18 EN

they cannot be used as evidence until they have definitively been made available. The explanatory memorandum explains that items and data media can be provided to a joint team based abroad immediately but only on a provisional basis because suspects or interested parties may appeal against those items being seized or used. Section 3 says that the Prosecutor may put this documents and evidence “definitively” at the disposal of the joint investigation team “insofar as the courts allow”, and then refers to a series of articles that are not provided. Article 552qe contains specific provisions on “tapping telecommunications” on behalf of a joint investigation team established abroad. Section 1 allows the public prosecutor involved in a joint investigation team established outside the Netherlands to give instructions “with a view to forwarding and to establishing telecommunications using technical facilities” by the team. Section 2 sets two conditions on the possibility of giving such instructions when the telecommunications concern a telecommunication user on Dutch territory. In this case it is necessary that the information obtained by tapping this telecommunications: a) “insofar as it contains communications given by or to a person who could claim privilege under Art.218 if questioned as a witness as to the content of those messages” may not be used and must be destroyed; b) may only used for joint investigation team’s investigations. Prior consent is necessary before using them for any other purpose. The explanatory memorandum points out that the conditions mentioned in Section 2 apply only to telecommunications involving persons on Dutch territory.

Articles 2

No provision concerns Article 2.

Article 3

No provision is related to Article 3.

Assessment: It is not easy to understand what the provision contained in Article 552qa: “Insofar as provided by treaty or convention” means. The explanatory memorandum points out that a joint investigation team must be “treaty-based” because “there must already be an established legal framework between the countries involved laying down essential matters”. We might argue that “treaty-based” means within the framework of the UE Treaty (i.e. between EU Member States), nevertheless the instructions to the Public Prosecutor Office issued by the College van Procureurs-Generaal (annexed to the legislation forwarded to the Commission) explains that “Setting up a joint investigation team requires a treaty. Apart from the EU Convention on Mutual Assistance, treaties which currently make provisions for joint investigation teams are the Convention on Mutual Assistance and Cooperation between Customs Administrations signed on 18 December 1997 (Naples II), the UN Convention on transnational crime of 15 November 2000, and the Second Supplementary Protocol to the European Convention on Mutual Assistance”. This means that even if the Dutch legislation is already in force in the Netherlands, according to the interpretation given by the Public Prosecutor Office, it can be applied only in the case in which the other countries participating in the team ratified one of the mentioned treaties or conventions. The consequence is that, apart from the content of provisions on joint investigation teams, the scope of the Dutch legislation is too limited to be considered as compliant with the Framework Decision.

With regard to the content of the Framework Decision, almost every aspect has been

EN 19 EN

transposed, although Article 1 (3) has not been mentioned with reference to the organizational arrangements (the instructions to the Prosecutors deal with the item but they do not have a legislative binding power). Because of the lack of the text of the provisions to which the Criminal Procedure Code refers, assessing the implementation of Article 1 (5), (6) and (7) concerning the powers of seconded members and investigative measures to be taken in one of the States setting up the team, has not been possible. With regard to the providing and using of information to the team, provisions contained in Article 552qc and 552qd, dealing with documents, evidence and data media, do not fully cover Article 1 (9) and (10) of the Framework Decision. The Instructions to the Prosecutors explain that the “Ruling of Police Records” has been amended with a view to allowing the furnishing of information from police records to joint investigation team but the text of this “Ruling of Police records” has not been annexed. The Instructions also explain that, under Article 13 of the 2000 Convention on Mutual Assistance in Criminal matters, seconded members may be provided with information in the same way as Dutch police officers, and Dutch police participating to teams set up abroad may be provided with information for the purpose of information. Unfortunately the “Instructions” do not refer to any particular provision dealing with these issues, nor it has been annexed. The same happened with Article 1 (12): the Instructions seem to make reference to the existence of provisions dealing with the participation in the team of officials coming from OLAF, Europol and Eurojust but no provision is mentioned or annexed. Articles 2 and 3 have not been implemented.

2.1.8. Austria

Austria implemented the Framework Decision by means of §§ 60,61,62 and 76 of the law concerning extradition and mutual assistance between the Member States of the EU (Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den Mitgliedstaaten der Europäischen Union [EU-JZG] which entered into force on 1 of May 2004.

Article 1

§ 60 of the EU-JZG contains more or less the same wording as Article 1(1) of the Framework Decision. The only difference is that it states that “purpose, duration and composition” of the team may be changed by mutual consent of the involved Member States. The form for the request to set up a joint investigation team is provided by Annex IV to the EU-JZG which has the same content of the form contained in the Council recommendation of 8 May 2003. Concerning the setting up of the team in Austria § 61 provides that the competent judicial authority, asked by the public prosecutor, has to suggest to foreign competent judicial authority to set up a joint investigation team. The request has to be forwarded to the national member of Eurojust, to the President of the Court of First Instance, to the Head of the Prosecutor’s Office and to the competent police authority. Police authority may indicate further participants. The competent Austrian judge shall, upon the request by the public prosecutor, lead and organisationally support the team set up to act in Austria. Powers of seconded members are determined according to Austrian Criminal Procedure Law. Where the presence of foreign officials may endanger investigations, the team leader may decide to operate without them. According to § 58 agencies of other member States may not carry out investigations in Austria without a multilateral agreement. The operation shall be carried on under the leadership of the Austrian authorities. Following the request of another Member State, judges, prosecutors and officials, as well as lawyers, may be allowed to take part in mutual assistance proceedings. § 76 deals with the setting up of the team abroad and the possibility for Austrian judicial authorities to participate in teams set up in another Member State if the offence is punishable according to the Austrian law and it falls under the Austrian

EN 20 EN

jurisdiction. Information obtained during the operations carried out in Austria may be used by the other participants of the team within the limits provided by mutual legal assistance. If not otherwise provided by the law of the Member States where the team operates, gathered information not available in Austria may be used only for the purposes for which the team has been set up as well as to prevent an immediate and serious threat to public security. However the involved Member States may otherwise agree. People other than representatives of the competent authorities may take part in the team operating in Austria with the consent of every team member, according to the other conditions required by mutual legal assistance (§61).

Article 2

§ 59 of the EU-JZG provides that officials of other Member States are assimilated to Austrian officials in respect to offences committed against them or by them.

Article 3

§ 59 (2)-(5) has the same content as Article 3 of the Framework Decision.

Assessment: the assessment of the implementation of Article 1 (5) and (6) has not been possible because §61, dealing with powers of seconded members, makes reference to the Austrian domestic legislation, which has not been forwarded to the Commission. With regard to the other aspects, the Framework Decision seems to be quite well implemented even if there is no provision concerning Article 1 (7) and (8) and provisions on the use of information are not really complying with Article 1 (9) and (10) of the Framework Decision. The possibility to participate in a team accorded to Austrian judicial authorities is restricted: the offence has to be deemed as an offence according to Austrian law and it has to fall under the Austrian jurisdiction. Concerning the participation in the team of persons other than representatives of the involved Member States, §61 is not really compliant with Article 1(12) because it requires the consent of every team member instead of the consent of involved Member States. The reference to the form (Annex IV which has the same content required by the Council Recommandation and deals also with Article 1 (7), (8) and (9)) contained in §60 will probably assure a good implementation. Articles 2 and 3 have been fully transposed.

2.1.9. Portugal

Portugal implemented the Framework Decision by means of law n.48/2003 which added to law n.144/1999 Articles 145-A and 145-B.

Article 1

Paragraph 1 of Article 145-A allows joint investigation team to be set up by mutual agreement between Portugal and a “foreign country” where a Member State’s investigations into criminal offences require complex investigations having links with other States or a number of States are conducting investigations into criminal offences in which the circumstances of the cases necessitate coordinated and concerted action in the States involved. No mention to the fact that the joint investigation team has to be set up for a limited period. According to the Portuguese law joint investigation teams may be set up also with non Member States. Paragraph 2 is identical to Article 1 (2) of the Framework Decision. According to Paragraph 3 seconded members may be present while investigative measures are taken in Portugal, unless the leader, according with national law, decides otherwise. Seconded members are allowed to take investigative measure to be practiced in Portugal whenever the leader so decides and

EN 21 EN

with approval of the Portuguese Ministry of Justice and the competent authority of the other involved States (Paragraph 4). If the joint team needs assistance from a Member State not participating in the team, the Portuguese Ministry of Justice can make the relevant request to the competent authorities of the other State (Paragraph 5). Paragraph 6 allows Portuguese members to transmit information available in Portugal for the purpose of the investigations conducted by the team. According to Paragraph 7, information lawfully obtained may be used for the same purposes listed in Article 1 (10) of the Framework Decision. According to Paragraph 8 it may be agreed that persons others than representatives of the Member States setting up the team, may take part in the activities of the team but, unless otherwise decided, they have not the rights conferred to members and seconded members.

Article 2

No provision deals with Article 2.

Article 3:

Article 145-B has more or less the same wording of Article 3 of the Framework Decision.

Assessment: on the whole the Framework Decision has been very well implemented and the transposing law uses the same wording of the Framework Decision. Nevertheless no mention is done to the provisions of Article 1 (3) on the leadership of the team and the applicable law as well as to Article 1 (7) concerning investigative measures to be taken in one of the State participating in the team. Article 3 has been transposed while Article 2 has not.

2.1.10. Finland

The Finnish Law n.1313/2002 on joint investigation teams came into force on the first of January 2004.

Article 1

Section 1, dealing with the establishment of joint investigation teams, states that the Finnish competent investigatory authority may conclude an agreement with the competent authority of a foreign State to establish a joint investigation team to investigate offences. The request has to be treated as a request of mutual assistance. According to this provision Finland may set up joint investigation teams with every foreign state, not only EU Member States, and the task is very general: to investigate offences. No mention to specific purposes or limited periods, as well as to subparagraphs a) and b) of Article 1 Paragraph 1. According to Section 2 the team shall consist of competent authorities from the States setting up the team. Other persons may take part in the team in accordance with specific terms of the agreement. It is not clarified who these “other persons” may be but it seems that the provision refers to Article 1 (12) of the Framework Decision. The membership of the team shall be specified in the agreement. Section 3 states that in Finland the team shall operate under the direction and supervision of the Finnish authorities and in accordance with the Finnish law. The powers of team members operating in Finland are specified by Section 4: members (they are not called “seconded members” but the provision surely refers to them) shall be entitled, under the Finnish law, to be present at procedures relating to the investigations. With the consent of the investigating authority they shall participate in all procedures of the case and examine persons who are being questioned. When the law of the State where they come from so permits, “officials of a foreign State”, in accordance with the team leader instructions, under his direction and

EN 22 EN

supervision, may carry out examinations. Whenever a team operates in a State other than Finland and it is necessary to carry on investigations in Finland, on the request of the Finnish member, investigation shall be considered as if the offence was committed in Finland (Section 5). With regard to the use of information gathered while operating in the team and not otherwise available, Section 6 states that the Finnish authorities may use information obtained in accordance with the purposes for which the team was established. With the consent of the State where information have been obtained or of the State which provided the information, it may be used also for investigations concerning offences others than those for which the team has been set up. Information may be used to prevent an imminent and serious threat to life or health. With the consent of the States setting up the team it may be used also for other purposes. Restrictions on the use of the information may be agreed.

Article 2

No provision deals with criminal liability.

Article 3

Section 7 of Law No 1313/2002 provides that a foreign official who is a member of a team and causes damage in the course of his duties on Finnish territory shall be treated as a Finnish official for the purpose of determining liability for compensation. This provision is very general and does not cover the whole Article 3 of the Framework Decision.

Assessment: the transposing provisions have not been fully assessed because of the fact that the Finnish law (Sections 4 and 8) refers to other laws which have not been annexed. Section 1 provides about the possibility, for the Finnish investigatory authority, to conclude an agreement with “a” competent authority in a foreign State. Although the reference to “a” competent foreign authority, it may be concluded that it is possible to set up joint teams also with more than one foreign country. Nothing is said about “specific purpose” and “a limited period”.Article 1 (8) and(9) has not been implemented and Article 1 (10)-(11) has been partially implemented. The Finnish law does not provide for rules on organizational arrangements. Article 2 has not been implemented and Article 3 has been partially transposed.

However the Framework Decision seems to be well implemented and the reference to the agreement will assure a good practical operation.

2.1.11. Sweden

Sweden implemented the Framework Decision with the Act on joint investigation teams for criminal investigations and the ordinance on joint investigation teams for criminal investigation promulgated on 18 December 2003 which entered into force on 1 January 2004. Both are legally binding.

Article 1

According to Section 2 of the Act, joint investigation teams shall be set up for specific purposes and for limited period of time. It does not expressly say that this might be extended.

Section 3 identifies the competent authority to conclude the agreement to set up a joint investigation team: if a criminal investigation is in progress in Sweden, it is the prosecutor or the authority leading the preliminary investigations, otherwise the agreement may be concluded by different authorities listed in this section such as the Office of the Prosecutor

EN 23 EN

General or Regional Public Prosecution Office, the National Police Board or other authority designated by it, the Swedish Customs Service and the Swedish Coast Guard. It is also mentioned that the agreement shall make clear which officials are members of the joint investigation team and the period of time during which it shall operate. Moreover Sections 2 and 3 of the Ordinance contain further detail on the content of the request (the Prosecutor or authority handling the matter or contact person; addresses, fax and telephone numbers; the purpose of the team and the period of time it is supposed to operate; a proposal concerning the composition of the team) and the procedure when a request to set up a joint investigation team is received from a foreign authority (when an investigation is already in progress it shall be delivered to the Prosecutor in charge of it, otherwise it shall be delivered to the Office of the Prosecutor General, the National Police Board, the Swedish Customs Office or the Swedish Coast Guards) or when a Swedish authority intends to conclude an agreement. In the latter case the authority that intends to set up a joint investigation team must consult with the other Swedish authorities affected and notify a prosecutor, before the agreement is concluded, and after it has been concluded, notify the National Police Board. Section 5 of the Ordinance provides that the agreement to set up a joint investigation team and changes to such an agreement shall be made in writing and Section 6 says that the Council Recommendation “contains a model agreement for the setting up of joint investigation teams” but it does not provide that the Model shall be used. Section 4 (Investigative measures in Sweden) seems to correspond to Article1 (7) of the Framework Decision: “If a measure has to be taken in Sweden for the work of a joint investigative team and if the measure cannot be taken within the framework of an ongoing Swedish preliminary investigation, a Swedish official who is a member of the team may apply for the measure to be taken”. The application shall be made directly to a prosecutor or court that is competent to deal with the matter under “the Assistance in Criminal Matters Act”. The reference to the Assistance in Criminal Matters Act is not very clear. Sections 5 to 7 deal with the use of information. The first one provides that Swedish authorities gathering information through a joint investigation team shall comply with conditions set by the Framework Decision on the use of the information “irrespective of the provisions of any Act or other Statute”. Section 6 deals with the opposite case: conditions may be attached to the transfer of information or evidence from a Swedish authority to a joint investigation team in individual cases if they are necessary in the public interest. Anyway no condition may be attached if it is in conflict with the Framework Decision. Section 7 says that the Swedish authority that has transferred information or evidence and has imposed conditions may grant exemptions from the conditions at the request of the authority of the other State. It specifies that “This also applies to conditions that follow directly from the Framework Decision”.

Article 2

No provision deals with it.

EN 24 EN

Article 3

Section 8 implements the general rule contained in Article 3 (2): the State where the team operates has to reimburse damage caused during the operations. It adds expressly that Sweden shall not reimburse damage sustained by the foreign authority or official. Section 9 provides that whenever Swedish officials cause damages while acting abroad in a joint investigation team; it is up to the guest State to pay. Nothing is said on the duty provided by Article 3 (3).

Assessment: Some provisions of the Framework Decision are missing and the lacking ones are quite important: Article 1 (3) on the operating rules, Article 1 (4)-(6) on powers of seconded members, Article 1 (8) on the assistance from other States, Article 1 (12) on the possibility to let persons other than the competent authorities of the member States to take part in the team. Article 2 has not been implemented and Article 3 has been partially transposed. The lack may be overcome through Section 3 of the Act and Sections 5 and 6 of the Ordinance providing for an agreement to set up the joint investigation team and making reference to the Model Agreement issued by the Council Recommendation of 8 May 2003. In this contest the involved Member States may agree also the issues which have not been directly transposed by the Swedish legislation.

2.1.12. United Kingdom

With letter 1 October 2002 United Kingdom provided the Commission with the text of Sections 103 and 104 of the Police Reform Act 2002, which relate to obligations in Articles 2 and 3 of the Framework Decision, on criminal and civil liability regarding officials. A copy of the Home Office Circular 53/2002 was also enclosed. The Home Office pointed out that the mentioned Circular gives guidance to law enforcement agencies and prosecuting authorities in the United Kingdom on establishing joint investigation teams under the Framework Decision. With a following communication on 26 April 2004 the Home Office informed that further legislation (Crime (International Co-operation) Act 2003), coming into force on 26 April 2004, implemented Article 1 (7) of the Framework Decision.

Article 1

The relevant provision of section 16 of the 2003 Act provide that where a constable is a member of a joint investigation team established under the Framework Decision on joint investigation teams, he may (other than in Scotland) make an application for the purposes of the team’s investigations for a search warrant or a production order in relation to criminal conduct abroad which would, if it occurred in England and Wales and Northern Ireland, constitute a serious offence. Customs officers in England, Wales and Northern Ireland will be able to exercise the same powers as constables in relation to joint investigation teams by virtue of section 27 of the 2003 Act. Section 18 of the 2003 Act makes similar provisions for the procurator fiscal for warrants in Scotland on behalf of joint investigation teams established under the Framework Decision. Home Office Circular of 1 October 2002 describes the provisions of the Framework Decision and associated provisions on liabilities of foreign officers with a view to the Explanatory Memorandum of the 2000 Convention on Mutual Assistance in Criminal Matters. The Circular explains that with the coming into effect of the relevant provisions of the Police Reform Act, competent authorities in the UK are able to establish joint investigation teams under the Framework Decision with competent authorities of any of the other Member States.

EN 25 EN

It contains guidelines on people who can participate in a joint investigation team, the benefit of the establishment of joint investigation team, offences which may be investigated, how to initiate a joint team, the content of the Framework Decision and matters for inclusion in the agreement. It deals with criminal and civil liabilities of officials, with Europol officers, Eurojust. The Circular also points out that in the United Kingdom joint investigation teams will almost always be led by law enforcement officers and the amendments in Section 103 and 104 of the Police Reform Act relate to teams which would be led by Police officers. But some joint investigation team are led by Customs officers and some by Serious Fraud officers (SFO). In the case of team led by Customs Sections 6 and 8 of the Customs and Excise Management Act 1979 provides that the Commissioners may appoint or authorise foreign officers to perform the duties of a Customs officers but this authority may not in practice extend to arrest or coercive powers. According to section 2 of the Criminal Justice Act 1987, in the case of joint investigation teams led by SFO, the Director of the SFO may authorise any competent investigator, other than a constable, who is not member of the SFO to exercise on her behalf all of any of the powers conferred by that Section. With regard to SFO the Circular explains that United Kingdom police officers may not use the Section 2 powers and it is not envisaged that such powers would be given to foreign police officers. That is the reason why the Framework Decision does not require modification of SFO’s existing procedure. The content of the Circular reflects the content of the Framework Decision.

Article 2

Section 104 of the Police Reform Act provides that members of joint international teams from abroad are treated in the same way as constables while in United Kingdom with respect to offences committed against them. No mention to the opposite case in which officers commit an offence.

Article 3

With regard to civil liability the Explanatory Report to Police reform Act 2002 explains that section 103 has the purpose to provide a legal basis for civil liabilities arising from operations of joint investigation teams involving UK police officers and law enforcement officers from abroad. The result has been achieved by amending section 103 by inserting in each subsection a reference to joint investigation teams. However, it is not explained how the damage will be reimbursed and by whom.

Assessment: the United Kingdom transposed only provisions contained in Article 1 (7), Article 2 and Article 3 of the Framework Decision and communicated that it has no need to legislate in relation to other matters. To assess whether the legislation adopted is compliant with the Framework Decision or not, we have to consider that according to information provided by the Home Office, United Kingdom does not need a statutory legal base to set up joint investigation team and therefore further rules on joint investigation teams have been provided by a Circular. Nevertheless, as explained in 1.2.2, Member States are obliged to implement framework decisions in a manner which satisfies the requirements of clarity and legal certainty. Insofar the Home Office Circular is not legally binding, United Kingdom is not compliant with the Framework Decision.

EN 26 EN

2.2. Analysis of the legislation in progress

2.2.1. Belgium

Chapter II of the Belgium draft Bill dated 2 June 2004 concerning Mutual Assistance in Criminal matters deals with joint investigation teams. They may be set up only with other countries taking part, as well as Belgium, in international legislative instruments dealing with joint investigation teams. The competent authority to set up the team is well indicated.. Whenever the proposal of another country could affect the ordre public or any other public interest, the consent of the Minister of Justice is required. Joint investigation teams are set up with an agreement which has to indicate the purpose, the composition, the period of time it is supposed to operate and where it will act, the organisational arrangements. It may be agreed that representatives of third countries, Eurojust, Europol or OLAF will take part in the team. The Federal Prosecutor shall inform Eurojust and Europol of the setting up of the team. While operating in Belgium members and seconded members may carry out operations according to the Belgium law and with the supervision of the Belgium competent judicial authority.Seconded members are entrusted with operational police powers and shall be acting together with and under the direction of the competent Belgium authorities..The competent Belgium judicial authority leading the team may decide seconded members shall not be present while certain activities are carried on. While operating abroad Belgium members may ask their domestic competent authority to take investigative measures and these will be considered as domestic requests. Concerning information the bill recalls provisions and wording provided by Article (9) and (10) of the Framework Decision. No draft provision concerning civil and criminal liability of foreign officers has been forwarded to the Commission.

2.2.2. Italy

The Italian draft bill (N.2372/C/2002) concerns the ratification of the 2000 Convention on Mutual Assistance in Criminal Assistance and its Article 13. It provides that the competent Prosecutor, whenever investigations are complex and there is a need to operate abroad, may ask for the establishment of a joint investigation team directly to the foreign competent authority. Communication has to be made to the Head of the Public Prosecutor Office (Procura Generale della Repubblica), to the Minister of Justice and to the Minister of the Home Affairs. Where the request for the setting up comes from abroad it has to be addressed to the competent Prosecutor and the Ministers of Justice and Home Affairs have to be informed. The request for the setting up mustcontain the following information: the object of the investigation and the reason why a joint investigation team is appropriate, the composition of the team (listing separately Prosecutors and law enforcement authorities), the period it is supposed to operate, the participating of other countries or of experts representing international authority or agencies according to the TUE Treaty. Seconded members must operate under the direction of the competent Prosecutor and within the limits provided in the understanding setting up the team. They may investigate to find out the person responsible for the offence concerned, look for this person, gather evidence. They are allowed to act in covert investigation under the condition the conditions Italian law enforcement authorities would in their seconding State. The bill forwarded to the Commission does not deal with Article 1 (7), (8), (9), (10), Article 2 and Article3 of the Framework Decision.

EN 27 EN

2.2.3. Cyprus

The Republic of Cyprus forwarded the Commission a Draft concerning the implementation of the Framework Decision which fully reflects the content of the Framework Decision. Even the wording is similar. The only raising doubt concerns Article 3 of the draft which, concerning the scope, provides that a joint investigation team shall operate for the purpose of joint investigation of crimes of illicit trade in narcotics and psychotropic substances, trafficking and trade in human beings and terrorism. The wording is more or less the same as the recital 6 of the Framework Decision but in this last case crimes have been listed to give an example of the areas in which joint investigation team would be appropriate. Article 3 of the draft, instead, seems to restrict the possibility of setting up joint investigation teams to these crimes.

2.2.4. Hungary

Hungary forwarded to the Commission the text of already existing provisions and the bill concerning the adoption of further legislation on joint investigation teams, contained in Articles 55-59 of the Act CXXX of 2003. Article 55 has the same content of Article 20 of the Act 2002 but in this case it is up to the prosecutor to agree with the foreign competent authorities on the establishment of the team. Article 56 has the same content as Article 21. Article 57 provides for rules on the leadership. Article 58 provides for the powers of seconded members: any member of the investigative authority of a Member State operating in the territory of the Republic of Hungary may use physical force (in accordance with the provisions of the Law governing international co-operation by the criminal investigation agencies) and may carry fire arms in the context of their duties and for self-defence or emergency use only. Seconded members may also arrest any person caught committing a crime and detain him/her until (without delay) he/she is handed over to the Hungarian authorities. Insofar it is necessary for the performance of the tasks of the joint investigation team, any member of the judicial or investigative authority of a Member State operating in Hungary may receive declaration from any witness or accused person, act in covert investigation or in controlled deliveries and shall be entitled to be present when investigative measures are taken. Seconded members shall act under the direction of the Hungarian leader and whenever they commit an offence the seconding State has to be immediately informed. Article 59 provides that the Law shall apply also to teams set up “through” Eurojust and Europol. The draft does not deal with certain provisions of the Framework Decision such as Article 1 (7), (8), (9), (10), Article 2 and Article 3.

2.2.5. Slovak Republic

The Slovak Republic forwarded a Bill by which the existing provisions of the Criminal procedure Code, the Criminal Code and the Police Act should be amended in order to allow the setting up of joint investigation teams. According to the Bill, representatives of the relevant authority of other States as well as of a “body of the European Union” may be entrusted with investigative powers whenever a joint investigation team has been set up. The team may be set up where investigations require complex operation to be carried on in another State or where investigations require coordinated action. The leader shall be the Slovakian member and the other conditions governing the operating of the team must be agreed. Police shall cooperate with other police forces and with international organisations in particular with a view to exchanging information and officials. According to International treaties stipulated by Slovakia, Slovakian officers may be seconded to foreign states and perform their duties abroad. The bill contains very general provisions which do not cover the whole Framework Decision.

EN 28 EN

3. CONCLUSIONS

In order to assess the implementation of the Framework Decision, it should be borne in mind that Member States are obliged to adopt new legislation insofar as it is needed to transpose the Framework Decision. Therefore, if the judicial system, considered as a whole, already contains legally binding rules that assure the full application of the Framework Decision, no further legislation is needed. Moreover, it is not necessary that implementing legislation has the same wording as the Framework Decision as long as the final result guarantees the full application of the rules governed by the Framework Decision and creates a legal situation that is sufficiently clear and precise.

In general terms, the implementation of the Framework Decision has, in most Member States, required the adoption of new legislation or at least the amendment of certain internal provisions.

Some Member States transposed the Framework Decision into domestic laws having more or less the same content as the Framework Decision (Spain, Portugal) while others amended existing provisions or adopted legislation providing for new rules (Denmark, France, Latvia, Hungary, Austria, Finland, Sweden).

One Member State (United Kingdom) stated that only certain provisions needed to be enacted whereas the others have been transposed by means of a Circular. As the circular is not legally binding, the relevant provisions have been considered as not complying with the Framework Decision.

Three Member States (Germany, Lithuania and Malta) took the view that no specific legislation was needed to implement the Framework Decision.

In one Member State (the Netherlands) legislation in place allows the setting up of joint investigation teams “insofar as provided for by treaty or convention”. As the Framework Decision is not a treaty nor a convention, the relevant provisions are not compliant with the Framework Decision.

The conclusions which follow assess the implementation of each provision of the Framework Decision one by one. For further clarification and a detailed examination of national legislation see Annex 1.

With regard to Article 1(1), which is the most crucial part of the Framework Decision, it is sufficient that the general legal context allows the setting up of joint investigation teams as working groups operating in a transnational dimension for limited periods and with specific purposes. Almost every Member State with legislation in place has implemented this provision (Spain, France, Latvia, Lithuania, Hungary, Austria, Portugal, Finland, Sweden). In several Member States the legislation in force makes reference to an agreement (Spain, Latvia, Hungary, Austria, Portugal, Finland and Sweden), which in some cases is indicated as the Model Agreement adopted by the Council (Austria) whereas in others the term refers to general contact between competent authorities (France, Lithuania).

Regarding the proposal for the composition of the team contained in Article 1(2), it must be noted that legislation in place, whenever it refers to an agreement or a different understanding between competent authorities, even if it does not make reference to the Model Agreement adopted by the Council, implicitly involves the composition of the team.

EN 29 EN

With regard to Article 1(3), concerning the leadership of the team, the applicable law and the organisational arrangements, it is sufficient that each Member State provides for rules to be applied within its borders without specifying what rules are applicable in the other Member States. Nevertheless, it has been fully implemented by only two Member States (Spain and Austria). Four Member States have transposed only certain provisions such as general rules on the “supervisory powers” accorded to the team leader or on the applicable law (France), or such as provisions concerning the leader of the team and the applicable law without any reference to the organisational arrangements (Latvia, Hungary and Finland). The legislation adopted by the other Member States (Denmark, Germany, Lithuania, Malta, the Netherlands, Portugal, Sweden, United Kingdom) does not deal with these issues.

Concerning Article 1(4) (dealing with the definition of “seconded member”) it must be noted that, even if no provision expressly provides for a definition of “seconded member”, when implementing legislation refers to people seconded to the team, it is clear from the general context, that it refers to members of the joint investigation team from Member States other than the one where the team operates.

One of the most significant aspects of the Framework Decision deals with the powers accorded to seconded members (Article 1(5) and (6)). The implementing legislation differs considerably from one State to another. While in some Member States the activities with which seconded members may be entrusted are listed and specifically indicated (France, Malta and Finland), in others the provision is very general (Lithuania) or makes reference to the agreement required to set up the team (Spain), to other types of approval by the competent authority (Germany), or to national law (Austria) and in certain others it is up to the team leader to decide with which powers seconded members may be entrusted (Latvia and Portugal).

Article 1(7) deals with the case in which the team requires investigative measures to be taken in one of the Member States setting up the team. The aim of this provision is to prevent joint investigation teams from needing letters rogatory. Only three Member States (Spain, Finland, Sweden) have complied with this provision. One Member State (United Kingdom) has restricted investigative measures to search warrant and production orders and most of the national enacting legislation does not deal with it (Denmark, Germany, France, Lithuania, Hungary, Malta, the Netherlands, Austria, Portugal). One Member State (Latvia) adopted unclear provisions which seem not to comply with Article 1(7).

Article 1(8) concerning assistance needed from a Member State other than those participating in the team, or from a third State, has been fully transposed by two Member States (Spain and Portugal) and one Member State (Latvia) adopted unclear provisions. According to the information received, the other Member States have no relevant legislation in place regarding Article 1 (8).

Provisions on the providing of information (Article 1(9)) have been directly implemented by three Member States (Latvia, Portugal and Sweden). Nevertheless, in several cases the possibility for seconded members to provide the team with information available in the seconding Member State may be deduced from a general interpretation of the legislation (Spain, Hungary, Austria, Finland). No relevant provision could be found in the other Member States’ legislation.

Concerning the use of the information gathered (Article 1(10)) it may be observed that three Member States have fully complied with this provision (Spain, Portugal, Sweden) and two

EN 30 EN

have implemented it partially (Austria and Finland). One Member State adopted provisions which are not in line with the Framework Decision (Latvia).

With regard to Article 1(11) (stating that the Framework Decision shall be without prejudice to any other existing provisions or arrangements on the setting up or operation of joint investigation teams), no Member State forwarded specific legislation. Nevertheless, as far as no conflicting provision arises from the implementing legislations, it must be considered that every Member State is compliant with Article 1(11).

The option of permitting persons other than representatives of the Member States to take part in the team (Article 1(12)) has been provided for by six Member States only (Spain, Latvia, Hungary, Austria, Portugal, Finland). In one Member State legislation in place makes reference to “cases provided for in international treaty” (Lithuania). The other Member States have not transposed this provision.

With regard to Article 2 (criminal liability) implementing provisions have been adopted by six Member States (Denmark, Spain, Lithuania, Malta, Austria, United Kingdom); one Member State has implemented it partially (Germany). The others have not adopted any transposing measures.

Article 3 (civil liability) has been fully transposed in three Member States (Spain, Austria, Portugal) and partially transposed in five Member States (Denmark, Lithuania, Finland, Sweden, United Kingdom). No provision has been adopted in other Member States.

In conclusion, only one Member State adopted transposing measures which are fully compliant with the Framework Decision (Spain).

Nevertheless, it is essential to underline that whenever legislation in place provides for joint investigation teams to be set up through an agreement (see comments on Article 1 (1)), this should ensure a satisfactory implementation.

The Commission will, in a supplementary report, take into account further information supplied and update, where necessary, the information on national legislation. In the meantime, the Commission invites all Member States to ensure the rapid and complete transposition of the Framework Decision on Joint investigation teams and to inform it of any measures taken.

EN 31

EN

ANNEX

TABLE OF NATIONAL MEASURES TAKEN TO COMPLY WITH THE FRAMEWORK DECISION

DK DE ES FR LV LT HU MT NL AT PT FI SE UK

ART.1 Act N.258 of 8.5.2002

RIVAST 18.9.1984

Organic Law 11/2003

Art.17 L.9.3.2004

L 20.6.2002

Art. 171-67 CPC

Act LIV of 2002

Art.435E CP

L.26.4.2002 FL36/2004 EU-JZG§§ 60,61,76

L 48/2002

L 1313/2002

Act + Ordinance 18.12.2003

PAR.1 Art.1-2 OL 11/2003

Art.695-2 CPC

Art.614-616 CPC

Art. 171 CPC

Art.20-21

Art.552qa §§ 60, 61, 76 Art.145-A.1

Section 1 Act. Sec1,2,3,

Ord. Sec 2,3,4,5,6

PAR.2 Art.5 OL 11/2003

Art.145-A.2

PAR.3 Art.5-6 OL 11/2003

Art.695-2 CPC

Art. 617 CPC

Art.21-22

§61 Section 3

PAR.4 Art.2 OL 11/2003

552qa

PAR.5 Art.7 OL 11/2003

Art. 67 CPC

Art.145-A.3

Section 4

EN 32

EN

DK DE ES FR LV LT HU MT NL AT PT FI SE UK

PAR.6 Section 138 RIVAST 18.9.1984

Art.7 OL 11/2003

Art.695-2 CPC

Art. 617,618 CPC

Art. 67 CPC

Art.435E CP

552qa-552qb

§ 61 Art.145-A.4

Section 4

PAR.7 Art.7 OL 11/2003

Art. 618 CPC

Section 5 Section 4 Crime Act 2003 SEC 16, 18, 27

PAR.8 Art.7 OL 11/2003

Art. 618 CPC

Art.145-A.5

PAR.9 Art. 619 CPC

552qd Art.145-A.6

Section 6,7

PAR.10 Art.8 OL 11/2003

Art. 617 CPC

552qd §62 Art.145-A.7

Section 6 Section 5

PAR.11

PAR.12 Art.10 OL 11/2003

Art. 618 CPC

Art. 67 CPC

Art.23 §61 Art.145-A.8

Section 2

EN 33

EN

DK DE ES FR LV LT HU MT NL AT PT FI SE UK

ART.2 Section 3.1 of Act N.258/2002

10.9.1984 Act to give effect to the Protocol of 27/9/96 to the Convention for the Protection of the Financial interests of the EC

OL 3/2003

Art. 230 PC

Art.435E §59 Police Reform Act 2002 Sec 104

ART.3 Section 3.2 of Act N.258/2002

Art.11 OL 11/2003

Art. 6.272 CC

§59 Art.145-B

Section 7

Section 8

Police Reform Act 2002 Sec 103

PAR.1 Section 3.2 of Act N.258/2002

Art.11.1 OL 11/2003

§59.2 Art.145-B.1

PAR.2 Art.11.2 OL

§59.3 Art.145-B.2

EN 34

EN

11/2003

PAR.3 Art.11.3 OL 11/2003

§59.4 Art.145-B.3

PAR.4 §59.5 Art.145-B.4