the european union and cooperation in criminal matters: the

No. 25 2006

The European Union and Cooperation in Criminal Matters:the Search for Balance

Matti Joutsen

The European Institute for Crime Prevention and Control,affiliated with the United Nations

Helsinki, 2006

HEUNI Paper No. 25

The European Union and Cooperation in Criminal Matters:the Search for Balance *

Matti Joutsen

*The article is based on a paper presented in the series of lectures in honor of Professor Emerita InkeriAnttila, former director of HEUNI. This paper is published on the eve of her 90th Anniversary

This document is available electronically from:http://www.heuni.fi

HEUNIThe European Institute for Crime Prevention and Control,affiliated with the United NationsP.O.Box 444FIN-00531 HelsinkiFinlandTel: +358-103665280Fax: +358-103665290e-mail:[email protected]://www.heuni.fi

ISSN 1236-8245

Contents

1. DIFFERENT PERCEPTIONS OF BRUSSELS........................................7

2. THE BACKGROUND:the evolution and outlines of European Union cooperationin criminal justice ......................................................................................7

3. THE FIRST CLAIM:“European Union cooperation in criminal justicehas had little impact”...............................................................................103.1 Overview of progress in EU cooperation in criminal justice .................................... 103.2 Police cooperation................................................................................................... 103.3 Prosecutorial cooperation ....................................................................................... 163.4 Juridical cooperation ............................................................................................... 183.5 Mutual evaluations .................................................................................................. 243.6 Cooperation in the formulation of domestic law and policy ..................................... 24

4. THE SECOND CLAIM:“European Union cooperation in criminal justice is an attemptto create a unified criminal justice system, with its own criminaland procedural law” ................................................................................29

5. THE THIRD CLAIM:“European Union cooperation in criminal justice is leadingtowards a more punitive criminal policy” ..............................................34

6. PULLING IT ALL TOGETHER:what is the reality behind the myths? ....................................................41

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THE EUROPEAN UNION ANDCOOPERATION IN CRIMINALMATTERS: THE SEARCH FORBALANCE

1. Different perceptions of Brussels

What is the European Union doing to control crime?

In the popular discussion, there appears to be threecommon opinions of the impact of the EuropeanUnion on criminal justice. One opinion is dismissive:the European Union spends its time fine-tuning thelegal details of instruments that have little impacton everyday life. A second opinion is that theEuropean Union is evolving into a super-state that(perhaps misguidedly?) is seeking to harmonisecriminal and procedural law in all the MemberStates. The third opinion is that the European Unionis working hand in hand with law-and-orderadherents, focusing on the control of crime andfavouring a more punitive criminal policy.

While scattered evidence can be marshalled tosupport any or indeed all of these views, they remaincaricatures of reality. European Union cooperationin criminal justice has evolved so rapidly, andextended so far, that we should not be surprised athow difficult it is to give an objective assessment ofwhat has been done, what is being done, and whatwill be done next. The present paper seeks to placethe work of the EU within the context of broaderinternational cooperation, and thus give a bettersense of the direction in which EU criminal justicehas evolved and how it may evolve in the years tocome. After looking at the evidence for all three ofthe opinions just mentioned, the paper suggests that

European Union cooperation in criminal justice doesnot fit any of the three views. Instead, EU criminaljustice can be seen to be national criminal justicetaken to a new level, with much the same goals andinner tensions as in any and all of the Member States.

2. The background: the evolution andoutlines of European Unioncooperation in criminal justice

The European Union represents a unique form ofinternational co-operation. Almost all Western andCentral European countries have joined together toform an intergovernmental structure. Twenty-fivecountries acting together deal with important policyquestions that have cross-border implications. Thesedecisions concern not only law enforcement andcriminal justice, but also for example migration andborder control, taxation, the economy, consumeraffairs, industry, agriculture, and so on. Furtherexpansion of the European Union is underway.Bulgaria and Romania are set to join in 2007, andnegotiations have begun with Croatia, FYROM(Macedonia)1 and Turkey. More applications can beexpected in particular from southeastern Europe(Albania, Bosnia-Herzegovina and Serbia).2

Originally the European Union (then referred to asthe European Communities) focused on economicintegration and the establishment of the CommonMarket. The Common Market is based on theprinciple that persons, products, services and capitalshould be allowed to move freely from one countryto the next. Such freedom of movement obviouslybenefits the economy, but it also opens up newopportunities for crime, and new possibilities foroffenders to slip from one country to another, tryingto evade justice.

1 Macedonia is referred to officially in the EU as “the former Yugoslav Republic of Macedonia”, abbreviated as FYROM.2 It should be noted that all of the Member States of the European Union are also members of a separate intergovernmental organisation,the Council of Europe.3 (Note the potential for confusion in terminology: the Council of Europe is not the same as the EuropeanCouncil.) The Council of Europe has adopted a large number of conventions, recommendations and resolutions on judicial cooperation,including not only an extradition treaty (1957) and a mutual legal assistance treaty (1959), but also the important European Conventionon Human Rights and Fundamental Freedoms.

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In such a situation, the conventions that had beenadopted by the Council of Europe were no longersufficiently comprehensive and effective to matchthe pace of integration in the EuropeanCommunities. For this reason, the 1992 MaastrichtTreaty extended the mandate of the EuropeanCommunities to include co-operation in justice andhome affairs.3

Following the Maastricht Treaty, decisions in theEuropean Union on justice and home affairs areprimarily made by three bodies, the Council ofMinisters, the Commission and the EuropeanParliament. In addition, and in particular after theentry into force of the Amsterdam Treaty, theEuropean Court of Justice exercises some judicialfunctions. Usually, the Commission makes theproposals that lead in time to EU decisions, althoughalso a Member State can do so. The decisions areprepared in working groups with representativesfrom the different Member States, and are adoptedby the Council of Ministers. For justice and homeaffairs, this Council consists of the Ministers ofjustice and internal affairs of each Member State.The European Parliament is consulted, but its viewsare not binding. Decisions under the third pillarrequire consensus: each and every one of the twenty-five Member States must agree to the decision, or atleast abstain from voting against the measure inquestion.

The most important types of decisions are calledframework decisions. These establish a certain goal,such as the criminalisation of certain conduct, orthe establishment of certain procedures for cross-border cooperation. It is then up to each MemberState to change its own legislation in order to achievethe goals that have been set in the frameworkdecisions. Framework decisions are binding on theMember States. They are, in a way the third pillarcounterparts to directives in the first pillar. However,other than is the case with directives, they do nothave direct effect. This means that individuals cannotrely on them directly against the state. Nonetheless,they may have some form of “direct applicability”

under certain circumstances, following the Court’sjudgement in the Pupino case.4

As with framework decisions, also decisions underthe third pillar are binding but do not have directeffect. “Decisions” are used for any purpose otherthan approximation of law, for instance to set upbodies such as Eurojust.

The European Union has also drafted its own treatiesto update and supplement the Council of Europetreaties. This work led to extradition treaties adoptedin 1995 and 1996 and to a mutual legal assistancetreaty adopted in 2000. The MLA treaty entered intoforce in August 2005. Neither extradition treaty hasentered into force, since they required ratificationby all Member States. The ratification process wasstill in progress when the need for the treaties wasobviated by the adoption of the framework decisionon the European Arrest Warrant.

The framework decisions, the decisions and thetreaties, together with for example the judgmentsof the European Court, form part of what is knownas the acquis communautaire of the European Union,the body of law that is binding on all Member Statesand (in a political sense) also on countries seekingto join the EU. Through the EEA agreement, theyalso have an effect in Norway, Iceland, Switzerlandand Liechtenstein, and are also important to otherneighbouring countries that are potential candidatesto the EU.

In 1997, the European Union decided on a set ofmeasures (an “action plan”) that needed to be takenin response to organised crime. These measuresincluded the adoption of decisions related to thecriminalization of participation in a criminalorganisation and money laundering, more effectivemeasures for the tracing of assets, the identificationof best practice in mutual assistance, and closecooperation with the countries that had recentlyapplied for membership in the European Union. Asystem for mutual evaluation was set up, by whichteams of experts from different countries wouldassess how efficiently each Member State was

3 Following the entry into force of the Treaty of Amsterdam, cooperation in police and criminal matters forms what is called the “thirdpillar” of the European Union . The first pillar consists essentially of issues related to the original internal market as well as asylum,immigration and cooperation in civil law, and the second pillar consists of foreign policy and security policy.4 Case C-150/03, 16 June 2005.

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dealing with a certain issue, such as extradition ormutual legal assistance. The action plan also createdwhat is known as the European Judicial Network,which allows the practitioners responsible forextradition and mutual legal assistance to be in directcontact with their counterparts in other countries(instead of, as is the usual case elsewhere in theworld, going through diplomatic channels). Becauseof the strong support given on the highest politicallevel to the action plan, many of the measures calledfor in the action plan were adopted in less than threeyears – an impressive achievement in internationalcooperation.

Two years later, in October 1999, a special EuropeanCouncil organised in Tampere, Finland, laid out aprogramme for the EU to follow in dealing withquestions such as migration, asylum, criminal andcivil justice and responding to organized crime.

Each of the Member States of the European Unionhas its own unique criminal justice system, with itsown criminal and procedural laws. As a result, thenational definition even of basic types of crime, andthe rights enjoyed by suspects and defendants, canvary considerably. These differences can complicateor even prevent extradition or mutual assistance. Forexample, many Member States have traditionallyrequired double criminality as a condition forextradition or mutual assistance: the offence inquestion must be recognised as an offence in theMember State requesting extradition or assistanceand in the Member State asked to extradite or toprovide assistance.

There are basically two ways to overcome thesenational differences in law: either require that allstates have more or less the same laws(harmonisation), or have the states agree to enforcedecisions and judgments made in another state(mutual recognition). Those in favour ofharmonisation argue that the laws defining the mainforms of cross-border crime, as well as the basicelements of criminal procedure, should be the samein all EU Member States. Those in favour of mutualrecognition, in turn, argue that harmonisation is notnecessary, as long as the courts and other authorities

of each Member State are prepared to enforcedecisions taken in other Member States. (A point ofcomparison is article IV(1) of the Constitution ofthe United States, according to which each stateshould give “full faith and credit” to the judicialproceedings of each other state.)

In 1999, the European Union threw its weight onthe side of mutual recognition. However, theEuropean Union also decided that work shouldcontinue on harmonisation of key areas oflegislation, such as the prevention and control ofmoney laundering.

Two years later, this work on legal integration washastened by the impact of the terrorist attacks in NewYork and Washington, D.C. on 11 September 2001.The attacks led to the adoption of an EU decisionthat harmonised domestic legislation definingterrorist crimes. Furthermore, only three monthsafter the attacks, the European Union agreed its firstdecision on mutual recognition, the so-calledEuropean arrest warrant. This was formally adoptedon 13 June 2002. This framework decision replacedextradition proceedings entirely with a much morerapid procedure for the surrender of fugitives. Soonafter, a decision was adopted on the mutualrecognition of orders on the freezing of property andevidence. As a result of these two decisions, once acourt in any Member State orders the arrest of acertain suspect or convicted offender, and thefreezing of his or her property, the courts in any andall other Member States can and should enforce theseimmediately.5

Towards the end of 2004, the European Unionreviewed the progress it had made since 1999, anddecided, by approving the so-called HagueProgramme, on what further work was needed todevelop the European area of freedom, security andjustice. Between 2005 and 2010, decisions were tobe made that would help to overcome cross-borderproblems connected with, for example, minimumstandards for dealing with suspects and defendants,the use of pre-trial detention, the collection ofevidence, the checking of criminal records, and thetransfer of sentenced offenders to their state of

5 One more consequence of the terrorist attack was that the EU decided to supplement the existing patchwork of bilateral treaties that the.Member States had with the United States, with more general and updated EU-US treaties on extradition and mutual legal assistance

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nationality or state of residence. Attention was alsoto be paid to developing good practice, not only inextradition and mutual legal assistance, but also forexample in crime prevention.

The new Constitutional Treaty signed on 29 October2004 (if and when ratified by all 25 Member States)would lead, among other things, to the eliminationof the distinction between pillars. According to theproposal, decisions even on justice and home affairswould no longer have to be made by consensus, butby a “qualified majority.”6 The Commission wouldin practice have the right of initiative, although alsoone-fourth of all Member States, acting together, canpresent an initiative. The European Parliamentwould have a considerably stronger role ininfluencing the contents of decisions.7

3. The first claim: “European Unioncooperation in criminal justice hashad little impact”

3.1. Overview of progress in EU cooperation incriminal justice

Perhaps the most common opinion of the EuropeanUnion is that it is a massive intergovernmentalbureaucracy that churns out directives andregulations that have no real impact in practice (otherthan costing a lot of money and causing endlessfrustration to those entrepreneurs who have to putup with all of this tomfoolery).

But are, in fact, EU provisions on cooperation incriminal justice ineffective? If we take intoconsideration the fact that this cooperation did notreally get underway until the 1992 Treaty ofMaastricht gave the EU competence in justice andhome affairs, quite a lot of work has been done inthe dozen or so years since then. This can beillustrated by comparing present EU cooperationwith the “status quo” of ordinary international

cooperation, among the police, prosecutors and thejudiciary. Such a comparison in provided in the tablebelow on page 11.

3.2. Police cooperation

The global status quo:The general rule around the world is that lawenforcement personnel do not have powers outsideof their jurisdiction. Notices are communicatedthrough Interpol. A few countries have posted liaisonofficers abroad, and informal contacts are used onan ad hoc basis. Otherwise, officially, informationmay not and is not exchanged except through formalbilateral channels, and even then only in a few cases.Coordination of cross-border investigations is rare,and requires considerable preparation throughformal channels.

The European Union reality:· an international body, Europol, co-ordinates cross-border investigations, andseeks to provide support to domestic lawenforcement services in specialist fields.· a network of liaison officers has beendeveloped.· joint investigative teams (with membersfrom the law enforcement agencies ofdifferent countries) can be set up.· Europol produces threat assessments onorganized crime, bringing together datafrom all Member States.

Within the framework of the Schengen conventions,which are in force in over one half of the EU MemberStates,

· the Schengen information system allowsnational law enforcement agencies toshare data on many key issues almostinstantaneously with their colleagues inother countries. The system encompasses

6 What constitutes a “qualified majority” would depend on a combination of the number of Member States in support, and the size of theseMember States.7 As of August 2006, fifteen out of twenty-five Member States have ratified the Constitutional Treaty. However, in referendums organizedin France and the Netherlands during the spring of 2005, a clear majority voted against ratification. At the time of writing, the process ofratification is basically on hold. The European Union is engaged in a delicate debate over whether and how to proceed with ratification.


”ordinary” international cooperation EU cooperationpoliceco-operation

• co-operation is based on informal contacts,relatively rare bilateral agreements, and thework of Interpol

• only a few non-EU states (in particular theUSA) use liaison officers

• information can be exchanged throughInterpol. Otherwise, information is ex-changed through slow official channels orthrough informal channels

• Europol co-ordinates cross-border investigations andprovides support for national police authorities. Euro-pol’s operational powers are to be developed

• the European Anti-Fraud Office (OLAF) coordinatesinvestigations of offences directed against the financialinterests of the EU

• also other structures for police cooperation have beenestablished (such as cooperation among heads of police)

• an extensive liaison officer network has been created(including through Europol)

• the possibility of establishing joint investigative teamshas been created (although so far, few such teams havebeen set up in practice)

• the exchange of information is being developed, forexample through implementation of the “availability ofinformation” principle

• police cooperation is especially intensive among the so-called Schengen countries (SIS, SIRENE, cross-bordersupervision, controlled delivery etc.)

prosecutorialco-operation

• prosecutorial cooperation is based on a veryfew bilateral or multilateral agreements

• the International Prosecutors Associationprovides a loose structure for cooperation

• Eurojust coordinates cross-border prosecutorial coop-eration

• an increasing number of EU instruments permit directcooperation between and among prosecutorial authorities

• the European Judicial Network facilitates direct coop-eration between prosecutorial authorities

• a liaison magistrate network has been established• also the Schengen arrangements facilitate prosecutorial

cooperationjudicialco-operation

• judicial cooperation (primarily extraditionand mutual legal assistance) is based on afew bilateral or multilateral agreements

• requests go through central authorities orthrough diplomatic channels

• often, requests are not answered, the re-sponse comes too late, or comes in a formthat cannot be used in the courts of the re-questing State

• all EU Member States are parties to the major multilat-eral agreements on judicial cooperation (Council ofEurope 1957, 1959, 1990; United Nations 1988, 2000and 2003)

• the EU has its own recent agreements on extradition(replaced by the EAW) and mutual legal assistance

• the EU promotes standards of good practice, for examplethrough a rigorous peer review system

• mutual recognition of judicial decisions has become thebasis for judicial cooperation within the EU; the first in-struments on mutual recognition have entered into force(the EU arrest warrant; the freezing of property and evi-dence; and fines)

harmonisation ofcriminal law andcriminal procedure

• harmonisation is based on a few rare multi-lateral agreements and on a number of non-binding recommendations and resolutions,all of which leave extensive discretion tothe State parties

• the EU has adopted a large number of instruments on theharmonisation of criminal and procedural law, and thesehave had an impact in practice

• attention has also been paid to the rights of victims, andof suspects and defendants

wider internationalcooperation andtechnical assis-tance

• technical assistance is given almost solely onan uncoordinated ad hoc basis, through bilat-eral arrangements

• multilateral technical assistance is ratherlimited; even so, this may have a significantimpact in certain situations (Council ofEurope, UN, OECD, World Bank, etc)

• the impact of the EU is particularly strong on the evolutionof the legal systems of candidate countries

• the EU seeks to engage in coordinated international coop-eration and, as appropriate, technical assistance with anumber of countries (the “New Neighbours”, the Mediter-ranean countries, Latin America; China, the US and Can-ada)


some 50,000 terminals in the MemberStates.· law enforcement authorities are allowedhot pursuit across borders (under certainconditions).· law enforcement authorities are allowedto engage in surveillance in the territoryof other countries (under certainconditions).· law enforcement authorities are allowedto engage in controlled delivery.

EuropolEuropol was established in October 1998, when theEuropol Convention entered into force among the(then) fifteen European Union countries. Europol isan international organization that has itsheadquarters in The Hague, in the Netherlands.

The objective of Europol is “to improve ... theeffectiveness and cooperation of the competentauthorities in the Member States in preventing andcombating terrorism, unlawful drug trafficking andother serious forms of international crime wherethere are factual indications than an organizedcriminal structure is involved and two or moreMember States are affected by the forms of crime inquestion in such a way as to require a commonapproach by the Member States owing to the scale,significance and consequences of the offencesconcerned.”

The principal tasks of Europol consist of1) facilitating the exchange of informationbetween the Member States,2) obtaining, collating and analysing informationand intelligence (including the preparation of annualthreat assessments regarding organized crime),3) notifying the competent authorities of theMember States of information concerning them andof any connections identified between criminaloffences,4) aiding investigations in the Member States byforwarding all relevant information to the nationalunits, and5) developing a computerized system ofcollected information.

Europol is also charged with developing specialistknowledge of the investigative procedures of thecompetent authorities in the Member States andproviding advice on investigations, and withproviding strategic intelligence to assist with andpromote the efficient and effective use of theresources available at the national level foroperational activities. For this purpose, Europol canassist Member States through advice and researchin training, the organization and equipment of theauthorities, crime prevention methods, and technicaland forensic police methods and police procedures.

Work in progress. In October 1999, soon after theEuropol Convention entered into force, a specialEuropean Union Council was held in Tampere,Finland, to discuss the strengthening of the work ofthe EU in justice and home affairs. In respect ofEuropol, the Tampere meeting concluded, inter alia,that “Europol’s role should be strengthened byallowing it to receive operational data from MemberStates and authorising it to ask Member States toinitiate, conduct or coordinate investigations or tocreate joint investigative teams in certain areas ofcrime, while respecting systems of judicial controlin Member States”. This was an important goal, sinceit would allow Europol a considerably more activerole in investigations.

In March 2000, a new action plan against organizedcrime was adopted.8 It contains a number of pointsregarding Europol:

- Europol should be able to carry outstudies of practice at the national andEuropean Union level and of theireffectiveness, develop common strategies,policies and tactics, organize meetings,develop and implement common actionplans, carry out strategic analyses,facilitate the exchange of information andintelligence, provide analytical support formultilateral national investigations,provide technical, tactical and legalsupport, offer technical facilities, developcommon manuals, facilitate training,evaluate results, and advise the competentauthorities of the Member States.

8 The Prevention and Control of Organised Crime: A European Union Strategy for the beginning of the new Millennium.


- consideration should be given to thefeasibility of setting up a database onpending investigations, making itpossible to avoid any overlap betweeninvestigations and to involve severalEuropean competent authorities in thesame investigation.- Europol should help in establishing aresearch and documentation network oncross-border crime, and in organizingthe collection, storage, processing,analysis and exchange of relevantinformation, including information heldby law enforcement services on reportson suspicious financial transactions. Theestablishment of compatible criminalintelligence systems among MemberStates should be a long-term goal.

SchengenDue in part to the slowness with which policecooperation was being developed in Europe andto political differences of opinions over the extentof this cooperation (the 1992 Maastricht Treaty,which created the third pillar, was still in thefuture), some members of the European Union(originally, Belgium, France, Germany,Luxembourg and the Netherlands) decided tomove among themselves to a “fast-track”alternative. The result was the SchengenAgreement of 1985 and the Schengen Conventionof 1990, which were designed to eliminate internalfrontier controls, provide for more intensive policecooperation, and establish a shared data system.

The need for the “Schengen arrangements” arosewith one of the primary goals of economicintegration, the elimination of border controls onthe transit of persons, goods, capital and services.Quite simply, the Schengen area was to become a“passport-free zone.” Although this eliminationof border control undoubtedly promotes trade andcommerce, at the same time it makes moredifficult the task of controlling the entry and exitof offenders and suspects.

The “Schengen group” currently consists of Austria,Belgium, Denmark, Finland, France, Germany,Greece, Italy, Luxembourg, the Netherlands, Portugal,Spain and Sweden, as well as, from outside the EU,Iceland, Norway and Switzerland.9 The UnitedKingdom and Ireland have not joined the parts ofSchengen relating to border controls, since they wishto retain separate passport controls. The ten newMember States that joined on 1 May 2004 have notyet been approved as “Schengen-ready,” but some mayjoin already during 2007.

Police cooperation within the framework of Schengenincludes cross-border supervision, “hot pursuit” acrossborders into the territory of another Member State;and controlled delivery (i.e. allowing a consignmentof illegal drugs to continue its journey in order todiscover the modus operandi of the offenders, or toidentify the ultimate recipients and their agents, inparticu-lar the main offenders). These forms ofcooperation have been hard-won: they did not see thelight of day until after protracted negotiations betweenthe Governments concerned, and even then they havebeen hedged by a number of restrictions.

As a trade-off to ending checks on internal borders,the Schengen countries agreed on the establishmentof the Schengen Information System (SIS). Thisconsists of a central computer (in Strasbourg, France)linked to a national computer in each country, and to atotal of some 50,000 terminals. When fully operational,data entered into any one computer (for example dataon wanted persons, undesirable aliens, persons to beexpelled or extradited, persons under surveillance, andsome stolen goods) would immediately be copied tothe other national information systems. An electronicmail system (SIRENE; short for SupplementaryInformation Request at the National Entry) allows forthe transfer of additional information, such asextradition requests and fingerprints. Yet another data-connected acronym is VISION, which refers to the“Visa Inquiry System in an Open-Border Network”.

9 The principal reason for the inclusion of Norway and Iceland is that these two countries are part of the passport-free zone formed amongthe Nordic countries. The other three Nordic countries, Denmark, Finland and Sweden, are members of the Schengen group. Switzerland,in turn, is surrounded by EU Member States.


At present, work is underway on the developmentof “Schengen II”, which could be called the secondgeneration of the information system.

The strength of the Schengen arrangements lies inthe fact that they allow for highly practical lawenforcement cooperation, at a level that is unique inthe world. At the same time, the arrangements havebeen subjected to criticism. Although thearrangements have been made specifically torespond to the opening of the borders between thecountries in question, the question remains whetherthese arrangements are still insufficient to respondto the increased mobility of offenders. Secondly, thearrangements do not include all European Unioncountries, while on the other hand they do includethree non-EU countries (Iceland, Norway andSwitzerland). This inevitably leads to some practicaldifficulties. Third, since there is no supervisory courtstructure or any effective parliamentary review ofSchengen decisions, it has been suggested thathuman rights concerns will receive less attentionthat the law enforcement priorities. (On the otherhand, any actions taken would necessarily fall underthe jurisdiction of at least one of the Schengencountries, and so the legality of the action could thenbe scrutinized under the appropriate national law.)

The European Anti-Fraud Office (OLAF)The European Anti-Fraud Office (OLAF) wasestablished in 1999 to help protect the financialinterests of the EU. The EU budget providesconsiderable sums in financial support, and thus hasbecome a tempting target for fraud and cooperationcommitted by individual offenders and organizedcriminal groups.

OLAF is part of the Commission, but has beengranted the independent status required to carry outinvestigations together with competent nationalauthorities. Its mandate is restricted to offencesdirected against the financial interests of the EU,but this still provides a wide ambit. In the preventionof fraud, OLAF can carry out so-called internalinvestigations (i.e. within EU structures) or, on thebasis of cooperation with national law enforcementagencies, so-called external investigations. OLAFcan also cooperate with third countries on the basisof special agreements.

Information gathering and analysisLaw enforcement authorities world-wide would beamong the first to agree that a more proactive,intelligenceled approach is needed to detect andinterrupt organised criminal activities, apprehend theoffenders, demolish the criminal networks, and seizeand confiscate the proceeds of crime. Informationis needed on the profile, motives and modusoperandi of the offenders, the scope of and trendsin organised crime, the impact of organised crimeon society, and the effectiveness of the response toorganised crime. This information includesoperational data (data related to suspectedindividuals and to detected cases) and empirical data(qualitative and quantitative criminological data).

On the global level the arrangements for theexchange of operational and empirical data continueto be ad hoc, between individual law enforcementagencies or even individuals. Such ad hocarrangements also raise concerns over whether ornot domestic legislation on data protection is beingfollowed. Implementation of the United NationsConvention against Transnational Organized Crime(in particular articles 27 and 28) should provide afirmer foundation for this exchange of data, butnational practice will undoubtedly be slow inaligning itself with the “soft” requirements of theConvention, which allows for considerable nationaldiscretion in implementation.

The Schengen information system has already beenmentioned above. Within the broader EuropeanUnion framework, several arrangements are alreadyin place for gathering and analysing data:

· a joint action adopted in 1996 deals withthe role of liaison officers. Their functionis specifically to focus on informationgathering. They are to “facilitate andexpedite the collection and exchange ofinformation though direct contacts withlaw enforcement agencies and othercompetent authorities in the host State”,and “contribute to the collection andexchange of information, particularly ofa strategic nature, which may be used forthe improved adjustment of measures” tocombat international crime, includingorganized crime. So far, over 300 liaison


officers have been posted by EU countries,and they work in close cooperation withone another.· Europol has produced annual reports onorganised crime based on data providedby Member States. These annual reportshave been used in an attempt to definestrategies. Over the years, the quality andutility of these annual reports haveimproved, even though continued work isbeing done to improve the validity,reliability and international comparabilityof the data. One particular feature of theannual reports is that they containrecommendations based on an analysis ofthe data. (As of 2006, these reports havebeen presented in the form of threatassessment reports.)· various decisions have been taken on theexchange of information on specificsubjects. For example, a decision adoptedin 1997 requires the exchange ofinformation between law enforcementagencies when potentially dangerousgroups are travelling from one MemberState to another in order to participate inevents.· the European Union has created anumber of financial programs toencourage the closer involvement of theacademic and scientific world in theanalysis of organised crime.· a European police research network isbeing established to act as an informationsource on research results, otherdocumented experiences and goodpractice in crime control.· on 20 December 2002, Europol and theUnited States signed an agreement on theexchange of personal data. This allows theUnited States to benefit from theoperational and strategic analyses carriedout by Europol on the basis of data fromall European Union Member States.

Work in progress in police cooperationAt the end of 2004, the European Council adopted anew program that calls for a number of newmeasures. A key element is the adoption of whathas become known as the “principle of availability.”This is defined to mean that a law enforcementofficer in one Member State who needs informationin order to perform his or her duties can obtain thisfrom another Member State, and that the lawenforcement agency in the other Member Statewhich holds this information should make itavailable for the stated purpose, taking into accountthe requirement of ongoing investigations in thatState. The first instruments implementing theprinciple are now being drafted. The provision ofinformation would be hedged by some conditions,including data protection.

Within the EU, this issue of data protection in policecooperation has been seen to require a more generalapproach. For this reason, a second initiativelaunched during the spring of 2006 is designed toresult in a framework decision on the issue. Boththe European Council and the European Parliamenthave given this work a relatively high priority, andthe framework decision should be ready towards theend of 2006 or the beginning of 2007.

A third initiative, taken by a smaller group ofcountries, is the so-called Prüm Convention. Signedon 27 May 2005 by Austria, Belgium, France,Germany, Luxembourg, the Netherlands and Spain(and soon to be joined by Finland), it allows the lawenforcement authorities of the different countries tohave direct online access to one another’s databases,compare DNA profiles and fingerprints, andexchange the corresponding personal data.

Three initiatives are related to criminal records. Theone that is furthest along (as of the summer of 2006)calls for the expedited transfer of criminal recordsinformation on request. A second initiative derivesfrom a proposal that central European criminalrecords be set up. This encountered such resistance(for a variety of legal, practical and technicalreasons) that the proposal has been scaled down toa model where a centralised data bank would contain


information only on whether or not criminal recordsexist regarding a specified individual who is not aEU national in one of the EU countries; if so, theauthority requesting the information would turn tothe EU country in question. The third initiative dealswith the extent to which criminal records should betaken into consideration in criminal proceedingsbeing conducted in another EU Member State.

3.3. Prosecutorial cooperation10

The global status quo:International contacts between prosecutorialauthorities are based on bilateral and on the fewmultilateral treaties on mutual legal assistance.Informal contacts are facilitated by the InternationalAssociation of Prosecutors and other, similar non-governmental organizations.

The European Union reality:· a special structure, the European JudicialNetwork, has been set up to promote directcontacts between prosecutors. The systeminvolves computerized links between theMember States, and in time will probablyallow automatic and direct translation andtransmission of requests.· several European Union Member Stateshave posted liaison magistrates abroad,with a specific mandate to facilitateresponses to requests for extradition,EAWs and mutual legal assistance, and amore general mandate to promoteinternational cooperation.· prosecutorial and judicial co-operationis promoted also by direct contacts throughthe Schengen structures.· an international structure, Eurojust, hasbeen set up to assist in the coordination ofthe prosecution of serious and cross-border cases.

The European Judicial Network and thestrengthening of informal contactsAmong the greatest difficulties in extradition andmutual legal assistance is the lack of informationon how a request should be formulated so that itcan readily be dealt with in another country, andthe lack of information on what progress is beingmade in the requested State in responding to therequest.

In those (rare) cases where the practitionerpersonally knows his or her counterpart in the othercountry, informal channels can be used. TheEuropean Union has created a structure for fosteringdirect contacts between practitioners, the “EuropeanJudicial Network” (EJN).11 This network consistsprimarily of the central authorities responsible forinternational judicial cooperation in criminalmatters, and of the judicial or other competentauthorities with specific responsibilities within thecontext of international cooperation. The EJNfocuses on promoting cooperation in respect ofserious crime such as organized crime, corruption,drug trafficking and terrorism.

The EJN is promoting cooperation in a number ofdifferent ways. First of all, it organizes regularmeetings (at least three times a year) ofrepresentatives of the contact points. These meetingshave dealt, for example, with case studies, generalpolicy issues, and practical problems. Organizingthe meetings in the different EU Member Statesprovides an additional benefit: the host country canpresent its system for international cooperation, andthe participants can get to know one another. Bothfactors are important in instilling confidence in oneanother’s criminal justice system.

Second, the EJN is preparing various tools forpractitioners. One such tool is a website and a CD-rom that provide practitioners with information onwhat types of assistance can be requested in thedifferent Member States (sequestration of assets,electronic surveillance and so on) for what types of

11 Joint Action of 29 June 1998. A similar structure has been set up for cooperation in civil matters.

10 For systematic reasons, prosecutorial cooperation is here dealt with separately from judicial cooperation although most prosecutorialcooperation in most Member States falls into the broader category of judicial cooperation.


offences, how to request it, and whom to contact.The website and the CD-rom also contain the textsof relevant international instruments and nationallegislation. A second tool is a computerized “atlas”of the authorities in the different Member States,which shows who is competent to do what in thedifferent Member States in relation to internationalcooperation. In time, the contact points in all twenty-five Member States will be connected with oneanother by a secure computer link that can be usednot only to follow up on requests, but even to sendthe requests themselves.

A third tool is a uniform model for requests formutual legal assistance. Consideration is currentlybeing given to developing a system for automatictranslation of these requests, at first into the majorEuropean languages, and ultimately into the overtwenty languages used in the EU.

Liaison magistratesThe concept of the liaison magistrate is based onthe positive experiences with the growing networkof liaison officers used to promote cooperationamong law enforcement agencies. In lawenforcement, the liaison officer uses direct contactsto facilitate and expedite the international collectionand exchange of information, in particularinformation of a strategic nature.12

The liaison magistrate is an official with specialexpertise in judicial co-operation who has beenposted in another State, on the basis of bilateral ormultilateral arrangements, in order to increase thespeed and effectiveness of judicial cooperation andfacilitate better mutual understanding between thelegal and judicial systems of the States in question.13

The liaison magistrate does not have anyextraterritorial powers, and also otherwise must fullyrespect the sovereignty and territorial integrity ofthe host State.14

Liaison magistrates are — so far — used almostsolely by the European Union countries. In general,liaison magistrates are sent to countries with whichthere is a high number of requests for mutualassistance, and where differences in legal systemshave caused delays. France has been the most activein sending out liaison magistrates, and has sent themnot only to the Czech Republic, Germany, Italy, theNetherlands, Spain and the United Kingdom, butalso outside the European Union, for example tothe United States.

Liaison magistrates work on the general level (bypromoting the exchange of information and statisticsand seeking to identify problems and possiblesolutions) and on the individual level (by giving legaland practical advice to authorities of their own Stateand of the host State on how requests for mutualassistance should best be formulated in order toensure a timely and proper response, and by tryingto identify contact persons who might help inexpediting matters). The exact profile of the workof the liaison magistrate varies, depending on suchfactors as the types of cases, and the extent to whichthere are direct contacts between the judicialauthorities of the two States.

The advantages, from the point of view of thesending State and the host State, are numerous.Language problems are reduced, requests for judicialco-operation can be discussed already before theyare sent in order to identify and avert possible

12 The Treaty of Amsterdam of the European Union (article 30(2)(d)) called on the European Council to “promote liaison arrangementsbetween prosecuting / investigating officials specialising in the fight against organised crime in close cooperation with Europol”. In orderto create a basis for the development of this work, on 22 April 1996 the European Council adopted a Joint Action on a framework for theex-change of liaison magistrates to improve judicial cooperation.13 A related concept is that of the legal attaché, who is posted in the mission of the sending State to look after legal issues in general thatconcern the host State and the sending State. Reference can also be made to temporary exchanges of personnel, which are designed toincrease familiarity with one another’s legal system and foster direct, informal contacts. Neither legal attachés nor personnel on temporaryexchange, however, have the same expertise and job profile as the liaison magistrate.14 See, for example, P.B. Heymann, Two Models of National Attitudes Towards International Co-operation in Law Enforcement, HarvardInternational Law Journal, vol. 31, p. 99, and Alastair Browne, Towards a Prosecutorial Model for Mutual Assistance in Criminal Matters?,in Peter J. Cullen and William C. Gillmore (eds.), Crime sans Frontieres: International and European Legal Approaches, Hume Papers onPublic Policy, vol. 6, nos. 1 and 2, Edinburgh University Press, Edinburgh 1998.


problems, and there is a basis for promoting trustand confidence in one another’s legal system.

Eurojust: A formal structure for prosecutorialcoordinationEven the direct contacts and expertise provided bythe EJN and the liaison magistrates cannot alwaysprovide the type of coordination needed ininvestigating transnational organized crime. Overrecent years, the idea gradually evolved of settingup a separate entity, somewhat comparable toEuropol in the law enforcement field, to coordinatenational prosecuting authorities and supportinvestigations of serious organised crime extendinginto two or more Member States.15

The idea for the establishment of such an entityreceived a considerable push at the special EuropeanUnion Council held in Tampere, Finland in October1999. A temporary unit, called “Pro Eurojust” (shortfor “Provisional Eurojust”) started work in Brusselsin March 2001, and Eurojust itself began its workone year later. As of 1 January 2003, it has beenlocated in The Hague, near its police “cousin”,Europol.

Each Member State has sent a senior prosecutor ormagistrate on permanent assignment to Eurojust.These representatives work in The Hague and meetevery week to discuss both individual cases andgeneral policy for coordinating investigations.Plenary meetings tend to be devoted to policy issues,adopting administrative decisions and on reportingon new cases, while most cases will be dealt with insmaller meetings, among representatives of only theindividual countries involved. However, the Collegeof Eurojust has used its powers to recommendcentralisation of prosecutions in two cases during2005, one involving the so-called Prestige case withmore than 3000 victims. Its recommendations werefollowed.

Eurojust itself does not have any operational powers.Instead, the national representatives, having agreedon what needs to be done, contact the competentauthorities in their own Member State for therequired action. In addition, individual members of

Eurojust may have operational powers according totheir national legislation. One of the topics nowbeing debated is what type of operational powersEurojust itself should be given in the future. Oneexample is that Eurojust might be empowered toask a Member State to initiate criminal proceedingsor to decide on where prosecution should take placein cases of conflicts of jurisdiction.

3.4. Judicial cooperation

The global status quo:Mutual legal assistance and extradition are basedon an incomplete patchwork of bilateral treaties and,in rare cases, multilateral treaties. These treaties tendto cover only some offences, and offer only limitedmeasures. Requests must be sent through a centralauthority. The procedure tends to be slow anduncertain, with requests often being frustrated bybureaucratic inertia, broad grounds for refusal, anddifferences in criminal and procedural law.

The European Union reality:· all European Union Member States areparties to broad multilateral treaties onmutual legal assistance and extradition.· the European Union has agreed onstandards of good practice in mutual legalassistance, and regularly reviewscompliance with these standards.· separate European Union treaties onmutual legal assistance and on extradition(replaced by the EAW) have been draftedin order to up-date and supplement theexisting multilateral treaties preparedwithin the framework of the Council ofEurope.· the European Union has begun movingtowards a system of mutual recognitionof decisions and judgments in criminalmatters. Such mutual recognition speedsup cooperation considerably: a judicialdecision or judgment issued in anyMember State can be enforced as such inany other Member State.

15 See Hans G. Nilsson, Eurojust – the Beginning or the End of the European Public Prosecutor? in Europarättslig Tidskrift, vol. 4, 2000.


· the first steps in mutual recognition havebeen taken with the adoption of theframework decisions on, respectively, theEU arrest warrant, the freezing of propertyand evidence, and the enforcement offines.· a mutual evaluation system has beenestablished, in which experts fromdifferent countries assess the practicalconduct of international cooperation inthe target country.

Mutual legal assistanceThe Member States of the European Union are allparties to the 1959 Council of Europe Conventionon Mutual Assistance in Criminal Matters.

The 1959 Convention, however, was drafted almosta half century ago. Since then, ideas regarding howmutual assistance should be provided have changedconsiderably, especially in Europe, where there hasbeen extensive experience in this sector. There hasbeen a clear trend towards simplifying and speedingup mutual assistance by eliminating conditions andgrounds for refusals. Since the European UnionMember States have a lot of cases in common, theyhave come to expect certain standards of conduct –after all, if the central authority of one country isitself slow or sloppy in responding to requests, itcan scarcely expect others to be better whenresponding to its requests for assistance.

In 1998, the European Union adopted a set ofstandards on good practice in mutual legalassistance.16 Each Member State prepared a nationalstatement of good practice. These were thencirculated among all the Member States. The ideahere was that the Member States publicly committhemselves to upholding these standards, and canbe held accountable.

The set of standards includes for example thefollowing points:

(a) acknowledging all urgent requestsand written enquiries unless a substantivereply is sent quickly;

(b) when acknowledging requests andinquiries, providing the name and contactdetails of the authority (and, if possible,the person) responsible for executing therequest;(c) giving priority to requests whichhave been marked “urgent”;(d) where the assistance requestedcannot be provided in whole or in part,providing an explanation and, wherepossible, offering to discuss how thedifficulties might be overcome;(e) where it appears that the assistancecannot fully be provided within anydeadline set, and this will impairproceedings in the requesting State,advising the requesting State of this;(f) submitting requests as soon as theprecise assistance that is needed has beenidentified, and explaining the reasons formarking a request as “urgent” or in settinga deadline;(g) ensuring that requests aresubmitted in compliance with the relevanttreaty or arrangements; and(h) when submitting requests,providing the requested authorities withthe name and contact details of theauthority (and, if possible, the person)responsible for issuing the request.

Although some of these points may seem trivial andmundane, they all have an immediate impact on theday-to-day work of judicial authorities involved ininternational cases.

The European Union countries have prepared theirown Mutual Assistance Convention (adopted on 29May 2000). This is not intended to be an independenttreaty, but instead supplements the 1959 Council ofEurope convention and its protocol. It brings theseearlier treaties up to date by reflecting not only theemergence of the “good practice” referred to above,but also the development of investigative techniquesand arrangements.

16 Joint Action of 29 June 1998 on good practice in mutual legal assistance in criminal matters.


For example, the new European Union Conventionincludes provisions that deal with:

- the sending of procedural documentsdirectly to the recipient in another State(article 5);- the sending of requests by telefax and e-mail (article 6);- the spontaneous exchange of information(article 7);- restitution of property to its rightfulowner (article 8);- temporary transfer of persons held incustody for purposes of investigation(article 9);- hearing by videoconference (article 10);- hearing of witnesses and experts bytelephone conference (article 11);- the use of controlled deliveries (article12);- the use of joint investigative teams(article 13);- the use of covert investigations (article14);- interception of telecommunications(articles 17 to 22); and- the protection of personal data providedin response to a request (article 23).

In particular the provisions on the interception oftelecommunications are quite lengthy, and were thesubject of extensive debate. Different Member Stateshave different provisions on the conditions underwhich the interception of telecommunications isallowed. However, given the ease with which peoplecan now move from one country in the EuropeanUnion to another, and given also the ease with whichcommunications can be traced and listened to, thispresumably will become an increasingly importantissue, and the time spent on it was undoubtedly wellspent. The basic solution in this respect was to allowinterception, but to keep the authorities in thecountries in question informed.

The Convention brings in some other innovations.Perhaps the most interesting one is that it reversesone fundamental principle in mutual legal assistance.Today, the almost universal rule is that the law

applicable to the execution of the request is that ofthe requested State. The new Convention providesthat the requested State must comply with theformalities and procedures expressly indicated bythe requesting Member State. The requestedMember State may refuse to do so only if compliancewould be contrary to the fundamental principles oflaw of the requested State.

ExtraditionPrior to 2004, extradition among the Member Statesof the European Union was based largely on the 1957Council of Europe Convention on Extradition. (Inaddition, the five Nordic countries of Denmark,Finland, Iceland, Norway and Sweden have agreedamong themselves on identical legislation thatgreatly simplifies extradition among these countries.The Benelux countries had a separate Treaty from1962.)

Also here, the Member States of the European Unionhad sought to supplement the Council of EuropeConvention by drafting new treaty obligations. In1995, the European Union adopted a Conventionon simplified extradition within the EU. Essentially,the Convention focuses on the many cases wherethe person in question consents to extradition. Oneyear later, in 1996, the European Union adopted aConvention on the substantive requirements forextradition within the European Union.

In October 1999, the European Union agreed on theimportance of mutual recognition of decisions andjudgments which, in its view, “should become thecornerstone of judicial co-operation in both civil andcriminal matters within the Union.” The argumentwas that already today, the Member States of theEuropean Union share fundamental values and legalprinciples. The authorities of a Member State shouldhave full faith and confidence in the operation ofthe legal system of the other states. Accordingly, itshould be made possible for a decision or judgmenthanded down in one Member State to beimmediately enforced as such in any of the otherstates.

The European Union further identified two priorityareas in criminal law where the principle of mutualrecognition should be applied, “fast track


extradition” and pre-trial orders, in particular thosewhich would enable competent authorities quicklyto secure evidence and to seize assets which areeasily movable.

Work proceeded slowly. For a time, it seemed as ifwork on mutual recognition would be buried by themany legal, technical and practical problemsinvolved. The terrorist attacks on 11 September 2001changed the situation dramatically, in that theEuropean Union decided that the draft “EU arrestwarrant” and a second draft decision on the freezingof property and evidence should be completed byDecember 2001. This political imperativegalvanized those officials responsible for hammeringout the details and reaching the necessarycompromises. Agreement on the EU arrest warrantwas indeed reached in December 2001; agreementon the second decision came a few months later.

Prior to 9/11, work on the EU arrest warrant hadbeen slowed by the fact that it represented aparadigm shift in extradition. Simply put, the newdecision (which entered into force on 1 January2004) replaces extradition among the EU MemberStates with a new system, whereby suspects andconvicted offenders are “surrendered” to therequesting state. The process no longer needs to gothrough the central authorities but has become purelyjudicial. An arrest warrant issued by a court in onestate will be recognized as valid throughout the EU,and is to be enforced by any and all national courts.As a result, the terminology has changed: there areno more requesting or requested States but “issuing”and “executing” States. Moreover, the frameworkdecision also imposes a deadline of 60 days withinwhich an EAW must be decided (which may beextended exceptionally by another 30 days) and adeadline of 10 days for the actual surrender.

A European arrest warrant may be issued for offencespunishable under the law of the issuing MemberState by a custodial sentence or a detention orderfor a maximum period of at least twelve months or,where a sentence has been passed or a detentionorder has been made, for at least four months. Thedecision lists thirty-two offences which are outsidethe scope of the condition of double criminality.

Thus, for these offences, the requested State cannotrefuse to extradite on the grounds that it does notregard the act in question as a criminal offence. Thislist may be expanded along with the passage of time.For all other offences, the requested State may refusesurrender on the grounds of the absence of doublecriminality.

The requested person has the right to be informedof the EU arrest warrant, of it contents and of thepossibility of expediting the procedure by consentingto it. He or she has the right to legal counsel and, ifneeded, an interpreter. If the requested person doesnot consent to the surrender, he or she has the rightto be heard by the judicial authority in the requestedstate. It should be noted that this hearing onlyconcerns the legality of the surrender. Any defenceagainst the actual charges on which the person iswanted is to be made before the court in the issuingstate.

A person surrendered from one EU Member State(A) to another (B) may be surrendered on to a thirdEU Member State (C). The consent of state A is notrequired if the requested person agrees to thesurrender, or if the rule of speciality referred to abovewould not apply mutatis mutandis. In other cases,the consent of state A is required. Obtaining thisconsent follows more or less the same procedure aswith the original surrender from A to B; for example,the same grounds for refusal apply.

If the surrender is to be made outside of the EU, theconsent of state A is always required. This consent,in turn, is governed by the laws and agreements bywhich state A is bound. Thus, for example if a personis surrendered from France to the United Kingdom,and the United States requests the extradition of thisperson directly from the United Kingdom, theconsent of France will depend on her national lawand on the agreements existing between France andthe United States.

The decision on the EU arrest warrant has broughtabout a significant change in both extradition lawand practice. It closely resembles the “fast-trackextradition” process that had been used betweenIreland and the United Kingdom, and (in anexperimental manner) between Italy and Spain. It


has considerable potential for speeding up theprocess, in particular since it will eliminate or reducea number of traditional grounds for refusal. Datafor 2005 suggest that the average time from requestto extradition / surrender has in fact been cut fromabout nine months to less than two months. At least1500 persons were surrendered in the EU during2005 (statistics are still lacking from some MemberStates).

As with all major changes, the EU arrest warranthas also given rise to various concerns. Some personsare concerned that it may in practice hamper therights of the defence, since when a person is takeninto custody for surrender, he or she can contest onlythe surrender in the requested state. Any pleas againstthe actual charges would have to be presented in aforeign court. Other persons are concerned that theextensive curtailment of the condition of doublecriminality will lead to cases where a person mustbe surrendered to another Member State even if theact in question would not have been an offence ifcommitted in the requested state. (However, in thisrespect the decision is subject to a limited principleof territoriality.) Yet other persons have noted thatthe relatively short time limits set down in thedecision may prove quite difficult to observe inpractice. This concern is associated with the factthat the decisions will now be made by individualcourts, and not by the central authority. Clearly, alot of work has been needed to inform judges andcourt personnel on how the process should be putinto place.

Perhaps the greatest cause for concern is that thedecision was pushed through the drafting process inrecord time, to meet political imperatives in the wakeof the terrorist attacks in the United States. Usually,drafting work of this nature can extend over severalyears, allowing for example for extensiveconsultation with national Parliaments, and for fairlyleisurely reflection in each of the Member States onwhat the implications of various options would be.Short-circuiting this process of consultation and

reflection may, conceivably, have led to a decisionthat will lead to considerable difficulties in practice.(In fact, in at least Germany, Poland and Cyprus,the national laws that put the EU arrest warrant intoeffect met with serious constitutional challenges.)Once sufficient experience has been gained with theEU arrest warrant, more drafting work may proveto be needed to smooth out the rough edges.

Mutual recognition of decisions and judgmentsAs was noted above in connection with thepresentation of the EU arrest warrant, mutualrecognition of decisions and judgments hastraditionally been almost non-existent ininternational cooperation. Because of jurisdictionallimits (and undoubtedly also because of a deep-rooted lack of confidence in the criminal justicesystems of other countries), the almost iron-clad ruleis that court decisions and judgments cannot bedirectly enforced abroad. For example, if a court inone country orders that a suspect be arrested, thathis or her assets be frozen, or that his or her housebe searched for evidence, the authorities of thatcountry have to use mutual legal assistance in orderto request that the decision be carried out abroad.The process inevitably takes some time – time duringwhich the suspect can empty out his or her bankaccounts and move on to a third country, escapingthe administration of justice.

So far, relatively little attention has been paid torecognising the validity of a decision taken by aforeign authority or court, and enforcing it as such.This principle of mutual recognition would enablecompetent authorities to quickly secure evidence,seize assets and immobilize offenders. This would,of course, also be in the interests of the victim.17

There are few bilateral or multilateral treaties onthis topic. One of the few is the EuropeanConvention on the International Validity of CriminalJudgments, prepared within the framework of theCouncil of Europe in 1970. Even this treaty has very

17 Protecting the interests of the victim is one of the priorities of the European Union. On 15 March 2001, a framework decision wasadopted in order to ensure uniform minimum legal protections for victims in criminal proceedings. A Council Directive was adopted on24 April 2004 on unification of compensation to victims from the State.


few signatories, and even fewer ratifications.18

Indeed, even most EU Member States have notratified it, and so it has very little practicalimportance. Furthermore, the Convention onlyapplies to legally final judgments, and not forexample to decisions made in the course of aninvestigation.19

With the increasing integration of Europe, and asshown with the example of the EU arrest warrant,the EU Member States are now moving towardsmutual recognition of decisions and judgments. Itis widely regarded as an effective and indeed almostunavoidable tool in cooperation. Furthermore,proponents argue that the close ties among the EUcountries, and the fact that they are all signatoriesto the 1950 European Convention for the Protectionof Human Rights and Fundamental Freedoms, haslead to a situation in which all Member States shouldhave full faith and confidence in the operation ofthe criminal justice system in one another’s country.To give an example, if a judge in one country ordersthat a suspect should be arrested, courts in all otherEuropean Union countries should have confidencethat the decision was made according to law andwith due respect to human rights.20

In the view of the Tampere European Council inOctober 1999, mutual recognition should becomethe cornerstone of judicial co-operation in both civiland criminal matters within the European Union.

The EU arrest warrant, described above, is the primeexample that can be given of mutual recognition. Asecond framework decision was adopted soonafterwards (on 28 February 2002), on the mutualrecognition of decisions on the freezing of propertyand evidence. The framework decision makes itpossible, for example, for the decision of a court in

one Member State on the freezing of the accountsof a suspect to be enforced immediately in any andall of the other Member States. On 14 February 2005,a third framework decision on mutual recognitionwas adopted, this time on financial penalties. A fewdays later, on 24 February 2005, a fourth frameworkdecision was adopted, this time on confiscationorders.

Work in progress on judicial cooperationA fourth decision on mutual recognition is expectedbefore the end of 2006: on 1 June 2006, the Councilreached political agreement on what is known as a“European evidence warrant.” As soon as a fewnational Parliaments give their approval to thedecision, it will be formally adopted. On the basisof a European evidence warrant, a court can requestobjects, documents or data that are available in anyof the other Member States. (However, the EEWcannot at this stage be used to obtain for exampletestimony from a witness in another Member State.This and other issues will be dealt with in a secondnegotiation stage of the process.)

In November 2004, the heads of State of the EUcountries adopted an updated program on progressin justice and home affairs. In respect of mutualrecognition, they ordered that work should proceedon instruments related, respectively, to the gatheringand admissibility of evidence, conflicts ofjurisdiction and the ne bis in idem principle, and theexecution of final sentences of imprisonment orother (alternative) sanctions. In addition, work isunderway on an instrument dealing with pre-trialrelease and supervision of suspects, and on ensuringthat persons guilty of specific offences againstchildren are barred from jobs that would place themin contact with children.

20 As noted earlier, an analogy can be made with the “full faith and credit” doctrine contained in article IV, section 1 of the Constitution ofthe United States. According to this section, “Full faith and credit shall be given in each State to the public acts, records and judicial

18 Of the 25 EU Member States, only Austria, Cyprus, Denmark, Estonia, Latvia, Lithuania, the Netherlands, Spain and Sweden have ratifiedthe 1970 Convention as of August 2006. An additional seven EU countries have signed, but not yet ratified, the Convention.19 There is one further exception to the lack of mutual recognition internationally. The five Nordic countries (Denmark, Finland, Iceland,Norway and Sweden) recognize one another’s decisions and judgments, and refusals are almost unheard of. This system is based on thefact that the Nordic countries share very much the same legal system, and also otherwise have long-standing cooperation with oneanother.

proceedings of every other State.”


3.5. Mutual evaluations

Over the years, the Member States of the EuropeanUnion have made a number of commitments toimproving their response to organized crime, and toimproving international cooperation. Thesecommitments were undoubtedly made in good faith,and with all intention to implement them in full.However, the practical reality of investigation,prosecution and adjudication (for example, lack ofresources, and differences in priorities in differentsectors and on different levels) can mean that thework that is actually carried out remains at odds withthe commitments.

One way to identify what problems exist is to carryout expert reviews. The OECD has instituted asystem of mutual evaluation of Member States onmeasures taken to prevent and control moneylaundering. These evaluations are carried out byteams of experts from different countries who,because of their background, are able to talk ascolleagues with experts and practitioners in the targetcountry, ask the right questions and place the answersthat they are given into the proper context. Thisapproach has been deemed so successful that theEuropean Union has adopted it on a broader scale.Accordingly, on 5 December 1997 the EuropeanUnion decided to use this mutual evaluation to seehow the Member States implement theircommitments to respond to organized crime.

Following the OECD model, small internationalteams of experts visit the target country, interviewpractitioners, report on their assessment and makerecommendations. The assessment is confidential,21

and the target country is given many opportunitiesto respond to any criticism made.

So far, two rounds of evaluations have been carriedout in all Member States. The first round dealt withmutual legal assistance and urgent requests for thetracing and restraint of property, and the secondround dealt with law enforcement and its role in thefight against drug trafficking. A third round dealing

with the exchange of information inside and betweenMember States and with Europol, is nearingcompletion during the summer of 2006 and a fourthround on the EAW has begun in 2006.

The Member States have been quite satisfied withthe way in which the mutual evaluations have beencarried out. The process has not only contributed togreater understanding of the differences that existbetween the countries, but has also resulted in manychanges in law and practice.

In October 2002, the European Union adopted asimilar mutual evaluation mechanism to be used inrespect of anti-terrorism measures. This mechanismrelies primarily on written responses from theMember States to specific questions, to be followedup if necessary by on-site visits by experts.

At the end of June 2006, the Commission presenteda proposal for an evaluation mechanism that wouldapply far more broadly to the adoption of EUmeasures and their implementation on the nationallevel, not just in respect of organized crime, but inall other justice and home affairs sectors as well.The relation between the proposed mechanism andalready existing evaluation mechanisms – such asthe mutual evaluation mechanism just described –remains to be worked out.

3.6. Cooperation in the formulation ofdomestic law and policy

The global status quo:International cooperation on the formulation ofdomestic law and policy is almost entirely limitedto general provisions in bilateral and multilateraltreaties, and to even more general recommendations,resolutions and declarations.The European Union reality:

· the European Union has adopted bindingdecisions calling for criminalization of anumber of offences. The definitions aregenerally rather tightly drawn, and have

21 With the permission of the country in question, the report can be published. Indeed, so far all of the reports on mutual assistance havein fact been published. The second and the third round, on law enforcement issues, remain confidential because of the sensitivity of thesubjects.


forced countries to amend their legislationaccordingly.· the European Union has beguncooperation in the prevention of crime,including organized crime.· the European Union has adopted anumber of action plans and programs thathave had a clear effect on policy andpractice in all the Member States.· there are signs that the European Unionmay be moving towards “communitizing”criminal law, in other words to a situationwhere, instead of each individual MemberState determining the contents of itscriminal law and criminal procedure, thedecision is taken by all twenty-fiveMember States working together.

Criminal law and criminal procedureOn the global level, in the area of criminal law andcriminal procedure, very little internationalcooperation exists. Where it does exist, it primarilyconcerns the very few substantive provisions inbilateral and multilateral treaties, such as theminimum definitions of participation in a criminalorganization, corruption, money laundering andobstruction of justice in the United NationsConvention against Transnational Organized Crime.There are also a number of resolutions,recommendations and declarations regardingcriminal law and criminal justice, but these havetended to have little actual impact on law, practiceand policy.

This is not the case with the European Union, wherenot only is there extensive discussion about theharmonisation of both criminal and procedural law,but much has been done in practice.22 Among theissues that have already been dealt with are thefollowing (this list is not exhaustive):

Fraud and counterfeiting- fraud and other crimes against thefinancial interests of the Communities

(Convention of 26 July 1995, protocols of27 September 1996 and 19 June 1997)23

- fraud and counterfeiting of non-cashmeans of payment (framework decisionon 28 May 2001)- counterfeiting of the euro (frameworkdecisions on 29 May 2000, 6 December2001 and a Decision on 6 December 2001)

Drug trafficking- illicit cultivation and production of drugs(Council resolution of 22 November 1996)- “drug tourism” (Council resolution of 22November 1996)- sentencing for serious illicit drugtrafficking (Council resolution of 6December 1996)- drug addiction and drug trafficking (jointaction of 9 December 1996)24

- drug trafficking (framework decision on25 October 2004)

Trafficking in persons and related offences- trafficking in human beings and sexualexploitation of children (joint action of 21January 1997)- trafficking in human beings (frameworkdecision on 19 July 2002 and Directiveon 28 November 2002)- combating the sexual exploitation ofchildren and child pornography(framework decision of 22 December2003)- initiatives to combat trafficking in humanbeings, in particular women (Councilresolution of 20 October 2003)- combating illegal immigration (Councilrecommendation of 22 December 1995)

22 The EU debate on harmonisation is discussed in greater detail below, in section 4.23 In May 2001, the Commission proposed a Directive which would amalgamate the various Convention provisions relating to fraudagainst the financial interests of the EU. This proposal has not been followed through.24 A “joint action” has been replaced by framework decisions in the Amsterdam Treaty.


Corruption- corruption (Convention signed on 26May 1997)- corruption in the private sector (jointaction of 22 December 1998, andframework decision of 22 July 2003)

Other offences- racism and xenophobia (joint action of15 July 1996)- football hooliganism (Council resolutionof 28 May 1997)- money laundering (joint action of 3December 1998, framework decision 26June 2001)- arms trafficking (Councilrecommendation of 7 December 1998)- participation in a criminal organization(joint action of 21 December 1998;supplemented by a framework decision onwhich agreement was reached in April2006)- combating terrorism (frameworkdecision of 13 June 2002)- protection of the environment throughcriminal law (framework decision of 27January 2003)- attacks against information systems(framework decision on 24 February 2005- ship-source pollution (frameworkdecision on 12 July 2005 and Directiveon 7 September 2005)

Procedural issues- interception of telecommunications(Council resolution of 17 January 1995and Article 13 of the 2000 MLAConvention)- protection of witnesses in the fightagainst international organized crime(Council resolution of 23 November 1995)- individuals who cooperate with thejudicial process in the fight againstinternational organised crime (Councilresolution of 20 December 1996)

- cooperation between financialintelligence units (Decision on 17 October2000)- widening the scope of confiscation(framework decision on 24 February2005)- the investigation and prosecution ofgenocide, crimes against humanity andwar crimes (Council decision of 8 May2003)- treaties on extradition and mutual legalassistance with USA; treaties withNorway and Iceland on mutual legalassistance and on an arrest warrant- setting up of joint investigative teams(framework decision on 13 June 2002;Recommendation on a model agreementon 8 May 2003)- freezing orders (framework decision 22July 2003

Work in progressWith the current focus on mutual recognition in theEuropean Union, there are fewer initiatives onfurther harmonisation of criminal and procedurallaw. Work continues to be underway on the minimumprovisions on the constituent elements of offencesand penalties relating racism and xenophobia. Thisproject had ground to a halt during the spring of2003, largely over the concerns of some countriesover the freedom of speech. An attempt to resuscitatethe work was made at the beginning of 2005, butwith little more success. A new effort has beenlaunched during the spring of 2006.

The Commission has advanced various proposalsfor further harmonisation of substantive criminallaw, for example in respect of tax offences; violationof intellectual property rights; and the penalties forcounterfeiting offences. A considerable amount ofattention has also been focused on moneylaundering, and on the freezing of the assets ofoffenders. For example, a framework decision onmoney laundering and on the identification, tracing,freezing or seizure, and confiscation of theinstrumentalities and proceeds of crime was adoptedon 26 June 2001, and the Commission is preparing


a further proposal on cash payments and moneylaundering.

A major project has to do with the procedural rightsof suspects and defendants in criminal proceedings.Essentially, this project has sought to define whatthe minimum rights of the defence are. Thediscussions have revealed that, although all EUMember States are signatories to the EuropeanHuman Rights Convention, there are stillconsiderable areas of disagreement as to specificrights. As of the spring of 2006, the future of theproject is very much in doubt. A strong minority ofMember States has taken the view that the proposalwould not provide any added value, and indeed mayin time result in a weakening of some of the rightsof suspects and defendants.

The prevention of organized crimeOrganised crime, just as is the case with crime ingeneral, does not spread at random. It is often aplanned and deliberate activity. Accordingly, itdepends to a great deal on the presence of motivatedoffenders, on the existence of the opportunity forcrime, and on the orienta-tion of the work of thosewho try to prevent and respond to organised crime.In line with this so-called situational approach, theMember States are exploring ways to ensure thatthe commission of crime is made more difficult, thatcommitting crime involves greater risks to theoffender (in particular the risk of detection andapprehension), and that the possible benefits to theoffender of committing crime are decreased oreliminated.

Also the Tampere European Council stressed theimportance of crime prevention. It suggested thatcommon crime prevention priorities should bedeveloped and identified. Elements for an emergingcrime prevention policy are contained in the Councilresolution of 21 December 1998 on the preventionof organised crime. In March 2001, the Commissionand Europol presented a report on a Europeanstrategy on the prevention of organised crime.

One further step in developing and identifyingpriorities was made on 15 March 2001, when theEuropean Union decided on the establishment of acrime prevention network. This network consists ofcontact points in each Member State, representingnot only the authorities but also civil society, thebusiness community and researchers. The networkfunctions by organizing meetings, compiling adatabase and otherwise by seeking to gather andanalyse data on effective crime prevention measureson the local and regional level in order to disseminateinformation on “good practices.” At the summit heldin November 2004, the heads of State agreed thatthe European Crime Prevention Network should befurther strengthened and professionalised.

European Union policies and programsOn 16-17 June 1997, the European Union adopteda Plan of Action to combat organised crime. Insteadof the resolutions, recommendations anddeclarations that have so often been adopted in otherfora - regrettably often with little practical impact -the European Union decided, for the first timeanywhere, on specific action, with a clear divisionof responsibilities, a clear timetable and amechanism for implementing the action plan. Thestrong consensus reached by Member States on the1997 Plan of Action helped to create the politicaland professional climate required on both the EUlevel and the national level to take and implementthe necessary decisions.

The 1997 Plan of Action changed the rate of theevolution of international cooperation againstorganized crime. Examples of the progress that hasbeen achieved are the mutual evaluation mechanism,the entry into force of the Europol Convention, theestablishment of the European Judicial Network,criminalization of participation in a criminalorganisation, the establishment of a variety of fundsto support specific measures, the adoption of jointactions on money laundering, asset tracing, and goodpractices in mutual assistance, the pre-accession pactwith the candidate countries, and the identificationof further measures in respect of the prevention oforganised crime.


The period allotted for the 1997 Plan of Action endedon 31 December 1999. A follow-up plan was adoptedin March 2000.25 Specific forms of crime that arethe focus include economic crime, money launderingand off-shore centres, terrorism, computer crime,and urban crime and youth crime.

At the same time, broader strategies for dealing withjustice and home affairs were being developed.When Finland held the Presidency of the EuropeanUnion during the second half of 1999, the TampereEuropean Council (15-16 October 1999), adopted aset of priorities not only in the response to cross-border crime, but also in respect of migration andasylum issues.

Five years down the road, these various priorities –known in the European Union as the “Tamperemilestones” – have been replaced by an updated andquite ambitious program adopted by the heads ofState in November 2004.

Among the points stressed in the November 2004program are the following:

· the sharing of information among lawenforcement and judicial authorities(while maintaining the proper balancebetween privacy and security);· establishment of a coherent overallapproach to combat terrorism;· strengthening the prevention of organisedcrime;· strengthening the tools to address thefinancial aspects of organised crime;· improving general crime prevention;· creating a “European judicial culture”;and· promoting the principle of mutualrecognition of judicial decisions.

At the time of this writing, August 2006, Finlandagain holds the Presidency, and is working closelytogether with the Commission in preparing a reviewof the implementation of the Hague Programme. At

the end of June 2006, the Commission issued a“Scoreboard Plus” report on implementation, as wellas proposals for how implementation can be mademore effective in key areas of the Hague Programme.The goal is the identification of which priority areasin the Hague Programme are particularly behind interms of implementation, and therefore require anadded political push by the European Council.

Cooperation with candidate countries and otherthird countriesEven if all the European Union Member States couldeffectively develop their laws and systems to preventand control organized crime within their borders,this would not be enough. Preventing and controllingorganised crime requires broader, global co-operation.

One particular focus within the EU is cooperationwith the so-called candidate countries. For severalyears in advance of the mammoth enlargement ofthe European Union in May 2004, the EU negotiatedactively with the then ten “candidate countries.” Theinfusion of extensive technical assistance andmillions of euros, combined with the strong politicalpressure exerted from within and from without thesecountries, resulted in the ten countries being able tocarry out an extensive reform process in aremarkably short time.

This same process is now underway with Bulgariaand Romania (both seeking to join the EU in 2007)as well as Croatia, FYROM (Macedonia) andTurkey. Other countries, including Albania, Bosnia-Herzegovina and Serbia, have already indicated theirinterest in becoming members, and may thus soonbe brought within the scope of this cooperation.

In this process, considerable attention is being paidto the prevention and control of organized crime.The European Union has already adopted a largenumber of measures (referred to as the acquiscommunautaire), and the Member States haveimplemented them in their domestic legislation andpractice. In order to avoid a situation where

25 The new plan of action is known as “The Prevention and Control of Organised Crime: A European Union Strategy for the beginning ofthe new Millennium.”


organized criminal groups take advantage of asudden expansion of the European Union, also thecandidate countries must fully accept and implementthe acquis.

A second focus for the EU is the Russian Federation.In 1999, a special European Union Action Plan wasprepared on common action with the RussianFederation on combating organized crime. This inessence sets up a structure and process forcontinuous consultations and cooperation betweenthe European Union and the Russian Federation. Inaddition, there is a broader “partnership” agreementwith the Russian Federation (and with Ukraine) thatprovides a basis for cooperation and a broadagreement to set up a “common space” betweenRussia and the EU.

Other geographical areas with which the EuropeanUnion is seeking to strengthen co-operation includethe Mediterranean, South Eastern Europe, China,North America, Latin America and the Caribbean.In December 2005, the Council decided to take amore proactive approach to its external relations injustice and home affairs. The decision identified anumber of ways in which the EU would work withpartners on a range of issues. At the same time, itwas decided that the EU should from time to timefocus on certain regions and certain issues. To startwith, these points of focus would includeAfghanistan and drugs, the Western Balkans andorganized crime, Northern Africa and illegalimmigration, and Northern Africa and counter-terrorism. Russia is also to be given a special focusin this manner.

Following the terrorist attacks of 9/11, the UnitedStates (and the response to the threat of terrorism)understandably enough became a top priority. Thiscould be seen in the broad range of co-operativemeasures put into place, ranging from cooperationbetween the US authorities and Europol, to the veryrapid negotiation of agreements on extradition andmutual legal assistance between the EU and the US.These agreements were significant in severalrespects. They were specifically between the UnitedStates and the European Union, and not betweenthe United States and the (then) fifteen Member

States of the EU. To a large extent, they brought upto date the bilateral agreements that the US had withthe European countries.

The European Union is also active in workingthrough intergovernmental organizations such as theCouncil of Europe and the United Nations. Forexample, throughout the negotiations on the UnitedNations Convention against TransnationalOrganized Crime and on the United NationsConvention on Corruption, the European Unioncountries worked very closely together in seekingto ensure that the resulting Convention was aseffective and broad as possible.

4. The second claim: “EuropeanUnion cooperation in criminal justiceis an attempt to create a unifiedcriminal justice system, with its owncriminal and procedural law”

The concepts of harmonisation andapproximationThe question of how far the criminal law andprocedural law of the Member States of the EuropeanUnion should be harmonised has long been a subjectof considerable controversy. Everyone appears toagree that some degree of harmonisation is necessaryin order to ensure smooth international cooperation,as long as by “harmonisation” one means theapproximation or co-ordination of different legalprovisions or systems by eliminating majordifferences and creating minimum requirements orstandards. To use a musical analogy, each MemberState can continue to play its own national music,as long as it is in harmony with the music of theother twenty-four Member States, and meets acertain standard of quality.

Everyone also appears to agree that, at least at thisstage, we are not talking about the unification ofcriminal and procedural law within the EuropeanUnion, in the sense that the twenty-five distinct legalsystems would be replaced by one system. To usethe musical analogy, no one supports the idea of


replacing the orchestra with a single synthesizer, nomatter how technically advanced.

A number of arguments can be presented in supportof the harmonisation or approximation of Europeancriminal and procedural law. All of Europe can besaid to share cultural values to the extent that thedifferent countries can and should share the samelaws. The approximation of laws would simplify theapplication of law, since more or less the same lawswould apply throughout the European Union. Thiswould reduce the number of cases (usuallyadmittedly marginal, but at times serious) where oneMember State refuses to extradite or provide mutuallegal assistance to another Member State, on thegrounds of the absence of double criminality.26 Theapproximation of laws would also encourage all theMember States of the EU to assign more or less thesame priority to the detection and prosecution ofdifferent offences, thus decreasing the risk of asituation where one country does not takesufficiently vigorous steps to detect and prosecute(for example) fraud against the European Union.

Furthermore, if all countries would apply more orless the same criminal and procedural laws, thiswould help in fostering mutual trust and cooperationamong courts and other judicial authorities, thusstrengthening the basis for the mutual recognitionof judgments and other judicial decisions.

At the very least, according to this line of argument,the Member States should be able to agree on thecriminalisation at least of the most serious offences(even if the precise definitions vary from one countryto the next). And surely with the European HumanRights Convention in force throughout Europe, theMember States should be able to agree on the coreof protections under procedural law: the inviolabilityof the person, the protection against self-incrimination, the right to be informed of the chargesagainst oneself, the right to a proper defence, and so

on (even if the way in which these rights are ensuredvaries from one country to the next).

Those who criticize efforts at approximation withinthe European Union are often answered that theyare fighting a paper tiger. According to this line ofresponse, no one is seeking full harmonisation ofcriminal and procedural law. Instead, only a basiclevel of harmonisation is sought for two mainpurposes: in order to ensure that all Member Statescriminalize the more serious offences (in particular,serious cross-border offences), and in order tosupport mutual recognition of judgments. Here, ananalogy can be made with the United States, wherethere is both federal and state legislation. Criminallaw on the federal level focuses on activity that hascross-border implications. Each state can and doeslegislate on other criminal acts.

Proposals to increase the extent of approximationThe Tampere programme adopted in 1999 wasrelatively clear in stating that mutual recognition isthe cornerstone of judicial cooperation (in bothcriminal and civil matters). However, the Tampereprogramme also refers to “the necessaryapproximation of legislation” (paragraph 37).27

What is “necessary” appears to be a matter ofdispute.

This dispute has been evident for almost the entireperiod that the EU has been cooperating in justiceand home affairs. The dispute has been perhaps themost heated in connection with the need to protectthe financial interests of the European Union, forexample against subsidy fraud, embezzlement andcorruption. In 1997, a group of experts presentedthe results of the so-called “Corpus Juris” project.28

Briefly, they proposed not only harmonisation of thedefinition of offences against the financial interestsof the European Union, but also the establishmentof a European Public Prosecutor system, usingidentical procedural law provisions in each MemberState. What they proposed was, essentially, the

26 The requirement of double criminality is strongly entrenched in international cooperation in criminal matters. In essence, it means thatcountry A will not provide assistance or extradite a suspect to country B for an offence, unless this is an offence also in country A.27 Along much the same lines, the Hague programme (which followed the Tampere programme) states that the approximation of substantivecriminal law facilitates mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal mattershaving a cross-border dimension (section 3.3.2.).28 See http://www.law.uu.nl/wiarda/corpus/engelsdx.html. The project was first presented on 17-18 April 1997.


creation of a European criminal and procedural law:the European Public Prosecutor would apply exactlythe same criminal law, following exactly the sameprocedure, no matter whether he or she waspreparing a prosecution in Ireland or Italy, in Spainor Sweden.

Proponents have said that this degree of uniformityis necessary in order to prevent organized criminalgroups from utilising differences between theMember States. Critics, in turn, see this as the firststep on the road to a very extensive Europeancriminal and procedural law, distinct from thenational criminal and procedural laws.

The Corpus Juris project did not lead to legislativeaction. The Commission returned to the matter byissuing a “Green Paper” on the proposal for aEuropean Public Prosecutor.

The disagreement emerged once again when the newConstitutional Treaty was being drafted in 2002 and2003. The critics of harmonisation succeeded inpreventing language that would have specificallycalled for the creation of a European PublicProsecutor, but the proponents succeeded in gettingat least a reference to it in the Constitution, as anidea that is to be reconsidered when theConstitutional Treaty enters into force.

The impact of changes in EU decision-making 1:decision C-176/03The European Public Prosecutor project raisesbroader issues of how far the approximation ofcriminal and procedural law can go, and who canmake the decisions. Questions of criminal law haveso far always been reserved to the Member Statesthemselves to decide, on the basis of consensus.Article 34 of the Treaty of Amsterdam gave theCommission a right of initiative in these matters andArticle 31 (e) specified that initiatives onapproximation could include organised crime,terrorism and organised crime. Article 47 of theTreaty provides that the first pillar takes precedenceover the third pillar. The exact implication of article47, however, has been questioned. Most MemberStates have been of the view that the Commission is

limited to the right of initiative and that theCommunity may not adopt decisions on criminallaw, and only the Member States themselves maymake any decision on criminalization. However, aminority – and the Commission – have been of theview that article 47 in effect gives the Communitythe right to oblige Member States to adoptcriminalisations on certain issues, if criminal lawsanctions are the only way to protect coreCommunity interests.

For several years, an uneasy working compromisehad been used: decisions under article 31(e) weremade in tandem, with the Community takingdecisions on matters within its power, and theMember States (through the Council) takingdecisions at the same time on matters that theydeemed within their powers.29

The basis for this working compromise came to ajolting end on 13 September 2005, when theEuropean Court of Justice issued a long-awaitedruling. On 19 December 2002, the Council hadadopted a framework decision on the protection ofthe environment through criminal law. TheCommission has argued that the Council had no rightto take such a decision, since environmental mattersclearly belong under the first pillar, where theCommission has the sole right of initiative and theCommunity (through the Council) ( together withParliament) has the right of decision. The Council,in turn, unanimously decided that criminal lawmatters – even when related to what would otherwisebe a first pillar matter – belong under the third pillarand are thus in the competence solely of the Council.When the Council took this decision, theCommission brought the case to the European Courtof Justice.

In its decision C-176/03, the European Courtessentially ruled that under certain conditions,provisions relevant to the protection of theenvironment through criminal law could and indeedshould be taken under the first pillar. The reasoningof the Court, however, was narrow enough to leadto considerable disagreement between theCommission and the Council as to what, exactly,

29 To complicate measures, the Constitutional Treaty – when and if it enters into force – gives the Commission greater powers of initiative,and in practice puts an end to the requirement that Council decisions on home and justice affairs must always be made by consensus.


the Court had decided. While there was agreementthat the original framework decision on theprotection of the environment through criminal lawhad to be revisited, there was no agreement as towhether this was true of Council decisions taken inother areas. Apparently, conclusions will have toawait further decisions of the Court on parallel cases.

In the mean time, the Commission has identified anumber of decisions given in the third pillar whichin its view should have been given in the first pillar.It is currently preparing the corresponding proposals.It has already amended its proposal, at the time underconsideration by the Council, for a first pillardirective and a third pillar framework decision onthe protection of industrial property rights, andreplaced it with a proposal for a first pillar directive.

The impact of changes in EU decision-making 2:difficulties in negotiation and implementationAt present, the debate between the proponents andcritics of far-reaching harmonisation has entered intoa new stage. This is only partly a result of theEuropean Court decision referred to above, adecision which appears to give the Commission –long a supporter of approximation in tandem withmutual recognition – more leverage in presentingnew proposals. Two other developments need to bementioned: the difficulties encountered innegotiating and implementing new decisions onmutual recognition, and a proposal to transfermatters from the third pillar to the first pillar.

Even though mutual recognition has been acceptedas the cornerstone of judicial cooperation, this doesnot mean that all Member States are as enthusiasticabout expanding the scope of mutual recognition. Ittook the horror of the terrorist attacks of 9/11 to getthe EU to agree on the very first decision on mutualrecognition, the EU arrest warrant. That decisionwas ultimately pushed through in three months, aremarkably short period – especially given the factthat the decision marked a shift in paradigm ininternational cooperation in criminal justice. Thenext decision, on the freezing of property andevidence, came soon afterwards.

Since then, however, the pace of negotiation appearsto have slowed down considerably, even though

several mutual recognition topics remained to bedealt with, among them the transfer of prisoners,community-based sanctions, pre-trial release and thesupervision of suspects, disqualifications and lossof rights, and the principle of ne bis in idem (doublejeopardy). Deadlines established in the HagueProgramme have not been met. For example, adecision concerning disqualifications (in particularin connection with sexual offences against children)was to be taken by the end of 2005. However, thisproposal is still being negotiated, and quite possiblywill continue to be under negotiation for aconsiderable time to come.

Two factors in particular appear to have contributedto this appreciable slowing in the pace ofdevelopment, enlargement, and difficultiesencountered by some Member States in theimplementation of decisions.

On 1 May 2005, the European Union expanded bytaking in ten new Member States. These ten stateshad done considerable work to ensure that their lawand practice was in accord with the acquiscommunautaire. There thus should be no doubt asto the commitment of the new Member States tocontinue to work on priority issues.

Nonetheless, the expansion can be argued to havecomplicated negotiations over new instruments.From the simple logistical point of view, presentingand considering twenty-five positions takes moretime than presenting and considering fifteenpositions. Even more importantly, each of thetwenty-five has its own domestic legal andadministrative systems, laws, practice and interests,and this will be reflected in their approach to thenegotiations.

The second factor is difficulties in implementation.There has been increased external and internalcriticism of the way Member States haveimplemented EU decisions. The Commission hasbecome more rigorous in assessing the transpositionof EU instruments. For example, it has faulted theway in which several Member States haveimplemented the 2002 framework decision on theEuropean Arrest Warrant, by not bringing thedecision into force on time, by inappropriately


adding grounds for refusal, by turning facultativegrounds of refusal into absolute grounds for refusal,and so on. Domestically, the Constitutional Courtof Germany has struck down the German law bywhich the European Arrest Warrant was brought intoforce within Germany, on the grounds that the lawwas unconstitutional by requiring the surrender ofGerman nationals to other EU Member States unlesscertain conditions (allowed for by the frameworkdecision but not implemented by Germany) werefulfilled. Germany has since then amended its law.(Corresponding difficulties were encountered inPoland and Cyprus, which now have decided toamend their constitutions in conformity with theframework decision.)

Another example of difficulties in implementationis the framework decision on the freezing of propertyand evidence. The decision was to have beenimplemented in all Member States by August 2005.One year later, however, less than half of the MemberStates have in fact brought it into force.

As a result of these difficulties, the negotiators ofseveral Member States may well have become morecritical regarding how instruments are formulated.At times, it almost seems as if negotiators haveimplicit instructions not to allow any EU instrumentsthat would require extensive changes in law andpractice in one’s own country.

The impact of changes in EU decision-making 3:transfer from the third pillar to the first pillar?As noted above, a third development that has led toa new stage in the debate between the proponentsand critics of far-reaching harmonisation – alongsideof the European Court decision of 13 September2005, and the growing difficulties in developing newinstruments on mutual recognition – is a proposalto transfer matters from the third pillar to the firstpillar.

As described in section 2 above, decisions in thethird pillar are made by the twenty-five MemberStates acting together in Council, after consultingthe European Parliament and on the basis ofunanimity. If even one Member State disagrees, nodecision is possible. This has inevitably led in manycases to very convoluted and lengthy negotiations.

Certainly, if slow and careful work leads to decisionsthat are relatively easy to implement, have aminimum of unanticipated side-effects, and areeffective in achieving their goal, even lengthy timesspent in drafting could perhaps be acceptable.However, the demand for unanimity appears to beresulting in compromises which make the texts moredifficult to understand, with many exceptions, cross-references and the use of lengthy, technicalprovisions. Furthermore, the compromises tend tolower the level of ambition of the original proposal,leading to doubts as to whether the outcome will infact have “added value.”

The requirement that these decisions are to be madeby consensus was included in the Maastricht Treaty,which brought justice and home affairs into the scopeof the work of the European Union. The reason wasthat these issues can raise national sensibilities; afterall, they affect basic legal protections and basicvalues. However, when the Maastricht Treaty wasdrafted, the negotiators foresaw the possibility thatthe EU might at a later stage wish to review howdecisions are taken. For this reason, the Treatycontained a provision (now Article 42 of the Treatyon the European Union) that allows the EU to changethe way decisions are made. According to article42,

The Council, acting unanimously on theinitiative of the Commission or a MemberState, and after consulting the EuropeanParliament, may decide that action in areasreferred to in Article 29 shall fall underTitle IV of the Treaty establishing theEuropean Community, and at the sametime determine the relevant votingconditions relating to it. It shallrecommend the Member States to adoptthat decision in accordance with theirrespective constitutional requirements.

Translated into more understandable language, thisprovision means that the Council can decide thatsome or all matters involving cooperation in criminalmatters (including for example cooperation amongthe police, prosecutors and judicial authorities)would be transferred from the third pillar to the firstpillar. At the same time, the Council can decide thatdecisions would henceforth be made by qualified


majority. This transfer has several implications,among them a stronger role for the Commission intaking the initiative for new proposals, greaterinvolvement of the European Parliament in thenegotiation of proposals, and the elimination of therequirement of unanimity among the twenty-fiveMember States.

At the end of June 2006, at the same time as theCommission presented its “Scoreboard Plus” onprogress in justice and home affairs, the Commissionalso proposed that article 42 be applied. Finland, asthe holder of the Presidency of the EU during thesecond half of 2006, has taken up the proposaltogether with the Commission, and it will bediscussed throughout the remainder of the year. Boththe Commission and Finland argue that using article2006 will result in greater efficiency in decision-making, and – because of the stronger involvementof the European Parliament – remedy what has beencalled a “legitimacy deficit” (or “democracydeficit”).

More proposals for approximation?It is not clear how these three developments – theruling of the European Court of Justice on 13September 2005, the difficulties in the negotiationand implementation of decisions, and the proposalfor transfer of matters from the third pillar to thefirst pillar – may affect the debate on approximationin the European Union. The Commission and severalMember States have argued that one of theunderlying reasons for the difficulties in thenegotiation and implementation of mutualrecognition decisions is insufficient trust andconfidence in the criminal justice systems of otherMember States. If this trust and confidence can beincreased, negotiators (and courts) would be moreprepared to assume that judicial decisions taken inother Member States are based on due process. TheCommission and the Member States in questionfurther argue that one of the main ways of increasingtrust and confidence is to develop EU-wide rules onprocedural guarantees, and to approximatelegislation criminalizing the key types of offences.

Given this orientation, it is possible that theCommission will use the possibilities open to it topresent proposals along these lines. At the same time,

however, the decision to adopt each proposal willultimately rest with the Member States – either allof them together (on the basis of unanimity) or alarge majority (should the Council decide to use theArticle 42 procedure referred to above). As a result,it is likely that the scope of approximation willgradually expand, but its scope will tend to be largelylimited to those offences which often have cross-border effects (for example terrorism, various formsof organized crime, crimes over the Internet) or aredirected against core EU interests (in particular,offences directed against the financial interests ofthe EU). Since the vast majority of offences that arecommitted (such as property offences and violentoffences) usually do not have such effects, thenational criminal and procedural law of eachMember State will retain its own distinct elements.

5. The third claim: “European Unioncooperation in criminal justice isleading towards a more punitivecriminal policy”

In particular since the terrorist attacks of 11September 2001 (followed, in Europe, by the trainbombings in Madrid on 11 March 2004 and theunderground and bus bombings in London on 7 July2005), the European Union has undertaken a numberof measures designed to respond to the threat ofterrorism and organized crime. Suspects andconvicted offenders can now be extradited(surrendered) more quickly from one Member Stateto another, information is being collected on the timeand length of telephone calls and on who callswhom, the exchange of data between lawenforcement agencies is being simplified andexpedited, and so on.

Presumably there is wide-spread agreement thatthese, and similar, decisions are a necessary part ofthe unified response of the EU to terrorism andorganized crime. However, the way in which thedecisions were taken, and some of their contents,have given rise to concerns that EU cooperation incriminal justice stresses the law-and-order approachand is moving towards a more punitive criminal


policy. At the same time, according to theseconcerns, the EU is giving less attention to humanrights and constitutional protections. The argumentsgiven to back up these concerns tend to follow threedifferent lines:

- the decision-making process suffers froma “legitimacy deficit,” in that EU decisionson police cooperation and cooperation incriminal matters are prepared by civilservants and made by Ministers, withrelatively little input from the EuropeanParliament or, on the part of severalMember States, with relatively littleoversight by national Parliaments.Furthermore, the EU has set up a numberof institutions and networks (such asEuropol, Eurojust and the EuropeanJudicial Network) with partly overlappingmandates, lack of transparency andinsufficient respect for due process;- the topics of EU decisions themselvestend to focus excessively on law-and-orderthemes (as opposed to proceduralsafeguards), and the decisions themselvesdo not sufficiently take into considerationthe requirements of due process andconstitutional protections; andin the decision-making process, thecontents of decisions tend to follow theline of those Member States with a morepunitive criminal justice policy.

Does the EU third pillar suffer from a legitimacydeficit?The first argument takes the view that there is a“legitimacy deficit” in decision-making in the thirdpillar. It should be noted that there is no absolutemeasure of the legitimacy of local, national orinternational structures. However, the term impliesthat decision-making in the EU is not open, and thatthe EU has a tendency to emphasize efficiency ofcrime control at the expense of accountability.30

Is there, indeed, a “legitimacy deficit”? The issueneeds to be analysed on both the EU and the nationallevel, and in respect both of legislative functions(the Council on the EU level, and nationalParliaments) and executive / operational functions.

To turn first to the EU level and to legislativefunctions, it is undeniable that the EuropeanParliament has a considerably weaker role in thedrafting of decisions in the third pillar, as comparedto the first pillar.31 In the third pillar, the EuropeanParliament is consulted about proposals. The opinionof the European Parliament – usually in the form ofquite detailed proposals for amending the proposalin question – is then considered by the Council. Theexperience has been that relatively few amendmentsproposed by the European Parliament are accepted.

There may be various reasons why so few proposedamendments are accepted. One significant reasonis that the European Parliament has not had thepossibility of following the negotiations in theCouncil on the proposal, and thus is probably notaware of why certain formulations have beenpreferred over others. Quite often, the EuropeanParliament proposals reflect ideas that had alreadybeen considered – and rejected – in the Councilworking groups. A second factor is that the textprepared in the Council working groups hasbenefited from input from legal experts from alltwenty-five Member States, and thus (presumably)has been drafted so that it would fit in with the uniquefeatures of each of the criminal justice systems.Although the Members of the European Parliamentcan avail themselves of highly professional staffmembers, they do not necessarily have the sameworking knowledge of criminal law, criminalprocedure and the operation of the criminal justicesystem in each Member State. As a result, theEuropean Parliament may propose amendments that,while they might be appropriate in some MemberStates, may not have the same desired impact inothers.

30 For a discussion of the concept of “legitimacy deficit”, see Anthony Arnull and Daniel Wincott (eds.): Accountability and Legitimacyin the European Union. Oxford Studies in European law, 2003.31 This issue was mentioned above in section 4, where reference was made to the proposal of the Commission to apply Article 42 of the Treaty onthe European Union. This would lead to the shift of some or all of the contents of the third pillar to the first pillar. One of the results would be togive the European Parliament a much stronger role in the negotiation of new decisions on police cooperation and cooperation in criminal justice.


Another feature of decision-making on the EU levelis the almost total absence of direct input fromacademia and civil society. On the national level,various interest groups and experts are often heardin the course of the decision-making process. Thisis especially true of the drafting of legislation. Oncebills are introduced in Parliament, they generallybecome available to the public, and the public hasan opportunity to provide an input.

In the EU, most proposals are submitted by theCommission. When preparing proposals, theCommission often arranges for public hearings, thusproviding groups active in EU matters anopportunity to have their say. Once the proposalsare submitted to the Council, however, the processbecomes less transparent. Over the months and(often) years that the proposal works its way fromthe working group level up to the Council level(where the decision is formally approved), it is verydifficult for persons outside of Government to knowhow the proposal is evolving, much less whatreasons have been given for any changes made tothe text. EU working groups do not have the samepractice as many Parliamentary committees, ofholding public hearings on the proposals.

Even on the Council level, the debates have longbeen closed to the public. Only as recently as June2006 has the Council decided to increase thetransparency of its sessions by allowing web-castsof at least part of its deliberations.

As for the EU level and operational functions, theconcerns over a “legitimacy deficit” has to do withthe perception that several EU institutions andnetworks have been set up with partly overlappingmandates and with insufficient transparency. Theusual point of comparison is national institutions,which are generally subject to political and legaloversight by the Government, by Parliament, byombudsmen, and similar bodies.

In the justice and home affairs sector, the maininstitutions and networks in question are Europol,Eurojust, OLAF, the Police Chief Task Force, theJoint Situation Centre, Frontex, the European PoliceCollege, and the European Judicial Network.

Of these, the European Police College (which helpsMember States in the training of senior policeofficers) and the European Judicial Network (whichseeks to help practitioners identify how requests formutual legal assistance and extradition should beformulated) do not appear to have raised anyconcerns about “overlapping mandates and lack oftransparency.”

Two other institutions are quite new, and – perhapsin part because of their newness – have also notfigured in this third pillar debate: the Joint SituationCentre, and Frontex. The Joint Situation Centre(SitCen), although it began work soon after 9/11,did not begin to deal with internal security measuresuntil after the Madrid bombings in 2004. It providesthe Council with strategic intelligence-basedassessments on counter-terrorism matters. Frontex,in turn, was set up to coordinate the activities of thenational border guards. Its role in respect of the thirdpillar would thus relate primarily to helpingcoordinate the national response to such offencesas trafficking in persons, drug trafficking andsmuggling.

Concerns regarding “overlapping mandates and lackof transparency” would seem to concern primarilyEuropol, Eurojust, OLAF and the Police Chief TaskForce. Each has a relatively distinct mandate.Europol provides support for national lawenforcement agencies for example by facilitating theexchange of information between them, providingassistance in the analysis of intelligence, and helpingin the coordination of cross-border investigations.Eurojust, in turn, coordinates the work of nationalprosecuting authorities in the case of cross-borderinvestigations of serious organised crime. OLAF’smandate is focused on offences directed against thefinancial interests of the EU.

Each of these three has built-in accountabilitystructures, such as Europol’s Management Board,Eurojust’s Joint Supervisory Body and OLAF’sSupervisory Committee. OLAF, as noted, is part ofthe Commission. Both Europol and Eurojust reportto the Council.


The Police Chief Task Force, in turn, brings togethertop level law enforcement officials to exchangeexperience and information on cross-border crime,and to help in the planning of operational activities.Unlike the other three institutions, the PCTF doesnot have an explicit legal basis. Because it isdesigned to bring together top law enforcementofficials, it is perhaps best described as an informalnetwork. It meets twice a year, once in a plenarycomposition (in Brussels) and once for operationalplanning (at Europol in The Hague). And because itmeets so rarely, it has less impact than does Europolon day-to-day operational matters (which moreoverin any case remain the responsibility of national lawenforcement agencies).32

To turn to the national level and to the legislativefunction, the main question in respect of the“legitimacy deficit” is the extent to whichGovernments consult with their Parliament at thetime proposals are being negotiated in workinggroups in Brussels. Problems arise if little or noconsultation takes place, since once a frameworkdecision or a decision is adopted by the Council,the Government has taken on the politicalcommitment (indeed, one could say a legalcommitment, since framework decisions anddecisions are binding according to the Treaty) to“transpose” the framework decision into nationallaw and practice.

Each Member State has its own constitutional (andpolitical) arrangements for dealing with thisquestion. In the United Kingdom, for example, theresponsible Minister (usually the Home Secretary)is required to inform Parliament in a very short timeof the tabling of a proposal in Brussels, and mustsoon after report to Parliament on what position theGovernment takes on this proposal. Members ofParliament have the benefit of a staff that is quiteexperienced in EU matters, and who followdiscussions in the working groups quite closely.

Another example is Finland, where Parliament hasa special “Grand Committee” to follow EU matters.As in the UK, the Government in Finland must reportto Parliament on new proposals, and then on theGovernment position on these proposals. Inparticular the Legislative Committee often calls incivil servants to provide information on EUdevelopments and on Government policy. In advanceof each Council meeting, the responsible Ministermust report to the Grand Committee on what itemsare on the agenda, and on what the Governmentposition is to be.

Because of this close cooperation betweenGovernment and Parliament, neither the UnitedKingdom and Finland tend to have problems withsubsequent adoption of the national legislationneeded to implement EU decisions. In some otherMember States, where there is less cooperation,problems have occurred more often.

In addition, a number of Member States must obtainthe approval of their Parliaments before agreeing inCouncil to a decision. In most cases, this is aformality, since the Parliaments in question havebeen informed during the course of the negotiationsas to the expected contents of the decision. However,in some cases last-minute amendments to theproposals may cause problems between theGovernment and Parliament.

As for operational functions on the national level,the picture is relatively clear: Member States havekept relatively tight control over who can carry outoperational activities in their territory. The mainprinciple, with few exceptions in theory and inpractice, is that only the authorities of the MemberState in question can carry out operational activities.The few exceptions concern the Schengenarrangements: hot pursuit, and cross-bordersurveillance. In both cases, the Schengenarrangements underline the fact that these are

32 One further EU body should be mentioned, the proposed Standing Committee on operational cooperation on internal security (COSI).The proposal for COSI is included in the Constitutional Treaty, and is motivated at least in part by the fact that – if and when ratified – theConstitutional Treaty would eliminate the need for the so-called Article 36 Committee, which coordinates the preparation of decisions onpolice cooperation and cooperation criminal justice that are going to the Council. Discussions in 2005 focused largely on whether COSIwould be operational, strategic or legislative, or perhaps a mix of all three. The discussions were inconclusive, and were shelved when itbecame clear that the Constitutional Treaty would not enter into force for some time to come.


exceptions. A law enforcement officer in hot pursuitof a suspect into the territory of a neighbouringMember State, or conducting cross-bordersurveillance, must inform the authorities of theMember State concerned within a very brief time,and only the authorities of that Member State canuse coercive measures (such as arrest). Also in thecase of joint investigative teams, whererepresentatives of the law enforcement agencies oftwo or more Member State work together on a case,there are clear rules as to who has the responsibilityand which law applies.

Does the EU focus on law-and-order themes atthe expense of due process and constitutionalprotections?The second argument mentioned above is that EUdecisions tend to focus on law-and-order themes anddo not pay enough attention to due process andconstitutional protections. One could, of course, tryto see to what extent this argument is true simply bycounting how many decisions deal with (forexample) improved cooperation or the creation ofnew offence categories, as opposed to how manydecisions deal with protection of the rights ofsuspects and defendants. However, such a countwould overlook the primary purpose of the thirdpillar, which is to improve police cooperation andcooperation in criminal matters. Arguing that sincethe EU has adopted so many decisions oncriminalization and cross-border cooperation, andso few decisions related to due process, would besomewhat like faulting the police for spending toomuch time chasing suspects and too little timedirecting traffic or finding lost children.

Such a count would also overlook the fact that agood deal of the negotiation in working groups, andall the way up to the Council level, is focusedprecisely on due process and constitutionalprotections. The adoption of some proposals hasbeen slowed – and most recently in the case of theproposed framework decision on racism andxenophobia, has even been blocked – bydisagreements over the extent to which theyendangered constitutionally protected freedoms.

Even if there is no specific reference to due processand constitutional freedoms (and, almost invariably,

such specific references are in fact made by manydelegations), EU decisions would have to conformwith the requirements of the European Conventionon Human Rights, and national commitments.

Is the EU becoming more punitive?The third argument is a corollary of the secondargument: in part because of an alleged legitimacydeficit (which lessens the impact of an electorallyaccountable Parliament, or of non-governmentalorganizations seeking to protect human rights)efforts to develop a European criminal policy tendto gravitate along the lines of the more punitivecountries.

The concept of punitiveness has several aspects. Itmay be evident in the scope of criminalization: morepunitive countries would define a wider scope ofbehaviour as criminal, and thus as requiring aresponse by the authorities. It may also be evidentin the powers given to the police: more punitive(law-and-order oriented) countries would allow thepolice a greater range of investigative tools, rangingfrom electronic surveillance to detention forextended periods without trial, and with fewer andlighter judicial supervision over their use. And itmay be evident in the type and severity of sanctions:more punitive countries would use more invasivesanctions (in particular, imprisonment), and forlonger periods.

To turn first to the idea that the scope of criminalbehaviour is widening in the EU, it is true that, asnoted in section 3.6, the EU has adopted a very largenumber of recommendations, resolutions, jointactions and framework decisions calling uponMember States to criminalise certain forms ofbehaviour. However, in practice this has only rarelyled to the need in Member States to amend theirnational laws, since most of what has been requiredon the EU level had already been implementednationally: such basic offences as fraud, drugtrafficking, trafficking in persons, corruption, moneylaundering, and so on, are already defined indomestic criminal law.

In those cases where national legislation was lacking,often the Member State in question would closelyquestion why the criminalization is necessary, and


would generally succeed in obtaining flexibility inthe application of the new decision. The most recentexample of this is the framework decision onparticipation in a criminal organisation, where oneof the issues was whether it should be an offence tobe a member of a criminal organisation if in fact theorganisation has not taken any concrete measuresto carry out any offence. Some Member Statesobjected to such a criminalisation, and it wasremoved from the text.

As for the scope of police powers, there are in factfew EU decisions on the matter (see section 3.6),and they do not appreciably expand the scope ofpolice powers in any of the Member States. Policepowers could in theory be expanded throughdecisions on mutual recognition. One could assumethat if a court must recognize a decision given by acourt in another Member State, this might requirethat court to also recognize the wider police powersallowed in that other State. However, the EUdecisions on mutual recognition have beenformulated so as not to require Member States tocarry out measures which are not in accord with theirconstitutional principles.

It is perhaps in respect of the type and severity ofsanctions that there is the most visible tendency toincrease the punitive level in the EU. The indirectcause of this is the argument that the level ofsanctions should be approximated (if notharmonized) across the EU. In its Green Paper onthe approximation, mutual recognition andenforcement of criminal sanctions in the EuropeanUnion (COM(2004)334 final), the Commission listsa number of arguments for such approximation:

- the symbolism of defining commonoffences and penalties in relation to certainforms of crime;- the development of a shared sense ofjustice;- the pedagogic value of signalling thatcertain forms of conduct are unacceptableand punishable on an equivalent basis;- the corollary of a European area ofjustice, that the same criminal conductincurs similar penalties wherever theoffence is committed in the EU;

- the role of EU minimum standards inpreventing offenders from “forumshopping”;- easing acceptance of the ne bis in idemprinciple;- the argument that the current focus oninstruments based on the principle ofmutual recognition has eliminated theneed for certain mechanisms for judicialcooperation that depended on the level ofpenalties;- the link between approximation ofcriminal law and the effectiveimplementation of a Union policy whereharmonisation measures have been taken;and- easing acceptance of mutual recognition.

At least the following points can be made regardingthe objectives identified in the Green Paper.

The symbolic value of common offences andpenalties. The definition of and, to a growing extent,maximum minimum penalties for, key offences withtransnational aspects are already covered by EUinstruments. Even without EU instruments, theseoffences are already extensively covered by nationallaw. Since the individual criminal justice systemsthus have the necessary tools to respond to thesecrimes, it is questionable whether any “message”on an EU level would add anything of substance.There does not appear to be any criminologicalevidence that such a symbolic message would havean appreciable impact.

The development of a shared sense of justice. Thisargument is closely analogous with the precedingone, the symbolic value of common offences andpenalties. The legal sociology literature containsconsiderable material on the concept of a sense ofjustice, including on the extent to which such a senseof justice can be fostered. The sense of justice variesextensively within countries, even withincommunities. From this point of view, it can bedoubted whether approximation would have thedesired effect.


The pedagogic value of signalling that certain formsof conduct are unacceptable and punishable on anequivalent basis. This is a rather ambiguousobjective. As noted, the key offences are alreadycriminalized through the EU, and so there is nodemonstrable need for a pan-European “signal” thatthese forms of conduct are unacceptable. Stating thatthe objective is to have such conduct “punished onan equivalent basis” would seem in this context tobe an example of circular reasoning: the objectiveof approximation is justified by invoking theobjective of approximation.

The corollary of a European area of justice, that thesame criminal conduct incurs similar penaltieswherever the offence is committed in the Union. Theconcept of a “European area of justice” does notnecessarily require similar penalties throughout theEU; what would seem to be fundamental is that thesame standard of justice is applied in all MemberStates. The analogy to a federal State can be made:no one would deny that federal states constitute“areas of justice,” even though the law is draftedand applied somewhat differently in the differentLänder, cantons or other administrative units.

The role of Union minimum standards in preventingoffenders from “forum shopping.” There does notappear to be any criminological evidence thatoffenders in fact decide where to commit an offenceon the basis of which Member State has the laxestlaw or the most lenient punishment. To the extentthat offences are planned (as seems to be the casewith most serious cross-border crimes, although alarge number even of these offences areopportunistic), the factors offenders take intoconsideration include the expected gain and the riskof apprehension. The gravity of the likelypunishment if apprehended and convicted tends toplay considerably less of a role, if for no other reasonthan the implicit assumption made by most offendersthat they will not be apprehended.

Easing acceptance of the “ne bis in idem” principle.Since in practice there are few cases where the nebis in idem principle applies, its use as anindependent objective has limited value.

The argument that the current focus on instrumentsbased on the principle of mutual recognition haseliminated the need for certain mechanisms forjudicial cooperation that depended on the level ofpenalties. The logic behind this objective appearsto be difficult to discern. The fact that, for example,extradition is conditioned on a certain minimumlevel of expected penalty, and that extradition haslargely been replaced by the use of the EU arrestwarrant, would seem to have nothing to do withapproximation of criminal sanctions one way or theother.

The link between approximation of criminal law andthe effective implementation of a Union policy whereharmonisation measures have been taken. Althougharticle III-172(2) of the Constitutional Treaty (which,it should be noted, is not – yet – in force) does indeedmake a link between approximation of criminal lawand the effective implementation of a Union policy,this article simply sets out one of the (legal)conditions for further approximation.

Easing acceptance of mutual recognition. As notedin section 4, a theoretical argument can indeed bemade that approximation promotes the acceptanceof the principle of mutual recognition. However, inthat context, the reference is usually to theapproximation of substantive criminal law andprocedural law, not to the approximation ofsanctions. There is little evidence on any linkagebetween mutual recognition and similarities ordissimilarities in the levels of punishment.

The issue here, however, is not whether or not theapproximation of sanctions on an EU-wide level isdesirable, but what impact approximation wouldhave on the type and severity of punishment. It is,of course, possible to agree, throughout the EU, thatthe goal of approximation should be a relativelymodest level of sanctions: extensive use of non-custodial sanctions, for example, and if and whencustodial sanctions are used, having as short asentence as possible. There are indeed strongarguments for seeking wider promotion of a rationaland human criminal policy.


The debate in the EU over the approximation ofsanctions was at its hottest during the first years ofthe present decade. In connection with the draftingof almost each new decision on criminalisation,some Member States with relatively high penallatitudes would suggest that their levels be taken asthe point of departure, and that Member States withmore lenient latitudes would have to adjust at leasttheir minimum sentences accordingly. Almostinvariably, when representatives of the latterMember States would defend their own levels ofpunishment as appropriate, representatives of thefirst group would respond with the admonition: “buthaving a low level of sentences would send thewrong political signal!”

The continuous debates were calmed by theadoption, on 26 April 2002, of Council conclusionsthat essentially stated that subsequently, offenceswould be divided into four levels, with different“minimum maximums” (i.e., the lowest maximumsentence that each Member State was required toenact into its national law): 1 – 3 years for level oneoffences, 2 to 5 years for level 2 offences, 5 to 10years for level three cases, and at least 10 years forlevel four cases.

It may be noted here that what was distinctly absentfrom the discussion was the suggestion that some“levels” should lead to fines or other non-custodialsanctions. There were understandable reasons forthis. The most important is presumably that the EUfocuses on serious cross-border crime. Such aconcept may inevitably lead most observers (andnegotiators) to make the assumption that no matterwhat the individual offence is, if it is a “serious cross-border crime”, it must merit imprisonment.

6. Pulling it all together: what is thereality behind the myths?

This paper has looked at three common “myths”about the impact of the European Union on criminaljustice: EU decisions have little impact on reality,the EU is becoming a super-state with a harmonizedcriminal and procedural law, and the EU is focusing

on the control of crime at the expense of due processand constitutional protections, resulting in a law-and-order mentality and a more punitive criminaljustice system.

Regarding the first opinion of the EU, it does nothold true. The EU has been actively engaged in homeand justice affairs for somewhat over ten years (ifone ignores the informal cooperation that evolvedbefore the Maastricht Treaty entered into force), andin that time the extent and scope of policecooperation and cooperation in criminal justice hasfar outpaced cooperation elsewhere. In many areas,the EU is breaking new ground, and other regionsand subregions are beginning to see to what extentthey can adapt EU forms of cooperation to their owncircumstances.

Although it appears that the process of negotiatingnew decisions has slowed in the EU, new decisionsare still being prepared.

The second opinion of the EU also does not holdtrue, in that there are strong institutional and otherfactors that limit the extent to which the MemberStates are prepared to harmonize their criminal andprocedural law. Many Member States emphasize thattheir interest in greater cooperation extends only toserious forms of cross-border crime: they are notprepared to approximate legislation on forms ofcrime that usually do not have cross-borderimplications.

The third opinion of the EU is true to the extent thatmuch of what the EU is doing in police cooperationand cooperation in criminal justice is designed tomake such cooperation more effective. However,many Member States are quite sensitive toarguments of due process and fundamental rights,and the end result – the EU decision that has to beimplemented on the national level – tends to reflecta balance between what is known in thecriminological literature as the “crime controlmodel” and the “due process model.”

As noted at the outset, the European Unionrepresents a unique form of internationalcooperation. However, the tensions and assumptionsreflected in the three myths described in this paper


are not unique to the EU. To a large extent, theyappear also in debates on criminal justice on thenational level.

On this national level, members of the public,representatives of the media and often alsopractitioners may be quick to suggest that thepoliticians and the criminal justice system are notin fact doing anything (or at least are not doingenough) about the “crime problem.”

The idea that the EU is becoming a “super-state”that is taking over from the Member States has itsown parallel in the debate on what is known as“green criminal policy,” the idea advocated byscholars such as Louk Hulsman, Derick McClintockand Nils Christie that the State has too much powerin defining what is criminal, and is too active inintervening in the lives of citizens – victims andalleged offenders alike.

As for the idea that the EU is a law-and-orderadvocate, also this has a familiar ring on the nationallevel. Criminology has seen both short-term andlong-term swings from periods of punitive criminalpolicy to periods of more liberal criminal policy,and back again. (At the time of this writing,politicians in some EU Member States areadvocating restoration of the death penalty.)

What can be said is that over the past ten years, theEuropean Union has transformed the Europeandebate on criminal policy. Many key debates whichhad previously been conducted on the national levelhave now moved to the European Union level, andEuropean Union decisions have considerableinfluence on national law, policy and practice.Agreement has been reached on the minimumrequirements when criminalising a number ofdifferent offences (such as trafficking in humanbeings and sexual exploitation of children, andparticipation in a criminal organization).International co-operation in criminal matters hasbeen smoothed by the establishment of Europol,Eurojust and the European Judicial Network, andby a fairly rigorous system for mutual evaluation ofthe day-to-day practice in international co-operation.Conventions have been adopted in order to simplifyextradition and mutual assistance. The growing

scope of mutual recognition has made theenforcement of court decisions and judgments muchmore rapid and effective.

At the same time, the European Union is enteringinto new territory. The current debates for exampleon transferring the contents of the third pillar to thefirst pillar, and on finding the proper balancebetween mutual recognition and approximationshow that there is keen interest in improving theability of the twenty-five Member States of the EUto work together to find the proper response tocriminal justice issues, a response that balanceseffectiveness with due process guarantees.


HEUNI Papers:

1. Report on the visit to Lithuania on behalf ofHEUNI. 8-12 February 1993 by Dr. KatarinaTomasevski. (out of print)

2. International Co-operation. The Development ofCrime Prevention and Criminal Justice in Centraland Eastern Europe by Dr. Matti Joutsen. 1994 (outof print)

3. The Interchangeable Roles of Victim andVictimizer. Second Inkeri Anttila Honour Lecture,Department of Criminal Law and Judicial Procedure,Faculty of Law, University of Helsinki, September9, 1993. by Ezzat A. Fattah.

The following documents are availableelectronically from:http://www.heuni.fi

4. Developments in the Prison Systems of Centraland Eastern Europe. By Roy Walmsley. 1995 (outof print)

5. Crime, Justice and Human Rights in the Balticsby Maeve McMahon. 1995 (out of print)

6. Organised Crime Across the Borders, PreliminaryResults by Ernesto U. Savona, Sabrina Adamoli,Paola Zoffi with the assistance of Michael DeFeo.1995 (out of print)

7. Alien-Smuggling and Uncontrolled Migration inNorthern Europe and the Baltic Region. ByChristopher J. Ulrich. 1995 (out of print)

8. Managing International Technical AssistanceProjects in Criminal Justice. By Matti Joutsen. 1996

9. Motor Vehicle Theft in Europe. By MarkkuLiukkonen. 1997 (out of print)

10. Prison Populations in Europe and NorthAmerica. By Roy Walmsley. 1997 (out of print)

11. Anticipating instead of Preventing: Using thePotential of Crime Risk Assessment in Order toMinimize the Risks of Organized and Other Typesof Crime. By Seppo Leppä. 1999

13. Drug Offenders in the Global Criminal JusticeSystem. By Sheryl Van Horne and Graham Farrell.1999

14. Pervasive Illicit Small Arms Availability: AGlobal Threat. By Peter Lock. 1999

15. World Prison Population: Facts, trends andsolutions. By Brian Tkachuk and Roy Walmsley.2001

16. Prison Health Care in the Czech Republic,Hungary and Poland. By Morag MacDonald. 2001

17. Criminal Justice Reform: Lessons Learned,Community Involvement and Restorative Justice.By Brian Tkachuk. 2002

18.Trafficking in women and children in Europe.By Martti Lehti. 2003

19. A Comparative Report of Health Care Provisionsin Prisons in Poland, Hungary and Czech Republic.By Morag MacDonald. 2003

20. What does the world spend on criminal justice?By Graham Farrell and Ken Clark. 2004

21. The role of statistics and public opinion in theimplementation of international juvenile justicestandards. By Carolyn Hamilton and Rachel Harvey.2005

22. Prisons in Central and Eastern Europe. By RoyWalmsley. 2005

23. A Study of the Health Care Provision, ExistingDrug Services and Strategies Operating in Prisonsin Ten Countries from Central and Eastern Europe.By Morag MacDonald. 2005

12. Compensation Practices of States of theEuropean Union Connected to Crimes AgainstWomen. By Christian Bochmann and Kai-UweGriesheim. 1999

24. Organized crime, corruption and themovement of people across borders in the newenlarged EU: A case study of Estonia, Finland andthe UK. By Jon Spencer, Kauko Aromaa, MikaJunninen, Anna Markina, Jüri Saar and TerhiViljanen. 2006

Helsinki 2006

the european union and cooperation in criminal matters: the

Documents