The fight against terrorism in Europe What the EU does (not do) and what it should do (*)

FondazioneBasso

(*) This was the title of a discussion seminar organised by Fondazione Lelio e Lisli Basso on April 18, 2016, attended by leading criminal judicial cooperation experts as well as by Emilio DE CAPITANI, Executive Director of the FREE Group,at the end of which the following document was drafted, which we submit to the attention of all concerned and in particular those responsible for policyin this sector.

A true EU criminal justice area: proposals for discussion

The Lisbon Treaty has profoundly changed “criminal justice cooperation” in the European Union.First, it provides for the introduction of legislative harmonization measures in the spheres of substantive and procedural law, through directives to be approved by means of ordinary legislative procedures.This creates the necessary legal bases for the extension of Eurojustcompetences,well beyond its present remit,and the creation of a European Public Prosecutor’s Office, whose responsibilities would initially be limited to the prevention of fraud against the EU budget, but which later could be extended to other areas, first and foremost the fight against terrorism and organized crime.

These innovations were not so much due to the initiativeof enlightened lawmakers but rather decades of cooperation between judicial bodies of member countries (starting with Council of Europeconventions), the trialling of horizontal forms of joint work (from the European Judicial Network to the practical implementation of Eurojust), and the obvious fact that in a globalized world,crime – financial, organized and terrorist – knows no boundaries, especially in Europe, which has become a single economic area.

This evolution has been followed by major European legal experts, who have supported this long and continuously evolving process.

However, the innovations introduced by the Lisbon Treaty, which entered into force more than six years ago, have remained largely unimplemented. After a first phase, between 2010 and 2012, positively characterized by the adoption of a number of important directives on the harmonization of a uniform set of minimum rights for the defence in criminal proceedings (the necessary prerequisites for building mutual trust among diverse systems and mutual recognition of decisions), legislative efforts seem to have run aground against the great difficulties of the Council, the inertia of the European Parliament and the substantial paralysis of Commission proposals. The only legislative measure of any importance came into force in 2014, the Directive on the European Investigation Order (EU Directive 2014/41 of 3 April 2014), the result of a proposal made by some Member States dating back to 2010,to be transposed, in the not too distant future, by May 2017.

Meanwhile the Commission’s proposals for a new directive on offenses against the Union’s financial interests (so-called PIF Directive) and regulations for the reform of Eurojust and for the introduction of a European Anti-Fraud Public Ministry have for years been lying on the Council’s table after extenuating negotiations and after undergoing a series of modifications that have greatly weakened the original scheme.

With regard to the anti-fraud prosecutor, the text currently under discussion, if approved, does not provide for a truly European public prosecutor’s office, ie a European judicial organ, but only what, in substance, is just another intergovernmental agency, something quite different from the common organ of investigation and prosecution envisioned in Article 86 of the Treaty. Also the proposal for a Eurojust Regulation (a timid rewriting of existing provisions rather than any real consideration of the new possibilities offered by article 85 of the TFEU), at present languishes in an apparent dead end. But what is most striking is that not even in the field of minimum criminal legislation for the protection of the Union’s financial interests, that is to say the defence of public assets that entirely belong to the Union and not to single member states, have we succeeded, in almost four years of negotiations, in reaching agreement in the Council and Parliament. The risk is that, at the end of the negotiations, we shall end up with a diluted version not only of the original 2012 proposal but also the 1995 Convention that the directive is meant to replace. This would represent the first time that a step back has been taken in the process of forming European criminal law and, to some extent, of European integration itself.

Another very serious matter is what appears to be the Council’s substantial closure towards any real discussions of major policy guidelines for the area of freedom, security and justice, with a view to drafting a general document that can replace the Stockholm Program, which expired in December 2014, a document which can continue the course set by the Tampere and Hague programs of 1999 and 2004 respectively. This document, expressly provided for in Article 68 TFEU, has, for nearly two decades, constituted “the” common agenda in this sector for both European and national institutions, something which can be used to set individual measures into a more general framework, and offer future prospects. Its absence seems to be a clear indication of the European Council’s failure to exercise the prerogatives assigned to it by the Treaty itself.

We believe we need to combat this inertia.

The recent dramatic events in France and Belgium have shown, though this was already more than clear, that serious forms of crime, and among them of course terrorism, take advantage of the freedom of movement between our countries. And it is common knowledge that the sort of terrorism we must fight today is structurally and operationally different from the forms that we have known up to now. It operates beyond national borders and beyond European confines, and to imagine that it can be defeated by national criminal policies is a dangerous illusion.

According to the good intentions that have been expressed on numerous occasions, European leaders are motivated by a desire to achieve a higher level of cooperation in criminal matters. However, fine words do not seem to be have been followed by facts.

What is primarily missing from discussions is a frank, empirical and objective assessment of the state of implementation and operation (and especially non-operation) of existing cooperation instruments. We often hear of the difficulties which have prevented effective, trustworthy and complete exchanges between authorities of different states as regards criminal reports and investigations. National authorities do not always cooperate effectively, as would be expected from the principle of mutual trust. Even the flow of information to Eurojust seems to be insufficient, in the eyes of many national authorities, and accompanied by reticence. We must put an end to these nationalistic jealousies. If a crime has transnational characteristics, an answer must be found at transnational level. This is particularly evident with regard to terrorism, and what is certain is that it will not be the introduction of barriers at borders or the presence of police on trains to stop terrorists.

We are asking for this verification to take place, with the support of the many judges and prosecutors that have already cooperated in good faith, and of the academies and universities that have greatly contributed to the development of a common culture.

Negotiations on the European Public Prosecutor’s Office and the PIF Directive are proceeding wearily and contradictorily, based, moreover, on texts that by no means reflect the proclaimed desire to establish a body that will give added value to investigations in this area. They must be finalised within a reasonable time so that the future Public Prosecutor can have effective and efficacious powers of investigation, overcoming neo-nationalist instincts and obstacles.

We believe that the Commission urgently needs to put forward a proposal for a new “facilitation” directive on fighting criminal activities, which, by taking advantage of situations of war and extreme poverty, speculate on migrants and refugees. There have been too many deaths in the Mediterranean and the Balkans. The absence of an effective policy to combat crimes constitutes a black hole in the Union’s policies.

An answer must be found to the annulment of the Directive on data retention by the Court of Justice, Digital Rights Ireland Ltd(C-293/12)of 8 April 2014, to which no response has so far been given. This has resulted in the absence of common rules, so that each country has returned their own national regulations, which are very different, creating uncertainty and confusion in requests for and exchanges of data.

We hope that the framework of European tools to halt the proceeds of criminal activity may finally be completed through the presentation of the Commission proposals on mutual recognition of confiscation orders, including those that are not conviction based.

The European Union must not give in to the temptation of emergency measures for criminal activities, which may lower the level of freedom and security of its citizens. It should instead focus on harmonization and cooperation, so as to raise the overall efficiency of the system while enhancing individual rights.

Contributing to the drafting of this paper were Ignazio Patrone, Lorenzo Salazar, Eugenio Selvaggi and AndreaVenegoni, judges with extensive experience at European level.

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