Category: 8.2 Judicial cooperation in criminal matters

Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..

OPINION  (ORIGINAL PUBLISHED HERE)

par Simone GABORIAU 
Présidente de chambre honoraire de la cour d’appel de Paris (Membre du Conseil d’administration de M.ED.E.L).

Apres les attentats des 7, 8, 9 janvier, les plus meurtriers qu’ait connus la France depuis plus de 50 ans (1), après la stupeur, l’émotion et l’union, le temps de la réflexion rationnelle s’impose. Il faut le faire en France et au sein de l’Europe des droits de l’homme mais aussi dans le contexte de l’environnement humanitaire mondial.
Les actes terroristes ne sont pas nouveaux dans l’histoire du monde
Contrairement a bien des idées reçues, le terrorisme n’est pas le fruit du malheur de notre temps mais appartient a une histoire ancienne.
« L’histoire mondial du terrorisme concerne la totalité du monde et ne fait pas de distinction entre continents, aires culturelles et religieuses (2) ».
Du terrorisme interne au terrorisme international, les origines en ont été multiples ; y ont été représentées : toutes les religions, divers courants de pensée, des mouvements irrédentistes, ou de résistance à l’oppression ou de conquête d’indépendance face au colonisateur… Certains groupements ont été héroïses d’autres diabolisés. Certains ont été vaincus par la force ou la répression, d’autres se sont finalement assis a des tables de négociations. Sans oublier de citer le « terrorisme d’Etat » dont l’origine est notamment à « la terreur » de la Révolution française, reprise par la Révolution russe et qui peut s’appliquer à bien des situations de terreur d’Etat qui ont sévi ou sévissent encore dans le monde.

Un terrorisme devenu global

Les attentats du 11 septembre 2001, ont révélé que l’on doit, de plus en plus, faire face à un terrorisme global, en ce qu’il emprunte les moyens de la globalisation technologique et financière pour relier des individus, ou groupes, terroristes, indépendamment de leur base territoriale.
Cette nouvelle dimension a facilité la montée en puissance du terrorisme se revendiquant du radicalisme islamique lequel, actuellement, serait responsable de la majorité du nombre de victimes (3).
Mais il faut se garder, d’interpréter cette situation comme une manifestation du « choc guerrier des civilisations » car ce serait tomber dans le piège tendu par ce terrorisme.

La reconnaissance d’une communauté mondiale de valeurs (4) ?

Ce caractère global a plus que jamais motive la volonté de coopération internationale. Apres l’échec de la SDN, l’ONU peine a l’établir de façon compatible avec la sauvegarde des droits fondamentaux comme l’illustre le système des « listes noires » finalement annulé par la Cour de justice des communautés européennes (5).
Cette communauté de valeurs parait avoir été mieux sauvegardée au niveau européen, a tout le moins, par le rôle des juridictions Cour Européenne des droits de l’homme et Cour de justice des communautés européennes.

La montée en puissance de la reconnaissance des victimes

Dans cette communauté de valeurs, la personne de la victime a pris une place grandissante. L’acte terroriste qui trouvait jusque dans les années 1970-80, bien des gens pour l’excuser ou le légitimer est devenu d’autant plus insupportable qu’il visait des civils définis des lors comme des victimes par excellence (6).
Le discours public en France, et sans doute dans bien des pays, est particulièrement sensible a la prise en compte des victimes. C’est, au reste, un des progrès récent de nos sociétés démocratiques.

Brève, et non exhaustive, analyse de la situation Française Continue reading “Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..”

The revision of the EU Anti-Money Laundering legal framework is fast approaching..

By Dalila DELORENZI (Free Group trainee)

1.Foreword

Broadly speaking Money laundering means the conversion of the proceeds of criminal activity into apparently clean funds, usually via the financial system  by disguising the sources of the money, changing its form, or moving the funds to a place where they are less likely to attract attention. Terrorist financing is the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used in order to carry out terrorist offences. At EU level since 1991 at EU level legislation has been introduced to limit these activities and to protect the integrity and stability of the financial sector and, more in general, of the Internal Market. The EU rules are to a large extent based on Recommendations  adopted by the Financial Action Task Force (FATF) which is an intergovernmental body with 36 members, and with the participation of over 180 countries in the world.

The directive currently into force is the Third Anti-Money Laundering (AML) Directive which applies to the financial sector (credit institutions, financial institutions) as well as to professionals such as lawyers, notaries, accountants, real estate agents, casinos and company service providers. Its scope also encompasses all providers of goods, when payments are made in cash in excess of EUR 15.000. All these addressees are considered “obliged entities”. The Directive requires these obliged entities to identify and verify the identity of customers (so-called customer due diligence, hereinafter ‘CDD’) and beneficial owners, and to monitor the financial transactions of the customers. It then includes obligations to report suspicions of money laundering or terrorist financing to the relevant Financial Intelligence Units (FIUs), as well as other accompanying obligations. The Directive also introduces additional requirements and safeguards (such as the requirement to conduct enhanced customer due diligence) for situations of higher risk.

In force since 2005 the third Money Laundering Directive required a revision against the backdrop of the constantly changing nature of money laundering and terrorist financing threats, facilitated by a constant evolution of technology and of the means at the disposal of criminals. In particular, the recent terrorist attacks in Paris have increased the necessity of decisive actions against terrorist financing and further efforts need to be made in adapting the current framework to a different reality. Therefore in accordance with this purpose, at the international level measures have been taken by the Financial Action Task Force (FATF): a fundamental review of the international standards has been undertaken and a new set of Recommendations have been adopted in February 2012.

In parallel to the international process, the European Commission with a view to complying with the international standards has undertaken its own review of the European Anti-Money Laundering framework. This revision consisted in an external study (the so called Deloitte study) on the application of the Third AMLD (Directive 2005/60/EC) and in extensive contacts and consultations with private stakeholders and civil society organisations, as well as with representatives of EU Member State regulatory and supervisory authorities and Financial Intelligence Units (FIUs).

The results of the Commission’s review were set out in a Report , addressed to EU Parliament and Council, where it was analysed how the different elements of the existing framework have been applied and how it may need to be changed, highlighting the necessity to introduce clarifications or refinements in a number of areas.

More specifically, the main problems in the current EU anti-money laundering/combating terrorist financing legislative framework are: (i) inconsistency with the recently revised international standards; (ii) different interpretation and application of rules across EU Member States; and (iii) inadequacies and loopholes with respect to the new money laundering and terrorist financing risks.

2. The EU Commission’s proposals Continue reading “The revision of the EU Anti-Money Laundering legal framework is fast approaching..”

(EPPO) European Public Prosecutor: also the European Parliament wants a say…

by Giuseppe RIZZO (Free Group Trainee)

How a simple “yes or no” could be complemented by a political dialogue

After almost two years since the European Commission’s Proposal for a Regulation on the establishment of a European Public Prosecutor’s Office (EPPO), the Council of the European Union is still negotiating the rules concerning the institution and the action of the EPPO (see preparatory documents here).

According to art. 86  of the TFEU, this new body could be established with unanimity within the Council of the EU or with an enhanced cooperation by at least nine Member States. It is worth noting that unlike  the ordinary legislative procedure in the EU, art. 86 of the TFEU establishes a special legislative procedure where the Council has to take the final decision even if  the European Parliament can approve  or reject the Council’s text.. This institutional model  which can be sensible when international agreements are at stake (as the EP like the national parliaments can only ratify or reject them) , when applied at legislative level is not consistent with the general rule according to which EU legislation should result from an agreement between the Council which represent the national governments and the European Parliament as direct representative of EU Citizens.

To overcome this political and institutional imbalance the EP in the cases of legislation to be adopted by simple consent ,has established a practice through which it try to influence the position of the Council by adopting interim reports with recommendations. The latter even if not legally binding could have a political weight and should be taken in account by the Council if it wants avoid the risk of rejection of its text and the need to re-start from scratch a new procedure  (as it already happened after the rejection of some international  agreements).

The EP Interim reports    

On the EPPO proposal the European Parliament already adopted on 12th March 2014  in the previous legislature an interim resolution  which was focused on issues such as the jurisdiction of the future Institution,  if and how decisions taken by the prosecution could be appealable, the relations between the EPPO and other already existing Agencies and bodies such as Eurojust and OLAF.  The 2014 EP LIBE resolution highlighted, the relation between the Member States notably  in case of adoption of the EPPO regulation following the  “enhanced cooperation” procedure  (by so trying to frame the relation between participating and non-participating Member States).

One year after the LIBE Committee has drawn up another Interim Report that will be discussed next week by  the plenary in Strasbourg.

In this new report the LIBE Committee takes stock of the current state of negotiations in the Council, and focus on the most important characteristics of the future EPPO. Notwithstanding the reservations of several national parliaments LIBE confirms the necessity and urgency of building up the new body also to overcome the Member States persistent unwillingness to follow the  recommendations for prosecution issued by OLAF (followed only in 31% of the cases from 2006 to 2013).

LIBE also agree that for the time being that the competence of the future EPPO should be limited to offences relating to fraud against the financial interests of the Union, even if the spreading of the terrorist threat in the EU could had suggested a wider EPPO competence taking stock of the limits of Europol and Eurojust in this sensitive domain. But even if limited to the protection of financial interests the new competence should be further defined as nowadays there is not yet a uniform definition of what constitutes illegal activities “affecting the EU’s financial interests”. In principle this legal gap will be soon overcome by another legislative text currently negotiated between the EP and the Council [1], the so-called “PIF” Directive (from the French acronym: protection des intérêts financiers) which will also define the scope of the material competence of the future EPPO which will be the subject of an incoming post of this blog.

Structure and competence of the EPPO Continue reading “(EPPO) European Public Prosecutor: also the European Parliament wants a say…”

EU Zombie Law: the CJEU re-animates the old ‘third pillar’

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Back in 1993, when the Maastricht Treaty entered into force, the EU began adopting measures on criminal law and policing under a peculiar institutional system, known in practice as the ‘third pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999, and then survived several attempts to kill it over the next decade; indeed I once compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as from that Treaty’s entry into force (1 December 2009); but this was subject to a five-year transitional period.

That makes it sound as though the third pillar finally came to an end on 1 December 2014 – but it did not. Indeed two judgments of the CJEU yesterday (here and here) not only maintain old third pillar measures in force, but allow new measures based on them to be adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these zombies of EU law.

Background

The Treaty of Lisbon has a transitional Protocol, which contains two rules relating to the third pillar. First of all, Article 10 sets out the five-year transitional period, after which the normal jurisdiction of the CJEU would apply to the measures concerned. At the same time, the UK could choose to opt out of all of these measures, and then opt back in to some of them, as it indeed did last year (see discussion here).

Secondly, Article 9 of that Protocol, which is not subject to a time limit, states that third pillar measures adopted before the entry into force of the Treaty of Lisbon stay in force until they are amended or repealed. Some of them have been amended or repealed, or will be soon (the law establishing Europol, for instance). But the majority remain in force, including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts. Secondly, this means that the European Parliament (EP) has not had any real say in the adoption of these measures. In particular, the EP has a lot of excellent suggestions for the reform of the EAW. Thirdly, a legal question arises as to whether the pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into force of the Lisbon Treaty. This question was answered by yesterday’s judgments.

Judgments

The EP challenged the validity of post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law acts, in particular giving police forces access to the EU’s Visa Information System and prohibiting some new designer drugs. There are parallel actions still pending, against measures implementing pre-Lisbon laws establishing Europol and the ‘Prum’ system of exchanging data between national police forces.

The reason for the EP’s objection to these measures was that the Council exercises these powers by means of a qualified majority vote, and argues that it does not have to consult the EP at all, since the legal requirement to consult the EP was set out in the old third pillar rules in the Treaty, which were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use the post-Lisbon rules for the adoption of implementing measures, ie giving the Commission the power to adopt delegated acts over which the EP has control. Alternatively, fresh EU legislative acts have to be adopted; these would be subject to the ordinary legislative procedure.

The CJEU ruled that, in accordance with Article 9 of the transitional protocol, the pre-Lisbon measures remain in force. In the Court’s view, that also means that the Council is entitled to adopt implementing measures following the pre-Lisbon process. However, the Court, unlike the Advocate-General, said that the Council at least has to consult the European Parliament on these measures. It reasoned in effect that the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation retained those rules in force.

Comments

The Court’s ruling in effect allows the Council to create new third pillar acts long after the third pillar has nominally died. It’s as if zombies could procreate, and give birth to baby zombies (I’m going for a ‘grossest legal analogy’ award here).  Furthermore, the Court’s reasoning as regards the EP’s partial victory means that to some extent, even aspects of the long-dead Treaty rules on the third pillar have now been zombified by the Court.

How much damage could these zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law. Apart from these implementing measures, all other EU criminal law acts adopted since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations, and have been subject to the post-Lisbon procedures (usually the ordinary legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t provide for implementing measures, and some of those which do (such as the Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable legal interpretation of the transitional rules. But the broader political problem remains: many controversial measures affecting civil liberties have had no real input from the EP. Since its resort to the courts has had only limited success, the EP should now consider alternative means (blocking legislation or budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal laws – and in particular securing much-needed reforms to the EAW.

 

Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?

by Charline QUILLÉROU (EU-LOGOS Athéna trainee)

NB The text below summarizes a French Master thesis.

The reform of the prison system is a sensitive issue in France. This debate takes place in a context of dilapidating prison buildings and chronic overcrowding, exacerbated by punitive criminal justice policies. Such a situation leads to sub-human conditions of detention that have been condemned many times, both nationally by MPs[1], associations involved in the defence of detainee’s rights[2] or various papers[3], and internationally by the Commissioner for Human Rights of the Council of Europe[4] and the European Court of Human Rights. The reforms undertaken have difficulties improving significantly these conditions of detention.

The Council of Europe (CoE) and the European Union (EU) have a role to play in protecting the rights of persons deprived of their liberty. Recommendations have been instrumental in changing national practices. Nevertheless, the EU has almost turned a deaf ear to it while the CoE has been very active. In its resolution of December 2011, the European Parliament recognised that “whereas detention conditions and prison management are primarily the responsibility of Member States […] shortcomings, such as prison overcrowding and allegations of poor treatment of detainees, may undermine the trust which must underpin judicial cooperation in criminal matters based on the principle of mutual recognition of judgments and judicial decisions by EU Member States”[5]. As a result in June 2011, the European Commission published a Green paper entitled “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention”.  Since then, nothing has happened at the level of the EU.

The CoE is an intergovernmental organisation created in 1949 by a group of European countries – Belgium, Denmark, France, the United-Kingdom, Iceland, Italy, Luxembourg, the Netherlands, Norway and Sweden – that today consists of 47 Member States. All the EU Member States take part in the CoE, together with Turkey and Russia, to name but a few. According to its statute, “the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”[6] To achieve that purpose, especially in regards criminal matters, the CoE relies on the European Court of Human Rights (ECtHR) and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The European Prison Rules (EPR) consist of a set of three recommendations made by the CoE which define the minimum rules applicable in prison facilities both for detainees and staff. They cover many aspects of prison life such as hygiene, nutrition, contact with the outside world, work, recreation, education, transfer of prisoners, health or training of prison staff. Therefore, the idea is to harmonise national practices across Europe. Initially adopted in 1973, the EPR were updated in 1987 and 2006. The latest update attempted to take into account the developments in the jurisprudence of the ECtHR, in the norms established by the CPT, in societal changes that arose due to security constraints in the aftermath of 9-11 and the resulted prison population inflation.

There are 108 EPR, detailed in 308 recommendations. It is of crucial importance to understand that a recommendation is not legally binding. The EPR are not entitled to be transposed into national law as such, but are meant to serve as a guide for Member States in formulating their policies and legislation. This is well exemplified in the Commentary to Recommendation Rec(2006)2 that indicates : “prison administrations should seek to apply all Rules in the letter and the spirit of the principles.”[7] The main objectives are the establishment of common standards and reinforcement of international cooperation through appropriate incentives. The incitement dimension of the EPR refers to the issue of the influence of the CoE within the territory of the Member States that has been theorized as “europeanisation”. The europeanisation process refers to the influence of the European institutions or organisations on national and sub-national politics, policies and polity. Prison matters are barely addressed by the European institutions and CoE recommendations are not legally binding. On such important policies, europeanisation is only about the Council of Europe, even though human rights lie at the heart of the EU.

If European activities have a substantial impact on national institutions and policies, heterogeneity is its main feature. The adoption of the revised EPR in 2006 is a case in point, revealing the complex mechanisms of europeanisation at work. This is all the more true given that it led to the adoption of the French prison law of 24 November 2009, which, according to the Ministry of Justice Web site, “validated and translated into domestic legislation the majority of the European Prison Rules”. All these elements raise the following question:

To what extent do the European Prison Rules participate in the europeanisation of the French prison system? Continue reading “Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?”

La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas

ORIGINAL PUBLISHED HERE

9 AVRIL 2015
par Henri Labayle, CDRE

Une fois encore, une partie de la classe politique française a su se mettre à la hauteur des enjeux : dans sa participation à la défense des valeurs de la République, au lendemain des attentats terroristes de Paris, rien ne lui est apparu plus légitime qu’une violente charge contre la Convention européenne des droits de l’Homme.

Ainsi, une proposition de résolution de l’Assemblée nationale, déposée le 12 février 2015 (AN n° 2061), invite le Gouvernement rien moins qu’à « renégocier les conditions de saisine et les compétences de la Cour européenne des droits de l’Homme (CEDH) sur les questions touchant notamment à la sécurité nationale et à la lutte contre le terrorisme ».

Son rejet est anecdotique, si son inscription ne l’est pas tout à fait. On en sourirait même, si les signataires du texte ne comptaient pas parmi eux, entre autres, deux anciens secrétaires d’Etat en charge des affaires européennes, un professeur agrégé des facultés de droit et nombre d’avocats attestant finalement que les passerelles que les élus se sont ouvertes vers cette profession sont une bien mauvaise nouvelle pour la justice. Ailleurs, on s’étonnerait de voir des auxiliaires de justice se faire les chantres de l’exclusion du juge. Ici, au Palais Bourbon, pas vraiment … La lecture du compte-rendu de la séance du 2 avril 2015 est, à cet égard, atterrante quand bien même d’autres professionnels du droit, avocats eux aussi, ont su appeler à la raison avec talent et dans le même temps.

Ces manifestations urticantes ne sont pas nouvelles mais, dans le contexte ambiant, il peut être instructif d’aller au delà du jeu politicien en s’interrogeant sur la crédibilité de la mise en cause du juge de Strasbourg. Comment se réclamer des valeurs de la démocratie tout en proposant la mise à l’écart de l’une de ses principales expressions, le droit à la protection juridictionnelle ?

Inutile de prendre plaisir au jeu de l’arroseur arrosé. Celui-ci verra, en pleine séance, l’initiateur de la dite résolution être cité par ses contradicteurs pour ses propos louangeurs à l’égard de la Cour européenne … lorsqu’il était secrétaire d’Etat en charge des affaires européennes. On en restera à deux critiques principales portées par les signataires de la proposition : l’une relative à l’activisme de la Cour européenne, l’autre visant à interdire l’usage du recours individuel aux terroristes.

1. De l’activisme de la Cour européenne des droits de l’Homme

Continue reading “La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas”

(EPPO) European Public Prosecutor : are the EU member States slowly stifling an European project…?

 By Maria Giovanna VEROUX (FREE-Group Trainee)

1. Foreword

According to the European Commission every year several hundred million euros are lost due to fraud.  Data collected and analysed during the period 2007-2013 identify “suspected fraud” averaging about €500 million every  year, but, it is more than likely that the real amount of fraud is significantly higher [I] .
These data clearly demonstrate that the Union’s financial interests are still not adequately protected and that a low level of protection corresponds, on the other hand, to a high level of fraud.

Currently, only national authorities can investigate and prosecute EU fraud. While the role of the existing EU bodies involved in actions to fight offences against the EU’s financial interests, even if this has increased over the years, still mainly focuses on coordination, cooperation, exchange of information and administrative investigations.
OLAF – the European Anti-Fraud Office established in 1999 – can only conduct administrative anti-fraud investigations and refer the results of its to the competent national authorities which then decide independently whether or not to initiate criminal proceedings (statistics shows that only 1 in 5 cases transferred by OLAF to the national prosecution authorities leads to a conviction).
Eurojust – the European Agency for criminal justice cooperation, established in 2001 – plays an important role in cross-border cases involving the financial interests of the EU, stimulating  and improving the coordination of investigations and cooperation between the competent authorities in the Member States. However, like OLAF, does not have yet the power to start criminal investigations or prosecutions in the Member States.

2. The EPPO Commission proposal [II].

In order to:
– contribute to the strengthening of the protection of the Union’s financial interests and further development of an area of justice, and to enhance the trust of EU businesses and citizens in the Union’s institutions, while respecting all fundamental rights enshrined in the Charter.
 – establish a coherent European system for investigation and prosecution of offences affecting the EU’s financial interests.
– ensure a more efficient and effective investigation and prosecution of offences affecting the EU’s financial interests.
– enhance deterrence of committing offences affecting the EU’s financial interests.
– increase the number of prosecutions, leading to more convictions and recovery of fraudulently obtained Union funds.
– ensure close cooperation and effective information exchange between the European and national competent authorities[III];

In July 2013 the Commission adopted its Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office (EPPO) in order to create a single strong and independent Office that is able to investigate, prosecute and bring to court the perpetrators of criminal offences affecting the Union’s financial interest.
The proposal is the result of a long consultation process that started with the Corpus Juris [IV] elaborated and presented by an expert group in 1997 and 2000 (subsequent follow-up study), followed by the Green Paper on criminal-law protection of the financial interests of the Community [V] presented by the Commission in 2001 and the unratified Treaty establishing the Constitution for Europe in 2004 [VI].
Finally Article 86 of the Treaty on the Functioning of the European Union (TFEU) [VII] contains the legal basis for the establishment of the EPPO providing for a special legislative procedure requiring unanimity in the Council and European Parliament approbation.
With unanimity being a difficult condition to meet it is worth recalling that an enhanced cooperation would also be possible if supported by at least nine Member States.
It also foresees – with the unanimity of the Council, the consent of the European Parliament and the consultation of the Commission – the possible extension of competences and powers of the EPPO to serious crime having a cross-border dimension.

Two months after the Commission’s proposal, fourteen national parliamentary chambers[VIII] in 11 member states asked the commission to review its proposal and achieved enough votes to launch the so-called “yellow card” procedure.
This possibility is foreseen in Protocol 2 (art. 6 and 7) [IX] annexed to the Treaties on the application of the principles of subsidiarity and proportionality.
From the date of transmission of a draft legislative act, national Parliaments have eight weeks to consider whether it is compatible or not with the principle of subsidiarity.
In the case where reasoned opinions represent at least one third of all the votes allocated to the National Parliaments, the draft must be reviewed.
On the basis of that review, the Commission decides whether to maintain, amend or withdraw the proposal, and it must give reasons for its decision.
The Commission, after having re-examined the text, decided to maintain it concluding that it complies with the principle of subsidiarity enshrined in Article 5 TUE and that a withdrawal or an amendment of the proposal was not opportune[X].

On the basis of the proposal submitted by the European Commission, the EPPO Regulation has since been discussed in the Council of the European Union.

3. The redrafted text of the Council Greek Presidency – From a simple and original vertical structure to a complex and traditional horizontal one Continue reading “(EPPO) European Public Prosecutor : are the EU member States slowly stifling an European project…?”

(EPPO) FUNDAMENTAL RIGHTS AND THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE: AN UNCOMFORTABLE SILENCE

ORIGINAL PUBLISHED ON EU LAW ANALYSIS BLOG

Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma and Louis Middelkoop are members of the Meijers Committee (www.commissie-meijers.nl/en).

Friday, 10 April 2015

The EU’s proposal for the establishment of a European Public Prosecutor’s Office (EPPO) has created quite a stir in the Member States. The EPPO would be competent to investigate and prosecute fraud with EU money (e.g. the misuse of EU funds), although there is already talk about extending its competence to terrorism and other serious crime. So far, political negotiations over the draft regulation have focused on the question why the EU is in in need of this new supranational body in the first place, and on the extent of the EU’s influence on national affairs, particularly in such a sensitive area as criminal justice.

Supposing that in the near future the European Public Prosecutor’s Office will indeed be established, more attention to the substance of the current proposal needs to be paid without delay, particularly to the protection of fundamental rights. The current proposal raises serious concerns on this matter, as it is unclear who will supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing of procedural rights in transnational criminal law enforcement has already frequently been addressed by legislation. After all, Member States of the EU do cooperate intensively on a daily basis: think of the European arrest warrant mechanism, which enables the rapid surrender of suspects from one Member State to another. All such cooperation mechanisms contain provisions on legal protection.

The proposal to establish an EPPO takes criminal justice integration significantly further than any other instrument created thus far. The EPPO will be authorized to take intrusive coercive measures, such as ordering arrests, interceptions of telecommunication, or house searches, just as national prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO would be competent to apply these measures in all the territories of the participating Member States, without the restriction of national borders. It might therefore be expected that the ministers of justice, the European Parliament, and the European Commission would hold extensive debates on the precise conditions for searches, telephone interceptions, arrests, and pre-trial detention in supranational investigations. Surprisingly, they have not.

On the contrary, in their efforts to prevent a further transfer of power to ‘Brussels’, most Member States oppose any further approximation of criminal procedure. And those who do support the establishment of an EPPO hold that citizens’ rights are already sufficiently protected, referring to the fundamental rights acquis laid down in treaties and the EU Charter. They also point out that the EPPO must respect the additional procedural guarantees provided in the domestic legal order of the Member State where it is conducting its operations.

 From national to transnational criminal procedure Continue reading “(EPPO) FUNDAMENTAL RIGHTS AND THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE: AN UNCOMFORTABLE SILENCE”

Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies

The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. The Meijers Committee has researched and found several shortcomings in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015 on these inconsistencies, the Meijers Committee has issued three short notes discussing the issues further.

The first note concerns the need to reform current mutual recognition instruments that overlap but contradict each other in their content and to strengthen judicial review in criminal proceedings.

The second note concerns the need ensure that citizens can foresee under which legal regime the EPPO will conduct an investigation against them and the effectiveness of national judicial review in a transnational context.

The third note concerns the use of criteria to determine whether material prohibitions are appropriate at the EU level and the role of the European Parliament therein.

1. Inconsistent legal protection in mutual recognition instruments

Continue reading “Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies”

“Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1)

by Emilio DE CAPITANI

Foreword

Last week the European Parliament Civil liberties Committee (LIBE) debated for the first time how to legally frame the problem of “foreign fighters” operating in Syria and Iraq under the flag of the so called Islamic State and of Al Nusra or other insurgent movements at the EU level. The issue has been put on the LIBE agenda because the European Commission and the Council informed the EP of their intention to negotiate a protocol to the European Convention against terrorism within the framework of the Council of Europe, to implement the United Nations Security Council resolution 2178 on foreign “terrorist” fighters.

As happens very often when international, supranational and national law are intertwined, the issue is very complex. To make things even harder, the boundaries in international law between armed conflicts and international terrorism have been  progressively blurring since 9/11 and, since the entry into force of the Lisbon Treaty competences in criminal matters and terrorism, they are increasingly being dealt with at the EU level.

In the following pages I will try to highlight the main aspects of the issue of Foreign Fighters starting from its International law dimension by taking as basic references:
– the excellent briefing  “Foreign Fighters under International Law”of the Geneva Academy of International Humanitarian Law and Human Rights; and
– the very timely and focused remarks of the former United Nations Special Rapporteur  on human rights and counter-terrorism Martin Scheinin on UNSC Resolution 2178. See:
“Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters”  and “A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of Global Governance”

In a second post, I will focus on the specific relation between the Council of Europe, the European Union and EU Member States on this issue.

1 Foreign fighters before 9/11

The phenomenon of “foreign” fighters taking part in an armed conflict, or in an insurgency movement, in a different country than their own is not new.  Examples in the last century have included the Spanish civil war in 1936  or the 1948 Arab-Israeli War, the war in Afghanistan following the 1989 Soviet invasion, the Bosnian conflicts in the 1990s, and the violence in Chechnya and Dagestan, in Iraq, Mali, Nigeria, Somalia, Syria, and Yemen, not to speak of the recent Russian-Ukrainian crisis.

1.1 Foreign fighters as “combatants” in an armed conflict

Until recent times, from an international law perspective, the legal regime to be applied to foreign fighters depended on the nature of the armed conflict in which they were taking part. In case of armed conflict between States (International Armed Conflict) the legal regime was set by the four 1949 Geneva Conventions (1) which recognise the legitimate use of force, the role of “combatant” as well as the status of “Prisoner of War” (2). In case of “non international” armed conflicts which arise within a State and which could be defined as a situation of armed violence between regular armed forces and one or more organized armed non-state groups, the legal regime applicable is the less stringent regime of Common Article 3 of the 1949 Geneva Conventions .

1.2 Terrorist acts during armed conflicts

It is worth recalling that while international law recognises that the use of force is inevitable during an armed conflict, it also prohibits acts which aim primarily to spread terror among civilian populations. These acts can be considered “war crimes” when they consist of ‘acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population’ (“actus reus”) where the perpetrator ‘wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence’. International Courts have therefore considered that the “mens rea” is a further element of the international criminal offence (i.e. the requisite intent), namely, the specific intent to spread terror.

The tricky point is that even if they could partially overlap when terrorist activities can be framed as “war crimes”, the legal frameworks at the international level on armed conflicts and against international terrorism have different scopes (3). The proof is that the use of force during an armed conflict (if it complies with International Humanitarian law) is legitimate and is not an act of terrorism (especially when fighting for self-determination). (4)

1.3 Preventing the movement of Foreign fighters Continue reading ““Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1)”